Florida Senate - 2012                          SENATOR AMENDMENT
       Bill No. CS for SB 670
       
       
       
       
       
       
                                Barcode 561756                          
       
                              LEGISLATIVE ACTION                        
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       Senators Richter, Gaetz, and Ring moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Between lines 27 and 28
    4  insert:
    5         Section 2. Section 702.10, Florida Statutes, is amended to
    6  read:
    7         702.10 Order to show cause; entry of final judgment of
    8  foreclosure; payment during foreclosure.—
    9         (1) A lienholder After a complaint in a foreclosure
   10  proceeding has been filed, the mortgagee may request an order to
   11  show cause for the entry of final judgment in a foreclosure
   12  action. For purposes of this section, the term “lienholder”
   13  includes the plaintiff and a defendant to the action who holds a
   14  lien encumbering the property or a defendant who, by virtue of
   15  its status as a condominium association, cooperative
   16  association, or homeowners’ association, may file a lien against
   17  the real property subject to foreclosure. Upon filing, and the
   18  court shall immediately review the request and the court file in
   19  chambers and without a hearing complaint. If, upon examination
   20  of the court file complaint, the court finds that the complaint
   21  is verified and alleges a cause of action to foreclose on real
   22  property, the court shall promptly issue an order directed to
   23  the other parties named in the action defendant to show cause
   24  why a final judgment of foreclosure should not be entered.
   25         (a) The order shall:
   26         1. Set the date and time for a hearing on the order to show
   27  cause. However, The date for the hearing may not occur be set
   28  sooner than the later of 20 days after the service of the order
   29  to show cause or 45 days after the service of the initial
   30  complaint. When service is obtained by publication, the date for
   31  the hearing may not be set sooner than 55 30 days after the
   32  first publication. The hearing must be held within 60 days after
   33  the date of service. Failure to hold the hearing within such
   34  time does not affect the validity of the order to show cause or
   35  the jurisdiction of the court to issue subsequent orders.
   36         2. Direct the time within which service of the order to
   37  show cause and the complaint must be made upon the defendant.
   38         3. State that the filing of defenses by a motion,
   39  responsive pleading, affidavits, or other papers or by a
   40  verified or sworn answer at or before the hearing to show cause
   41  may constitute constitutes cause for the court not to enter the
   42  attached final judgment.
   43         4. State that a the defendant has the right to file
   44  affidavits or other papers before at the time of the hearing to
   45  show cause and may appear personally or by way of an attorney at
   46  the hearing.
   47         5. State that, if a the defendant files defenses by a
   48  motion, a verified or sworn answer, affidavits, or other papers
   49  or appears personally or by way of an attorney at the time of
   50  the hearing, the hearing time will may be used to hear and
   51  consider the defendant’s motion, answer, affidavits, other
   52  papers, and other evidence and argument as may be presented by
   53  the defendant or the defendant’s attorney. The order shall also
   54  state that the court may enter an order of final judgment of
   55  foreclosure at the hearing. If such a determination is entered,
   56  the court shall enter a final judgment of foreclosure ordering
   57  the clerk of the court to conduct a foreclosure sale.
   58         6. State that, if a the defendant fails to appear at the
   59  hearing to show cause or fails to file defenses by a motion or
   60  by a verified or sworn answer or files an answer not contesting
   61  the foreclosure, such the defendant may be considered to have
   62  waived the right to a hearing, and in such case, the court may
   63  enter a default against such defendant and, if appropriate, a
   64  final judgment of foreclosure ordering the clerk of the court to
   65  conduct a foreclosure sale.
   66         7. State that if the mortgage provides for reasonable
   67  attorney attorney’s fees and the requested attorney attorney’s
   68  fees do not exceed 3 percent of the principal amount owed at the
   69  time of filing the complaint, it is unnecessary for the court to
   70  hold a hearing or adjudge the requested attorney attorney’s fees
   71  to be reasonable.
   72         8. Attach the form of the proposed final judgment of
   73  foreclosure which the movant requests the court to will enter,
   74  if the defendant waives the right to be heard at the hearing on
   75  the order to show cause. The form may contain blanks for the
   76  court to enter the amounts due.
   77         9. Require the party seeking final judgment mortgagee to
   78  serve a copy of the order to show cause on the other parties the
   79  mortgagor in the following manner:
   80         a. If a party the mortgagor has been personally served with
   81  the complaint and original process, or the other party is the
   82  plaintiff in the action, service of the order to show cause on
   83  that party order may be made in the manner provided in the
   84  Florida Rules of Civil Procedure.
   85         b. If a defendant the mortgagor has not been personally
   86  served with the complaint and original process, the order to
   87  show cause, together with the summons and a copy of the
   88  complaint, shall be served on the party mortgagor in the same
   89  manner as provided by law for original process. Service of the
   90  complaint and original process by mail or publication is not
   91  personal service for purposes of this subparagraph.
   92  
   93  Any final judgment of foreclosure entered under this subsection
   94  is for in rem relief only. Nothing in This subsection does not
   95  shall preclude the entry of a deficiency judgment where
   96  otherwise allowed by law. It is the intent of the Legislature
   97  that this alternative procedure may run simultaneously with
   98  other court procedures.
   99         (b) The right to be heard at the hearing to show cause is
  100  waived if a the defendant, after being served as provided by law
  101  with an order to show cause, engages in conduct that clearly
  102  shows that the defendant has relinquished the right to be heard
  103  on that order. The defendant’s failure to file defenses by a
  104  motion or by a sworn or verified answer, affidavits, or other
  105  papers or to appear personally or by way of an attorney at the
  106  hearing duly scheduled on the order to show cause presumptively
  107  constitutes conduct that clearly shows that the defendant has
  108  relinquished the right to be heard. If a defendant files
  109  defenses by a motion, or by a verified or sworn answer,
  110  affidavits, or other papers at or before the hearing, such
  111  action may constitute constitutes cause and may preclude
  112  precludes the entry of a final judgment at the hearing to show
  113  cause.
  114         (c) In a mortgage foreclosure proceeding, when a final
  115  default judgment of foreclosure has been entered against the
  116  mortgagor and the note or mortgage provides for the award of
  117  reasonable attorney attorney’s fees, it is unnecessary for the
  118  court to hold a hearing or adjudge the requested attorney
  119  attorney’s fees to be reasonable if the fees do not exceed 3
  120  percent of the principal amount owed on the note or mortgage at
  121  the time of filing, even if the note or mortgage does not
  122  specify the percentage of the original amount that would be paid
  123  as liquidated damages.
  124         (d) If the court finds that all defendants have the
  125  defendant has waived the right to be heard as provided in
  126  paragraph (b), the court shall promptly enter a final judgment
  127  of foreclosure without the need for further hearing if the
  128  plaintiff has shown entitlement to a final judgment and upon the
  129  filing with the court of the original note, satisfaction of the
  130  conditions for establishment of a lost note, or upon a showing
  131  to the court that the obligation to be foreclosed is not
  132  evidenced by a promissory note or other negotiable instrument.
  133  If the court finds that a the defendant has not waived the right
  134  to be heard on the order to show cause, the court shall then
  135  determine whether there is cause not to enter a final judgment
  136  of foreclosure. If the court finds that the defendant has not
  137  shown cause, the court shall promptly enter a judgment of
  138  foreclosure. If the time allotted for the hearing is
  139  insufficient, the court may announce at the hearing a date and
  140  time for the continued hearing. Only the parties who appear,
  141  individually or through an attorney, at the initial hearing must
  142  be notified of the date and time of the continued hearing.
  143         (2) This subsection does not apply to foreclosure of an
  144  owner-occupied residence. As part of any other In an action for
  145  foreclosure, and in addition to any other relief that the court
  146  may award other than residential real estate, the plaintiff the
  147  mortgagee may request that the court enter an order directing
  148  the mortgagor defendant to show cause why an order to make
  149  payments during the pendency of the foreclosure proceedings or
  150  an order to vacate the premises should not be entered.
  151         (a) The order shall:
  152         1. Set the date and time for hearing on the order to show
  153  cause. However, the date for the hearing may shall not be set
  154  sooner than 20 days after the service of the order. If Where
  155  service is obtained by publication, the date for the hearing may
  156  shall not be set sooner than 30 days after the first
  157  publication.
  158         2. Direct the time within which service of the order to
  159  show cause and the complaint shall be made upon each the
  160  defendant.
  161         3. State that a the defendant has the right to file
  162  affidavits or other papers at the time of the hearing and may
  163  appear personally or by way of an attorney at the hearing.
  164         4. State that, if a the defendant fails to appear at the
  165  hearing to show cause and fails to file defenses by a motion or
  166  by a verified or sworn answer, the defendant is may be deemed to
  167  have waived the right to a hearing and in such case the court
  168  may enter an order to make payment or vacate the premises.
  169         5. Require the movant mortgagee to serve a copy of the
  170  order to show cause on the defendant mortgagor in the following
  171  manner:
  172         a. If a defendant the mortgagor has been served with the
  173  complaint and original process, service of the order may be made
  174  in the manner provided in the Florida Rules of Civil Procedure.
  175         b. If a defendant the mortgagor has not been served with
  176  the complaint and original process, the order to show cause,
  177  together with the summons and a copy of the complaint, shall be
  178  served on the defendant mortgagor in the same manner as provided
  179  by law for original process.
  180         (b) The right of a defendant to be heard at the hearing to
  181  show cause is waived if the defendant, after being served as
  182  provided by law with an order to show cause, engages in conduct
  183  that clearly shows that the defendant has relinquished the right
  184  to be heard on that order. A The defendant’s failure to file
  185  defenses by a motion or by a sworn or verified answer or to
  186  appear at the hearing duly scheduled on the order to show cause
  187  presumptively constitutes conduct that clearly shows that the
  188  defendant has relinquished the right to be heard.
  189         (c) If the court finds that a the defendant has waived the
  190  right to be heard as provided in paragraph (b), the court may
  191  promptly enter an order requiring payment in the amount provided
  192  in paragraph (f) or an order to vacate.
  193         (d) If the court finds that the mortgagor has not waived
  194  the right to be heard on the order to show cause, the court
  195  shall, at the hearing on the order to show cause, consider the
  196  affidavits and other showings made by the parties appearing and
  197  make a determination of the probable validity of the underlying
  198  claim alleged against the mortgagor and the mortgagor’s
  199  defenses. If the court determines that the plaintiff mortgagee
  200  is likely to prevail in the foreclosure action, the court shall
  201  enter an order requiring the mortgagor to make the payment
  202  described in paragraph (e) to the plaintiff mortgagee and
  203  provide for a remedy as described in paragraph (f). However, the
  204  order shall be stayed pending final adjudication of the claims
  205  of the parties if the mortgagor files with the court a written
  206  undertaking executed by a surety approved by the court in an
  207  amount equal to the unpaid balance of the lien being foreclosed
  208  the mortgage on the property, including all principal, interest,
  209  unpaid taxes, and insurance premiums paid by the plaintiff the
  210  mortgagee.
  211         (e) If In the event the court enters an order requiring the
  212  mortgagor to make payments to the plaintiff mortgagee, payments
  213  shall be payable at such intervals and in such amounts provided
  214  for in the mortgage instrument before acceleration or maturity.
  215  The obligation to make payments pursuant to any order entered
  216  under this subsection shall commence from the date of the motion
  217  filed under this section hereunder. The order shall be served
  218  upon the mortgagor no later than 20 days before the date
  219  specified for the first payment. The order may permit, but may
  220  shall not require, the plaintiff mortgagee to take all
  221  appropriate steps to secure the premises during the pendency of
  222  the foreclosure action.
  223         (f) If In the event the court enters an order requiring
  224  payments, the order shall also provide that the plaintiff is
  225  mortgagee shall be entitled to possession of the premises upon
  226  the failure of the mortgagor to make the payment required in the
  227  order unless at the hearing on the order to show cause the court
  228  finds good cause to order some other method of enforcement of
  229  its order.
  230         (g) All amounts paid pursuant to this section shall be
  231  credited against the mortgage obligation in accordance with the
  232  terms of the loan documents;, provided, however, that any
  233  payments made under this section do shall not constitute a cure
  234  of any default or a waiver or any other defense to the mortgage
  235  foreclosure action.
  236         (h) Upon the filing of an affidavit with the clerk that the
  237  premises have not been vacated pursuant to the court order, the
  238  clerk shall issue to the sheriff a writ for possession which
  239  shall be governed by the provisions of s. 83.62.
  240         (i) For purposes of this subsection, there is a rebuttable
  241  presumption that a residential property for which a homestead
  242  exemption for taxation was granted according to the certified
  243  rolls of the latest assessment by the county property appraiser,
  244  before the filing of the foreclosure action, is an owner
  245  occupied residential property.
  246         (3) The Supreme Court is requested to amend the Florida
  247  Rules of Civil Procedure to provide for expedited foreclosure
  248  proceedings in conformity with this section and is requested to
  249  develop and publish forms for use under this section.
  250  
  251  ================= T I T L E  A M E N D M E N T ================
  252         And the title is amended as follows:
  253         Delete line 10
  254  and insert:
  255         notice of lien; amending s. 702.10, F.S.; expanding
  256         the class of persons authorized to move for expedited
  257         foreclosure; defining the term “lienholder”; providing
  258         requirements and procedures with respect to an order
  259         directed to defendants to show cause why a final
  260         judgment of foreclosure should not be entered;
  261         providing that certain failures by a defendant to make
  262         certain filings or to make certain appearances may
  263         have specified legal consequences; requiring the court
  264         to enter a final judgment of foreclosure and order a
  265         foreclosure sale under certain circumstances; revising
  266         a restriction on a mortgagee to request a court to
  267         order a mortgagor defendant to make payments or to
  268         vacate the premises during an action to foreclose on
  269         residential real estate to provide that the
  270         restriction applies to all but owner-occupied
  271         residential property; providing a presumption
  272         regarding owner-occupied residential property;
  273         requesting the Supreme Court to adopt rules and forms
  274         for use in expedited foreclosure proceedings;
  275         providing an effective date.