Florida Senate - 2013 SB 1666
By Senator Latvala
20-00442B-13 20131666__
1 A bill to be entitled
2 An act relating to mortgage foreclosures; amending s.
3 25.073, F.S.; providing that a retired justice or
4 retired judge may consent to temporary duty assigned
5 by the Chief Justice to assist with the backlog of
6 foreclosure cases; providing that the term
7 “termination” as defined in ch. 121, F.S., does not
8 apply to such temporary duty; providing that such
9 temporary duty is not considered reemployment or
10 employment after retirement for purposes of chapter
11 121, F.S., and that renewed membership in the Florida
12 Retirement System is not authorized; amending s.
13 45.031, F.S.; providing that the second publication of
14 the notice of sale may be published on a publicly
15 accessible website of the clerk of the court in lieu
16 of publication in any other form of media; revising
17 the contents of the notice of sale; amending s.
18 50.011, F.S.; providing that certain legal notice
19 requirements do not apply to an electronic publication
20 of a notice of sale on a publicly accessible Internet
21 website; creating s. 50.015, F.S.; requiring that a
22 publicly accessible Internet website must be approved
23 for legal publication, advertisement, and notice by
24 the Florida Clerks of Court Operations Corporation;
25 describing conditions and requirements for a publicly
26 accessible Internet website; requiring 24-hour
27 customer support; requiring that legal publication,
28 advertisement, or notice of foreclosure action be
29 posted within 3 business days, excluding court
30 holidays, after the date for the foreclosure sale is
31 set; authorizing a clerk of court to contract with a
32 publicly accessible Internet website provider for
33 legal publication of notice of foreclosure action;
34 providing for maximum publication fees; amending s.
35 95.11, F.S.; revising the limitations period for
36 commencing an action to enforce a claim of a
37 deficiency judgment after a foreclosure action;
38 providing for applicability to existing causes of
39 action; providing that the amendments made by this act
40 to s. 95.11, F.S., apply to any action commenced on or
41 after July 1, 2013; amending s. 121.021, F.S.;
42 defining terms; providing for the applicability of the
43 term “termination"; amending s. 121.091, F.S.;
44 providing that as of a specified date a retired
45 justice or retired judge is not subject to certain
46 limitations otherwise applicable to retired employees;
47 amending s. 121.591, F.S.; providing that, as of a
48 specified date, a retired justice or retired judge who
49 returns to temporary employment as a senior judge in
50 any court may continue to receive a distribution of
51 his or her retirement account after providing proof of
52 termination from his or her regularly established
53 position; creating s. 702.015, F.S.; providing
54 legislative intent; specifying required contents of a
55 complaint seeking to foreclose on certain types of
56 residential properties with respect to the authority
57 of the plaintiff to foreclose on the note and the
58 location of the note; authorizing sanctions against
59 plaintiffs who fail to comply with complaint
60 requirements; providing for non-applicability to
61 proceedings involving timeshare interests; amending s.
62 702.035, F.S.; providing for the applicability of
63 electronic publication if such publication effects
64 advertisement, publication, or legal notice regarding
65 a foreclosure proceeding; providing that only the
66 costs charged by the host of the Internet website may
67 be charged as costs in the action; creating s.
68 702.036, F.S.; requiring a court to treat a collateral
69 attack on a final judgment of foreclosure on a
70 mortgage as a claim for monetary damages under certain
71 circumstances; prohibiting such court from granting
72 certain relief affecting title to the foreclosed
73 property; providing for construction relating to the
74 rights of certain persons to seek specified types of
75 relief or pursue claims against the foreclosed
76 property under certain circumstances; amending s.
77 702.06, F.S.; limiting the amount of a deficiency
78 judgment; amending s. 702.10, F.S.; revising the class
79 of persons authorized to move for expedited
80 foreclosure to include lienholders; defining the term
81 “lienholder”; providing requirements and procedures
82 with respect to an order directed to defendants to
83 show cause why a final judgment of foreclosure should
84 not be entered; providing that certain failures by a
85 defendant to make certain filings or to make certain
86 appearances may have specified legal consequences;
87 requiring the court to enter a final judgment of
88 foreclosure and order a foreclosure sale under certain
89 circumstances; revising a restriction on a mortgagee
90 to request a court to order a mortgagor defendant to
91 make payments or to vacate the premises during an
92 action to foreclose on residential real estate to
93 provide that the restriction applies to all but owner
94 occupied residential property; providing a presumption
95 regarding owner-occupied residential property;
96 creating s. 702.11, F.S.; providing requirements for
97 reasonable means of providing adequate protection
98 under s. 673.3091, F.S., in mortgage foreclosures of
99 certain residential properties; providing for
100 liability of persons who wrongly claim to be holders
101 of or entitled to enforce a lost, stolen, or destroyed
102 note and cause the mortgage secured thereby to be
103 foreclosed in certain circumstances; providing for
104 construction and applicability; declaring that the act
105 is remedial in nature and applies to all mortgages
106 encumbering real property and all promissory notes
107 secured by a mortgage, whether executed before, on, or
108 after the effective date of this act; requiring that
109 employer contribution rates be adjusted; providing a
110 directive to the Division of Law Revision and
111 Information; providing legislature findings;
112 requesting the Florida Supreme Court to adopt rules
113 and forms to expedite foreclosure proceedings;
114 providing that certain specified provisions of the act
115 take effect only if the Legislature appropriates a
116 certain amount on a recurring basis to the judicial
117 system and if the Governor does not veto the
118 appropriation; providing that certain sections of the
119 act stand repealed on a stated date; providing an
120 effective date.
121
122 Be It Enacted by the Legislature of the State of Florida:
123
124 Section 1. Subsection (4) is added to section 25.073,
125 Florida Statutes, to read:
126 25.073 Retired justices or judges assigned to temporary
127 duty; additional compensation; appropriation.—
128 (4) To assist with the backlog of foreclosure cases and
129 otherwise assist with the caseload in the court system, a
130 retired justice or retired judge may be reemployed in temporary
131 employment as a senior judge in any court, as assigned by the
132 Chief Justice of the Supreme Court in accordance with s. 2, Art.
133 V of the State Constitution, if the following conditions are
134 met:
135 (a) The justice or judge attains the later of his or her
136 normal retirement age or age when vested and retires under
137 chapter 121.
138 (b) The justice or judge meets the definition of
139 “termination” as provided in s. 121.021(39)(d).
140 (c) The reemployment provisions as provided in s.
141 121.091(9)(c) do not apply to justices or judges reemployed
142 under these provisions.
143 (d) Renewed membership in the Florida Retirement System is
144 not authorized under these provisions.
145 Section 2. Subsection (2) of section 45.031, Florida
146 Statutes, is amended to read:
147 45.031 Judicial sales procedure.—In any sale of real or
148 personal property under an order or judgment, the procedures
149 provided in this section and ss. 45.0315-45.035 may be followed
150 as an alternative to any other sale procedure if so ordered by
151 the court.
152 (2) PUBLICATION OF SALE.—Notice of sale shall be published
153 once a week for 2 consecutive weeks in a newspaper of general
154 circulation, as defined in chapter 50, published in the county
155 where the sale is to be held. The second publication shall be at
156 least 5 days before the sale or, in the alternative, may be
157 published on a publicly accessible website of the clerk of the
158 court authorized by s. 50.015 in lieu of publication in another
159 form of media. The notice of sale must shall contain:
160 (a) A description of the property to be sold.
161 (b) The time and place of sale.
162 (c) A statement that the sale will be made pursuant to the
163 order or final judgment.
164 (d) The caption of the action.
165 (e) The name of the clerk making the sale.
166 (f) A statement that any person claiming an interest in the
167 surplus from the sale, if any, other than the property owner as
168 of the date of the lis pendens must file a claim within 60 days
169 after the sale.
170 (g) A statement of the name of the newspaper or the website
171 home page address in, or on which, the notice will be published.
172
173 The court, in its discretion, may enlarge the time of the sale.
174 Notice of the changed time of sale shall be published as
175 provided herein.
176 Section 3. Section 50.011, Florida Statutes, is amended to
177 read:
178 50.011 Where and in what language legal notices to be
179 published.—
180 (1) Whenever by statute an official or legal advertisement
181 or a publication, or notice in a newspaper has been or is
182 directed or permitted in the nature of or in lieu of process, or
183 for constructive service, or in initiating, assuming, reviewing,
184 exercising or enforcing jurisdiction or power, or for any
185 purpose, including all legal notices and advertisements of
186 sheriffs and tax collectors, the contemporaneous and continuous
187 intent and meaning of such legislation all and singular,
188 existing or repealed, is and has been and is hereby declared to
189 be and to have been, and the rule of interpretation is and has
190 been, a publication in a newspaper printed and published
191 periodically once a week or oftener, containing at least 25
192 percent of its words in the English language, entered or
193 qualified to be admitted and entered as periodicals matter at a
194 post office in the county where published, for sale to the
195 public generally, available to the public generally for the
196 publication of official or other notices and customarily
197 containing information of a public character or of interest or
198 of value to the residents or owners of property in the county
199 where published, or of interest or of value to the general
200 public.
201 (2) As allowed by s. 45.031(2), the requirements of
202 subsection (1) do not apply to any electronic publication of a
203 notice of sale on a publicly accessible Internet website meeting
204 the standards of s. 50.015.
205 Section 4. Section 50.015, Florida Statutes, is created to
206 read:
207 50.015 Publicly accessible Internet website.—
208 (1) A publicly accessible Internet website must be approved
209 for legal publication, advertisement, and notice by the Florida
210 Clerks of Court Operations Corporation and must:
211 (a) Maintain a notice of foreclosure action for 90 days
212 following the first day of posting or for as long as provided in
213 subsection (3), and maintain publications of sales searchable
214 and accessible to users for 10 years following the first day of
215 posting.
216 (b) Receive at least 100,000 total impressions a month,
217 which must be certified by a recognized Internet search engine.
218 As used in this paragraph, the term “impression” means the time
219 at which a notice is viewed once by a visitor on an Internet web
220 page.
221 (c) Maintain 24-hour customer support, along with live
222 electronic communication and telephone support for a minimum of
223 12 hours a day during peak-time usage, and post online tutorials
224 for users.
225 (d) Be maintained on a data center that is compliant with
226 the Statement of Auditing Standards No. 70, and the website
227 provider shall provide the clerk of court with a certificate of
228 compliance with the Standards.
229 (e) Provide 24-hour access at no charge to the chief judge
230 of each judicial circuit and his or her designee, as well as to
231 each clerk of court and each deputy clerk. The website provider
232 must develop and maintain on file and provide to each clerk of
233 court and each chief judge a disaster recovery plan for the
234 website.
235 (2) The website provider shall publish its affidavits
236 electronically in substantial conformity with ss. 50.041 and
237 50.051 and may use an electronic notary seal.
238 (3) Legal publication, advertisement, or notice of
239 foreclosure action shall be posted within 3 business days,
240 excluding court holidays, after the date for the foreclosure
241 sale is set and shall continue for 10 days after the foreclosure
242 sale, or for 90 consecutive days, whichever period is longer.
243 (4) Each clerk of court may contract with a publicly
244 accessible Internet website provider for legal publication of
245 notice of foreclosure action as required by s. 702.035.
246 (5) A publicly accessible Internet website may charge a fee
247 of up to $50 per notice.
248 Section 5. Paragraph (b) of subsection (2) of section
249 95.11, Florida Statutes, is amended, and paragraph (h) is added
250 to subsection (5) of that section, to read:
251 95.11 Limitations other than for the recovery of real
252 property.—Actions other than for recovery of real property shall
253 be commenced as follows:
254 (2) WITHIN FIVE YEARS.—
255 (b) A legal or equitable action on a contract, obligation,
256 or liability founded on a written instrument, except for an
257 action to enforce a claim against a payment bond, which shall be
258 governed by the applicable provisions of paragraph (5)(e), s.
259 255.05(10), s. 337.18(1), or s. 713.23(1)(e), and except for an
260 action for a deficiency judgment governed by paragraph (5)(h).
261 (5) WITHIN ONE YEAR.—
262 (h) An action to enforce a claim of a deficiency related to
263 a note secured by a mortgage against a residential property that
264 is a one-family to four-family dwelling unit. The limitations
265 period shall commence on the day after the certificate is issued
266 by the clerk of court or the day after the mortgagee accepts a
267 deed in lieu of foreclosure.
268 Section 6. The amendments made by this act to s. 95.11,
269 Florida Statutes, apply to any action commenced on or after July
270 1, 2013, regardless of when the cause of action accrued.
271 However, any action that would not have been barred under s.
272 95.11(2)(b), Florida Statutes, before the effective date of this
273 act must be commenced within 5 years after the action accrued or
274 by July 1, 2014, whichever occurs first.
275 Section 7. Subsection (39) of section 121.021, Florida
276 Statutes, is amended to read:
277 121.021 Definitions.—The following words and phrases as
278 used in this chapter have the respective meanings set forth
279 unless a different meaning is plainly required by the context:
280 (39)(a) “Termination” occurs, except as provided in
281 paragraph (b), when a member ceases all employment relationships
282 with participating employers, however:
283 1. For retirements effective before July 1, 2010, if a
284 member is employed by any such employer within the next calendar
285 month, termination shall be deemed not to have occurred. A leave
286 of absence constitutes a continuation of the employment
287 relationship, except that a leave of absence without pay due to
288 disability may constitute termination if such member makes
289 application for and is approved for disability retirement in
290 accordance with s. 121.091(4). The department or state board may
291 require other evidence of termination as it deems necessary.
292 2. For retirements effective on or after July 1, 2010, if a
293 member is employed by any such employer within the next 6
294 calendar months, termination shall be deemed not to have
295 occurred. A leave of absence constitutes a continuation of the
296 employment relationship, except that a leave of absence without
297 pay due to disability may constitute termination if such member
298 makes application for and is approved for disability retirement
299 in accordance with s. 121.091(4). The department or state board
300 may require other evidence of termination as it deems necessary.
301 (b) “Termination” for a member electing to participate in
302 the Deferred Retirement Option Program occurs when the program
303 participant ceases all employment relationships with
304 participating employers in accordance with s. 121.091(13),
305 however:
306 1. For termination dates occurring before July 1, 2010, if
307 the member is employed by any such employer within the next
308 calendar month, termination will be deemed not to have occurred,
309 except as provided in s. 121.091(13)(b)4.c. A leave of absence
310 shall constitute a continuation of the employment relationship.
311 2. For termination dates occurring on or after July 1,
312 2010, if the member becomes employed by any such employer within
313 the next 6 calendar months, termination will be deemed not to
314 have occurred, except as provided in s. 121.091(13)(b)4.c. A
315 leave of absence constitutes a continuation of the employment
316 relationship.
317 (c) Effective July 1, 2011, “termination” for a member
318 receiving a refund of employee contributions occurs when a
319 member ceases all employment relationships with participating
320 employers for 3 calendar months. A leave of absence constitutes
321 a continuation of the employment relationship.
322 (d) Effective July 1, 2013, the act of “termination” for a
323 justice or judge occurs when the justice or judge has reached
324 the later of his or her normal retirement age or age when
325 vested, has terminated all employment under the Florida
326 Retirement System for at least 1 calendar month, and retires
327 from the system. Additionally, the justice or judge must
328 subsequently return to temporary employment as a senior judge in
329 any court, as assigned by the Chief Justice of the Supreme Court
330 in accordance with s. 2, Art. V of the State Constitution.
331 Section 8. Subsection (9) of section 121.091, Florida
332 Statutes, is amended to read:
333 121.091 Benefits payable under the system.—Benefits may not
334 be paid under this section unless the member has terminated
335 employment as provided in s. 121.021(39)(a) or begun
336 participation in the Deferred Retirement Option Program as
337 provided in subsection (13), and a proper application has been
338 filed in the manner prescribed by the department. The department
339 may cancel an application for retirement benefits when the
340 member or beneficiary fails to timely provide the information
341 and documents required by this chapter and the department’s
342 rules. The department shall adopt rules establishing procedures
343 for application for retirement benefits and for the cancellation
344 of such application when the required information or documents
345 are not received.
346 (9) EMPLOYMENT AFTER RETIREMENT; LIMITATION.—
347 (a) Any person who is retired under this chapter, except
348 under the disability retirement provisions of subsection (4),
349 may be employed by an employer that does not participate in a
350 state-administered retirement system and receive compensation
351 from that employment without limiting or restricting in any way
352 the retirement benefits payable to that person.
353 (b) Any person whose retirement is effective before July 1,
354 2010, or whose participation in the Deferred Retirement Option
355 Program terminates before July 1, 2010, except under the
356 disability retirement provisions of subsection (4) or as
357 provided in s. 121.053, may be reemployed by an employer that
358 participates in a state-administered retirement system and
359 receive retirement benefits and compensation from that employer,
360 except that the person may not be reemployed by an employer
361 participating in the Florida Retirement System before meeting
362 the definition of termination in s. 121.021 and may not receive
363 both a salary from the employer and retirement benefits for 12
364 calendar months immediately subsequent to the date of
365 retirement. However, a DROP participant shall continue
366 employment and receive a salary during the period of
367 participation in the Deferred Retirement Option Program, as
368 provided in subsection (13).
369 1. A retiree who violates such reemployment limitation
370 before completion of the 12-month limitation period must give
371 timely notice of this fact in writing to the employer and to the
372 Division of Retirement or the state board and shall have his or
373 her retirement benefits suspended for the months employed or the
374 balance of the 12-month limitation period as required in sub
375 subparagraphs b. and c. A retiree employed in violation of this
376 paragraph and an employer who employs or appoints such person
377 are jointly and severally liable for reimbursement to the
378 retirement trust fund, including the Florida Retirement System
379 Trust Fund and the Public Employee Optional Retirement Program
380 Trust Fund, from which the benefits were paid. The employer must
381 have a written statement from the retiree that he or she is not
382 retired from a state-administered retirement system. Retirement
383 benefits shall remain suspended until repayment has been made.
384 Benefits suspended beyond the reemployment limitation shall
385 apply toward repayment of benefits received in violation of the
386 reemployment limitation.
387 a. A district school board may reemploy a retiree as a
388 substitute or hourly teacher, education paraprofessional,
389 transportation assistant, bus driver, or food service worker on
390 a noncontractual basis after he or she has been retired for 1
391 calendar month. A district school board may reemploy a retiree
392 as instructional personnel, as defined in s. 1012.01(2)(a), on
393 an annual contractual basis after he or she has been retired for
394 1 calendar month. Any member who is reemployed within 1 calendar
395 month after retirement shall void his or her application for
396 retirement benefits. District school boards reemploying such
397 teachers, education paraprofessionals, transportation
398 assistants, bus drivers, or food service workers are subject to
399 the retirement contribution required by subparagraph 2.
400 b. A community college board of trustees may reemploy a
401 retiree as an adjunct instructor or as a participant in a phased
402 retirement program within the Florida Community College System,
403 after he or she has been retired for 1 calendar month. A member
404 who is reemployed within 1 calendar month after retirement shall
405 void his or her application for retirement benefits. Boards of
406 trustees reemploying such instructors are subject to the
407 retirement contribution required in subparagraph 2. A retiree
408 may be reemployed as an adjunct instructor for no more than 780
409 hours during the first 12 months of retirement. A retiree
410 reemployed for more than 780 hours during the first 12 months of
411 retirement must give timely notice in writing to the employer
412 and to the Division of Retirement or the state board of the date
413 he or she will exceed the limitation. The division shall suspend
414 his or her retirement benefits for the remainder of the 12
415 months of retirement. Any retiree employed in violation of this
416 sub-subparagraph and any employer who employs or appoints such
417 person without notifying the division to suspend retirement
418 benefits are jointly and severally liable for any benefits paid
419 during the reemployment limitation period. The employer must
420 have a written statement from the retiree that he or she is not
421 retired from a state-administered retirement system. Any
422 retirement benefits received by the retiree while reemployed in
423 excess of 780 hours during the first 12 months of retirement
424 must be repaid to the Florida Retirement System Trust Fund, and
425 retirement benefits shall remain suspended until repayment is
426 made. Benefits suspended beyond the end of the retiree’s first
427 12 months of retirement shall apply toward repayment of benefits
428 received in violation of the 780-hour reemployment limitation.
429 c. The State University System may reemploy a retiree as an
430 adjunct faculty member or as a participant in a phased
431 retirement program within the State University System after the
432 retiree has been retired for 1 calendar month. A member who is
433 reemployed within 1 calendar month after retirement shall void
434 his or her application for retirement benefits. The State
435 University System is subject to the retired contribution
436 required in subparagraph 2., as appropriate. A retiree may be
437 reemployed as an adjunct faculty member or a participant in a
438 phased retirement program for no more than 780 hours during the
439 first 12 months of his or her retirement. A retiree reemployed
440 for more than 780 hours during the first 12 months of retirement
441 must give timely notice in writing to the employer and to the
442 Division of Retirement or the state board of the date he or she
443 will exceed the limitation. The division shall suspend his or
444 her retirement benefits for the remainder of the 12 months. Any
445 retiree employed in violation of this sub-subparagraph and any
446 employer who employs or appoints such person without notifying
447 the division to suspend retirement benefits are jointly and
448 severally liable for any benefits paid during the reemployment
449 limitation period. The employer must have a written statement
450 from the retiree that he or she is not retired from a state
451 administered retirement system. Any retirement benefits received
452 by the retiree while reemployed in excess of 780 hours during
453 the first 12 months of retirement must be repaid to the Florida
454 Retirement System Trust Fund, and retirement benefits shall
455 remain suspended until repayment is made. Benefits suspended
456 beyond the end of the retiree’s first 12 months of retirement
457 shall apply toward repayment of benefits received in violation
458 of the 780-hour reemployment limitation.
459 d. The Board of Trustees of the Florida School for the Deaf
460 and the Blind may reemploy a retiree as a substitute teacher,
461 substitute residential instructor, or substitute nurse on a
462 noncontractual basis after he or she has been retired for 1
463 calendar month. Any member who is reemployed within 1 calendar
464 month after retirement shall void his or her application for
465 retirement benefits. The Board of Trustees of the Florida School
466 for the Deaf and the Blind reemploying such teachers,
467 residential instructors, or nurses is subject to the retirement
468 contribution required by subparagraph 2.
469 e. A developmental research school may reemploy a retiree
470 as a substitute or hourly teacher or an education
471 paraprofessional as defined in s. 1012.01(2) on a noncontractual
472 basis after he or she has been retired for 1 calendar month. A
473 developmental research school may reemploy a retiree as
474 instructional personnel, as defined in s. 1012.01(2)(a), on an
475 annual contractual basis after he or she has been retired for 1
476 calendar month after retirement. Any member who is reemployed
477 within 1 calendar month voids his or her application for
478 retirement benefits. A developmental research school that
479 reemploys retired teachers and education paraprofessionals is
480 subject to the retirement contribution required by subparagraph
481 2.
482 f. A charter school may reemploy a retiree as a substitute
483 or hourly teacher on a noncontractual basis after he or she has
484 been retired for 1 calendar month. A charter school may reemploy
485 a retired member as instructional personnel, as defined in s.
486 1012.01(2)(a), on an annual contractual basis after he or she
487 has been retired for 1 calendar month after retirement. Any
488 member who is reemployed within 1 calendar month voids his or
489 her application for retirement benefits. A charter school that
490 reemploys such teachers is subject to the retirement
491 contribution required by subparagraph 2.
492 2. The employment of a retiree or DROP participant of a
493 state-administered retirement system does not affect the average
494 final compensation or years of creditable service of the retiree
495 or DROP participant. Before July 1, 1991, upon employment of any
496 person, other than an elected officer as provided in s. 121.053,
497 who is retired under a state-administered retirement program,
498 the employer shall pay retirement contributions in an amount
499 equal to the unfunded actuarial liability portion of the
500 employer contribution which would be required for regular
501 members of the Florida Retirement System. Effective July 1,
502 1991, contributions shall be made as provided in s. 121.122 for
503 retirees who have renewed membership or, as provided in
504 subsection (13), for DROP participants.
505 3. Any person who is holding an elective public office
506 which is covered by the Florida Retirement System and who is
507 concurrently employed in nonelected covered employment may elect
508 to retire while continuing employment in the elective public
509 office if he or she terminates his or her nonelected covered
510 employment. Such person shall receive his or her retirement
511 benefits in addition to the compensation of the elective office
512 without regard to the time limitations otherwise provided in
513 this subsection. A person who seeks to exercise the provisions
514 of this subparagraph as they existed before May 3, 1984, may not
515 be deemed to be retired under those provisions, unless such
516 person is eligible to retire under this subparagraph, as amended
517 by chapter 84-11, Laws of Florida.
518 (c) Any person whose retirement is effective on or after
519 July 1, 2010, or whose participation in the Deferred Retirement
520 Option Program terminates on or after July 1, 2010, who is
521 retired under this chapter, except under the disability
522 retirement provisions of subsection (4) or as provided in s.
523 121.053, may be reemployed by an employer that participates in a
524 state-administered retirement system and receive retirement
525 benefits and compensation from that employer. However, a person
526 may not be reemployed by an employer participating in the
527 Florida Retirement System before meeting the definition of
528 termination in s. 121.021 and may not receive both a salary from
529 the employer and retirement benefits for 6 calendar months after
530 meeting the definition of termination, except as provided in
531 paragraph (f). However, a DROP participant shall continue
532 employment and receive a salary during the period of
533 participation in the Deferred Retirement Option Program, as
534 provided in subsection (13).
535 1. The reemployed retiree may not renew membership in the
536 Florida Retirement System.
537 2. The employer shall pay retirement contributions in an
538 amount equal to the unfunded actuarial liability portion of the
539 employer contribution that would be required for active members
540 of the Florida Retirement System in addition to the
541 contributions required by s. 121.76.
542 3. A retiree initially reemployed in violation of this
543 paragraph and an employer that employs or appoints such person
544 are jointly and severally liable for reimbursement of any
545 retirement benefits paid to the retirement trust fund from which
546 the benefits were paid, including the Florida Retirement System
547 Trust Fund and the Public Employee Optional Retirement Program
548 Trust Fund, as appropriate. The employer must have a written
549 statement from the employee that he or she is not retired from a
550 state-administered retirement system. Retirement benefits shall
551 remain suspended until repayment is made. Benefits suspended
552 beyond the end of the retiree’s 6-month reemployment limitation
553 period shall apply toward the repayment of benefits received in
554 violation of this paragraph.
555 (d) Except as provided in paragraph (f), this subsection
556 applies to retirees, as defined in s. 121.4501(2), of the
557 Florida Retirement System Investment Plan, subject to the
558 following conditions:
559 1. A retiree may not be reemployed with an employer
560 participating in the Florida Retirement System until such person
561 has been retired for 6 calendar months.
562 2. A retiree employed in violation of this subsection and
563 an employer that employs or appoints such person are jointly and
564 severally liable for reimbursement of any benefits paid to the
565 retirement trust fund from which the benefits were paid. The
566 employer must have a written statement from the retiree that he
567 or she is not retired from a state-administered retirement
568 system.
569 (e) The limitations of this subsection apply to
570 reemployment in any capacity irrespective of the category of
571 funds from which the person is compensated except as provided in
572 paragraph (f).
573 (f) Effective July 1, 2013, a retired justice or retired
574 judge who has reached the later of his or her normal retirement
575 age or the age when vested, who has terminated all employment
576 with employers participating under the Florida Retirement System
577 for at least 1 calendar month, and who subsequently returns to
578 temporary employment as a senior judge in any court, as assigned
579 by the Chief Justice of the Supreme Court in accordance with s.
580 2, Art. V of the State Constitution, is not subject to paragraph
581 (c), paragraph (d), or paragraph (e) while reemployed as a
582 senior judge.
583 Section 9. Paragraph (a) of subsection (1) of section
584 121.591, Florida Statutes, is amended to read:
585 121.591 Payment of benefits.—Benefits may not be paid under
586 the Florida Retirement System Investment Plan unless the member
587 has terminated employment as provided in s. 121.021(39)(a) or is
588 deceased and a proper application has been filed as prescribed
589 by the state board or the department. Benefits, including
590 employee contributions, are not payable under the investment
591 plan for employee hardships, unforeseeable emergencies, loans,
592 medical expenses, educational expenses, purchase of a principal
593 residence, payments necessary to prevent eviction or foreclosure
594 on an employee’s principal residence, or any other reason except
595 a requested distribution for retirement, a mandatory de minimis
596 distribution authorized by the administrator, or a required
597 minimum distribution provided pursuant to the Internal Revenue
598 Code. The state board or department, as appropriate, may cancel
599 an application for retirement benefits if the member or
600 beneficiary fails to timely provide the information and
601 documents required by this chapter and the rules of the state
602 board and department. In accordance with their respective
603 responsibilities, the state board and the department shall adopt
604 rules establishing procedures for application for retirement
605 benefits and for the cancellation of such application if the
606 required information or documents are not received. The state
607 board and the department, as appropriate, are authorized to cash
608 out a de minimis account of a member who has been terminated
609 from Florida Retirement System covered employment for a minimum
610 of 6 calendar months. A de minimis account is an account
611 containing employer and employee contributions and accumulated
612 earnings of not more than $5,000 made under the provisions of
613 this chapter. Such cash-out must be a complete lump-sum
614 liquidation of the account balance, subject to the provisions of
615 the Internal Revenue Code, or a lump-sum direct rollover
616 distribution paid directly to the custodian of an eligible
617 retirement plan, as defined by the Internal Revenue Code, on
618 behalf of the member. Any nonvested accumulations and associated
619 service credit, including amounts transferred to the suspense
620 account of the Florida Retirement System Investment Plan Trust
621 Fund authorized under s. 121.4501(6), shall be forfeited upon
622 payment of any vested benefit to a member or beneficiary, except
623 for de minimis distributions or minimum required distributions
624 as provided under this section. If any financial instrument
625 issued for the payment of retirement benefits under this section
626 is not presented for payment within 180 days after the last day
627 of the month in which it was originally issued, the third-party
628 administrator or other duly authorized agent of the state board
629 shall cancel the instrument and credit the amount of the
630 instrument to the suspense account of the Florida Retirement
631 System Investment Plan Trust Fund authorized under s.
632 121.4501(6). Any amounts transferred to the suspense account are
633 payable upon a proper application, not to include earnings
634 thereon, as provided in this section, within 10 years after the
635 last day of the month in which the instrument was originally
636 issued, after which time such amounts and any earnings
637 attributable to employer contributions shall be forfeited. Any
638 forfeited amounts are assets of the trust fund and are not
639 subject to chapter 717.
640 (1) NORMAL BENEFITS.—Under the investment plan:
641 (a) Benefits in the form of vested accumulations as
642 described in s. 121.4501(6) are payable under this subsection in
643 accordance with the following terms and conditions:
644 1. Benefits are payable only to a member, an alternate
645 payee of a qualified domestic relations order, or a beneficiary.
646 2. Benefits shall be paid by the third-party administrator
647 or designated approved providers in accordance with the law, the
648 contracts, and any applicable board rule or policy.
649 3. The member must be terminated from all employment with
650 all Florida Retirement System employers, as provided in s.
651 121.021(39).
652 4. Benefit payments may not be made until the member has
653 been terminated for 3 calendar months, except that the state
654 board may authorize by rule for the distribution of up to 10
655 percent of the member’s account after being terminated for 1
656 calendar month if the member has reached the normal retirement
657 date as defined in s. 121.021. Effective July 1, 2013, a retired
658 justice or retired judge who returns to temporary employment as
659 a senior judge in any court pursuant to s. 25.073 may continue
660 to receive a distribution of his or her account as provided
661 under this paragraph after providing proof of termination from
662 his or her regularly established position.
663 5. If a member or former member of the Florida Retirement
664 System receives an invalid distribution, such person must either
665 repay the full amount within 90 days after receipt of final
666 notification by the state board or the third-party administrator
667 that the distribution was invalid, or, in lieu of repayment, the
668 member must terminate employment from all participating
669 employers. If such person fails to repay the full invalid
670 distribution within 90 days after receipt of final notification,
671 the person may be deemed retired from the investment plan by the
672 state board and is subject to s. 121.122. If such person is
673 deemed retired, any joint and several liability set out in s.
674 121.091(9)(d)2. is void, and the state board, the department, or
675 the employing agency is not liable for gains on payroll
676 contributions that have not been deposited to the person’s
677 account in the investment plan, pending resolution of the
678 invalid distribution. The member or former member who has been
679 deemed retired or who has been determined by the state board to
680 have taken an invalid distribution may appeal the agency
681 decision through the complaint process as provided under s.
682 121.4501(9)(g)3. As used in this subparagraph, the term “invalid
683 distribution” means any distribution from an account in the
684 investment plan which is taken in violation of this section, s.
685 121.091(9), or s. 121.4501.
686 Section 10. Section 702.015, Florida Statutes, is created
687 to read:
688 702.015 Elements of complaint; lost, destroyed, or stolen
689 note affidavit.—
690 (1) The Legislature intends that this section expedite the
691 foreclosure process by ensuring initial disclosure of a
692 plaintiff’s status and the facts supporting that status, thereby
693 ensuring the availability of documents necessary to the
694 prosecution of the case.
695 (2) A complaint that seeks to foreclose a mortgage or other
696 lien on residential real property, including individual units of
697 condominiums and cooperatives, designed principally for
698 occupation by from one to four families which secures a
699 promissory note must:
700 (a) Contain affirmative allegations expressly made by the
701 plaintiff at the time the proceeding is commenced that the
702 plaintiff is the holder of the original note secured by the
703 mortgage; or
704 (b) Allege with specificity the factual basis by which the
705 plaintiff is a person entitled to enforce the note under s.
706 673.3011.
707 (3) If a plaintiff has been delegated the authority to
708 institute a mortgage foreclosure action on behalf of the person
709 entitled to enforce the note, the complaint shall describe the
710 authority of the plaintiff and identify, with specificity, the
711 document that grants the plaintiff the authority to act on
712 behalf of the person entitled to enforce the note. This
713 subsection is intended to require initial disclosure of status
714 and pertinent facts and not to modify law regarding standing or
715 real parties in interest. The term “original note” or “original
716 promissory note” means the signed or executed promissory note
717 rather than a copy thereof. The term includes any renewal,
718 replacement, consolidation, or amended and restated note or
719 instrument given in renewal, replacement, or substitution for a
720 previous promissory note. The term also includes a transferrable
721 record, as defined by the Uniform Electronic Transaction Act in
722 s. 668.50(16).
723 (4) If the plaintiff is in possession of the original
724 promissory note, the plaintiff must file under penalty of
725 perjury a certification with the court, contemporaneously with
726 the filing of the complaint for foreclosure, that the plaintiff
727 is in possession of the original promissory note. The
728 certification must set forth the location of the note, the name
729 and title of the individual giving the certification, the name
730 of the person who personally verified such possession, and the
731 time and date on which the possession was verified. Correct
732 copies of the note and all allonges to the note must be attached
733 to the certification. The original note and the allonges must be
734 filed with the court before the entry of any judgment of
735 foreclosure or judgment on the note.
736 (5) If the plaintiff seeks to enforce a lost, destroyed, or
737 stolen instrument, an affidavit executed under penalty of
738 perjury must be attached to the complaint. The affidavit must:
739 (a) Detail a clear chain of all endorsements, transfers, or
740 assignments of the promissory note that is the subject of the
741 action.
742 (b) Set forth facts showing that the plaintiff is entitled
743 to enforce a lost, destroyed, or stolen instrument pursuant to
744 s. 673.3091. Adequate protection as required under s.
745 673.3091(2) shall be provided before the entry of final
746 judgment.
747 (c) Include as exhibits to the affidavit such copies of the
748 note and the allonges to the note, audit reports showing receipt
749 of the original note, or other evidence of the acquisition,
750 ownership, and possession of the note as may be available to the
751 plaintiff.
752 (6) The court may sanction the plaintiff for failure to
753 comply with this section.
754 (7) This section does not apply to any foreclosure
755 proceeding involving timeshare interests under part III of
756 chapter 721.
757 Section 11. Section 702.035, Florida Statutes, is amended
758 to read:
759 702.035 Legal notice concerning foreclosure proceedings.
760 Whenever a legal advertisement, publication, or notice relating
761 to a foreclosure proceeding is required to be placed in a
762 newspaper or posted on an online website, it is the
763 responsibility of the petitioner or petitioner’s attorney to
764 place such advertisement, publication, or notice. For counties
765 with more than 1 million total population as reflected in the
766 2000 Official Decennial Census of the United States Census
767 Bureau as shown on the official website of the United States
768 Census Bureau, any notice of publication required by this
769 section shall be deemed to have been published in accordance
770 with the law if the notice is published in a newspaper that has
771 been entered as a periodical matter at a post office in the
772 county in which the newspaper is published, is published a
773 minimum of 5 days a week, exclusive of legal holidays, and has
774 been in existence and published a minimum of 5 days a week,
775 exclusive of legal holidays, for 1 year or is a direct successor
776 to a newspaper that has been in existence for 1 year that has
777 been published a minimum of 5 days a week, exclusive of legal
778 holidays. If the advertisement, publication, or notice is
779 effected by an electronic publication, it shall be deemed to
780 have been published in accordance with the law if the
781 requirements of s. 50.011(2) have been met. The advertisement,
782 publication, or notice shall be placed directly by the attorney
783 for the petitioner, by the petitioner if acting pro se, or by
784 the clerk of the court. Only the actual costs charged by the
785 newspaper or by the host of the Internet website for the
786 advertisement, publication, or notice may be charged as costs in
787 the action.
788 Section 12. Section 702.036, Florida Statutes, is created
789 to read:
790 702.036 Finality of mortgage foreclosure judgment.—
791 (1)(a) In any action or proceeding in which a party seeks
792 to set aside, invalidate, or challenge the validity of a final
793 judgment of foreclosure of a mortgage or to establish or
794 reestablish a lien or encumbrance on the property in abrogation
795 of the final judgment of foreclosure of a mortgage, the court
796 shall treat such request solely as a claim for monetary damages
797 and may not grant relief that adversely affects the quality or
798 character of the title to the property, if:
799 1. The party seeking relief from the final judgment of
800 foreclosure of the mortgage was properly served in the
801 foreclosure lawsuit as provided in chapter 48 or chapter 49.
802 2. The final judgment of foreclosure of the mortgage was
803 entered as to the property.
804 3. All applicable appeals periods have run as to the final
805 judgment of foreclosure of the mortgage with no appeals having
806 been taken or any appeals having been finally resolved.
807 4. The property has been acquired for value, by a person
808 not affiliated with the foreclosing lender or the foreclosed
809 owner, at a time in which no lis pendens regarding the suit to
810 set aside, invalidate, or challenge the foreclosure appears in
811 the official records of the county where the property was
812 located.
813 (b) This subsection does not limit the right to pursue any
814 other relief to which a person may be entitled, including, but
815 not limited to, compensatory damages, punitive damages,
816 statutory damages, consequential damages, injunctive relief, or
817 fees and costs, which does not adversely affect the ownership of
818 the title to the property as vested in the unaffiliated
819 purchaser for value.
820 (2) For purposes of this section, the following, without
821 limitation, shall be considered persons affiliated with the
822 foreclosing lender:
823 (a) The foreclosing lender or any loan servicer for the
824 loan being foreclosed;
825 (b) Any past or present owner or holder of the loan being
826 foreclosed;
827 (c) Any maintenance company, holding company, foreclosure
828 services company, or law firm under contract to any entity
829 listed in paragraph (a), paragraph (b), or this paragraph, with
830 regard to the loan being foreclosed; or
831 (d) Any parent entity, subsidiary, or other person who
832 directly, or indirectly through one or more intermediaries,
833 controls or is controlled by, or is under common control with,
834 any entity listed in paragraph (a), paragraph (b), or paragraph
835 (c).
836 (3) After foreclosure of a mortgage based upon the
837 enforcement of a lost, destroyed, or stolen note, a person who
838 is not a party to the underlying foreclosure action but who
839 claims to be the person entitled to enforce the promissory note
840 secured by the foreclosed mortgage has no claim against the
841 foreclosed property after it is conveyed for valuable
842 consideration to a person not affiliated with the foreclosing
843 lender or the foreclosed owner. This section does not preclude
844 the person entitled to enforce the promissory note from pursuing
845 recovery from any adequate protection given pursuant to s.
846 673.3091 or from the party who wrongfully claimed to be the
847 person entitled to enforce the promissory note under s.
848 702.11(2) or otherwise, from the maker of the note, or from any
849 other person against whom it may have a claim relating to the
850 note.
851 Section 13. Section 702.06, Florida Statutes, is amended to
852 read:
853 702.06 Deficiency decree; common-law suit to recover
854 deficiency.—In all suits for the foreclosure of mortgages
855 heretofore or hereafter executed the entry of a deficiency
856 decree for any portion of a deficiency, should one exist, shall
857 be within the sound discretion of the court; however, in the
858 case of an owner-occupied residential property, the amount of
859 the deficiency may not exceed the difference between the
860 judgment amount, or in the case of a short sale, the outstanding
861 debt, and the fair market value of the property on the date of
862 sale. For purposes of this section, there is a rebuttable
863 presumption that a residential property for which a homestead
864 exemption for taxation was granted according to the certified
865 rolls of the latest assessment by the county property appraiser,
866 before the filing of the foreclosure action, is an owner
867 occupied residential property. shall be within the sound
868 judicial discretion of the court, but The complainant shall also
869 have the right to sue at common law to recover such deficiency,
870 unless the court in the foreclosure action has granted or denied
871 a claim for a deficiency judgment provided no suit at law to
872 recover such deficiency shall be maintained against the original
873 mortgagor in cases where the mortgage is for the purchase price
874 of the property involved and where the original mortgagee
875 becomes the purchaser thereof at foreclosure sale and also is
876 granted a deficiency decree against the original mortgagor.
877 Section 14. Section 702.10, Florida Statutes, is amended to
878 read:
879 702.10 Order to show cause; entry of final judgment of
880 foreclosure; payment during foreclosure.—
881 (1) A lienholder After a complaint in a foreclosure
882 proceeding has been filed, the mortgagee may request an order to
883 show cause for the entry of final judgment in a foreclosure
884 action. For purposes of this section, the term “lienholder”
885 includes the plaintiff and a defendant to the action who holds a
886 lien encumbering the property or a defendant who, by virtue of
887 its status as a condominium association, cooperative
888 association, or homeowners’ association, may file a lien against
889 the real property subject to foreclosure. Upon filing, and the
890 court shall immediately review the request and the court file in
891 chambers and without a hearing complaint. If, upon examination
892 of the court file complaint, the court finds that the complaint
893 is verified, complies with s. 702.015, and alleges a cause of
894 action to foreclose on real property, the court shall promptly
895 issue an order directed to the other parties named in the action
896 defendant to show cause why a final judgment of foreclosure
897 should not be entered.
898 (a) The order shall:
899 1. Set the date and time for a hearing on the order to show
900 cause. However, The date for the hearing may not occur be set
901 sooner than the later of 20 days after the service of the order
902 to show cause or 45 days after service of the initial complaint.
903 When service is obtained by publication, the date for the
904 hearing may not be set sooner than 30 days after the first
905 publication. The hearing must be held within 60 days after the
906 date of service. Failure to hold the hearing within such time
907 does not affect the validity of the order to show cause or the
908 jurisdiction of the court to issue subsequent orders.
909 2. Direct the time within which service of the order to
910 show cause and the complaint must be made upon the defendant.
911 3. State that the filing of defenses by a motion,
912 responsive pleading, affidavits, or other papers or by a
913 verified or sworn answer at or before the hearing to show cause
914 may constitute constitutes cause for the court not to enter the
915 attached final judgment.
916 4. State that a the defendant has the right to file
917 affidavits or other papers before at the time of the hearing to
918 show cause and may appear personally or by way of an attorney at
919 the hearing.
920 5. State that, if a the defendant files defenses by a
921 motion, a verified or sworn answer, affidavits, or other papers
922 or appears personally or by way of an attorney at the time of
923 the hearing, the hearing time will may be used to hear and
924 consider whether the defendant’s motion, answer, affidavits,
925 other papers, and other evidence and argument as may be
926 presented by the defendant or the defendant’s attorney raise a
927 genuine issue of material fact which would preclude the entry of
928 summary judgment or otherwise constitute a legal defense to
929 foreclosure. The order shall also state that the court may enter
930 an order of final judgment of foreclosure at the hearing and
931 order the clerk of the court to conduct a foreclosure sale.
932 6. State that, if a the defendant fails to appear at the
933 hearing to show cause or fails to file defenses by a motion or
934 by a verified or sworn answer or files an answer not contesting
935 the foreclosure, such the defendant may be considered to have
936 waived the right to a hearing, and in such case, the court may
937 enter a default against such defendant and, if appropriate, a
938 final judgment of foreclosure ordering the clerk of the court to
939 conduct a foreclosure sale.
940 7. State that if the mortgage provides for reasonable
941 attorney attorney’s fees and the requested attorney attorney’s
942 fees do not exceed 3 percent of the principal amount owed at the
943 time of filing the complaint, it is unnecessary for the court to
944 hold a hearing or adjudge the requested attorney attorney’s fees
945 to be reasonable.
946 8. Attach the form of the proposed final judgment of
947 foreclosure which the movant requests the court to will enter,
948 if the defendant waives the right to be heard at the hearing on
949 the order to show cause.
950 9. Require the party seeking final judgment mortgagee to
951 serve a copy of the order to show cause on the other parties the
952 mortgagor in the following manner:
953 a. If a party the mortgagor has been served pursuant to
954 chapter 48 with the complaint and original process, or the other
955 party is the plaintiff in the action, service of the order to
956 show cause on that party order may be made in the manner
957 provided in the Florida Rules of Civil Procedure.
958 b. If a defendant the mortgagor has not been served
959 pursuant to chapter 48 with the complaint and original process,
960 the order to show cause, together with the summons and a copy of
961 the complaint, shall be served on the party mortgagor in the
962 same manner as provided by law for original process.
963
964 Any final judgment of foreclosure entered under this subsection
965 is for in rem relief only. Nothing in This subsection does not
966 shall preclude the entry of a deficiency judgment where
967 otherwise allowed by law. The Legislature intends that this
968 alternative procedure may run simultaneously with other court
969 procedures.
970 (b) The right to be heard at the hearing to show cause is
971 waived if a the defendant, after being served as provided by law
972 with an order to show cause, engages in conduct that clearly
973 shows that the defendant has relinquished the right to be heard
974 on that order. The defendant’s failure to file defenses by a
975 motion or by a sworn or verified answer, affidavits, or other
976 papers or to appear personally or by way of an attorney at the
977 hearing duly scheduled on the order to show cause presumptively
978 constitutes conduct that clearly shows that the defendant has
979 relinquished the right to be heard. If a defendant files
980 defenses by a motion, or by a verified or sworn answer,
981 affidavits, or other papers or presents evidence at or before
982 the hearing which raise a genuine issue of material fact which
983 would preclude entry of summary judgment or otherwise constitute
984 a legal defense to foreclosure, such action constitutes cause
985 and precludes the entry of a final judgment at the hearing to
986 show cause.
987 (c) In a mortgage foreclosure proceeding, when a final
988 default judgment of foreclosure has been entered against the
989 mortgagor and the note or mortgage provides for the award of
990 reasonable attorney attorney’s fees, it is unnecessary for the
991 court to hold a hearing or adjudge the requested attorney
992 attorney’s fees to be reasonable if the fees do not exceed 3
993 percent of the principal amount owed on the note or mortgage at
994 the time of filing, even if the note or mortgage does not
995 specify the percentage of the original amount that would be paid
996 as liquidated damages.
997 (d) If the court finds that all defendants have the
998 defendant has waived the right to be heard as provided in
999 paragraph (b), the court shall promptly enter a final judgment
1000 of foreclosure without the need for further hearing if the
1001 plaintiff has shown entitlement to a final judgment and upon the
1002 filing with the court of the original note, satisfaction of the
1003 conditions for establishment of a lost note, or upon a showing
1004 to the court that the obligation to be foreclosed is not
1005 evidenced by a promissory note or other negotiable instrument.
1006 If the court finds that a the defendant has not waived the right
1007 to be heard on the order to show cause, the court shall then
1008 determine whether there is cause not to enter a final judgment
1009 of foreclosure. If the court finds that the defendant has not
1010 shown cause, the court shall promptly enter a judgment of
1011 foreclosure. If the time allotted for the hearing is
1012 insufficient, the court may announce at the hearing a date and
1013 time for the continued hearing. Only the parties who appear,
1014 individually or through an attorney, at the initial hearing must
1015 be notified of the date and time of the continued hearing.
1016 (2) Except as provided in paragraph (i), as part of any In
1017 an action for foreclosure, and in addition to any other relief
1018 that the court may award other than residential real estate, the
1019 plaintiff the mortgagee may request that the court enter an
1020 order directing the mortgagor defendant to show cause why an
1021 order to make payments during the pendency of the foreclosure
1022 proceedings or an order to vacate the premises should not be
1023 entered.
1024 (a) The order shall:
1025 1. Set the date and time for hearing on the order to show
1026 cause. However, the date for the hearing may shall not be set
1027 sooner than 20 days after the service of the order. If Where
1028 service is obtained by publication, the date for the hearing may
1029 shall not be set sooner than 30 days after the first
1030 publication.
1031 2. Direct the time within which service of the order to
1032 show cause and the complaint shall be made upon each the
1033 defendant.
1034 3. State that a the defendant has the right to file
1035 affidavits or other papers at the time of the hearing and may
1036 appear personally or by way of an attorney at the hearing.
1037 4. State that, if a the defendant fails to appear at the
1038 hearing to show cause and fails to file defenses by a motion or
1039 by a verified or sworn answer, the defendant is may be deemed to
1040 have waived the right to a hearing and in such case the court
1041 may enter an order to make payment or vacate the premises.
1042 5. Require the movant mortgagee to serve a copy of the
1043 order to show cause on the defendant mortgagor in the following
1044 manner:
1045 a. If a defendant the mortgagor has been served with the
1046 complaint and original process, service of the order may be made
1047 in the manner provided in the Florida Rules of Civil Procedure.
1048 b. If a defendant the mortgagor has not been served with
1049 the complaint and original process, the order to show cause,
1050 together with the summons and a copy of the complaint, shall be
1051 served on the defendant mortgagor in the same manner as provided
1052 by law for original process.
1053 (b) The right of a defendant to be heard at the hearing to
1054 show cause is waived if the defendant, after being served as
1055 provided by law with an order to show cause, engages in conduct
1056 that clearly shows that the defendant has relinquished the right
1057 to be heard on that order. A The defendant’s failure to file
1058 defenses by a motion or by a sworn or verified answer or to
1059 appear at the hearing duly scheduled on the order to show cause
1060 presumptively constitutes conduct that clearly shows that the
1061 defendant has relinquished the right to be heard.
1062 (c) If the court finds that a the defendant has waived the
1063 right to be heard as provided in paragraph (b), the court may
1064 promptly enter an order requiring payment in the amount provided
1065 in paragraph (f) or an order to vacate.
1066 (d) If the court finds that the mortgagor has not waived
1067 the right to be heard on the order to show cause, the court
1068 shall, at the hearing on the order to show cause, consider the
1069 affidavits and other showings made by the parties appearing and
1070 make a determination of the probable validity of the underlying
1071 claim alleged against the mortgagor and the mortgagor’s
1072 defenses. If the court determines that the plaintiff mortgagee
1073 is likely to prevail in the foreclosure action, the court shall
1074 enter an order requiring the mortgagor to make the payment
1075 described in paragraph (e) to the plaintiff mortgagee and
1076 provide for a remedy as described in paragraph (f). However, the
1077 order shall be stayed pending final adjudication of the claims
1078 of the parties if the mortgagor files with the court a written
1079 undertaking executed by a surety approved by the court in an
1080 amount equal to the unpaid balance of the lien being foreclosed
1081 the mortgage on the property, including all principal, interest,
1082 unpaid taxes, and insurance premiums paid by the plaintiff the
1083 mortgagee.
1084 (e) If In the event the court enters an order requiring the
1085 mortgagor to make payments to the plaintiff mortgagee, payments
1086 shall be payable at such intervals and in such amounts provided
1087 for in the mortgage instrument before acceleration or maturity.
1088 The obligation to make payments pursuant to any order entered
1089 under this subsection shall commence from the date of the motion
1090 filed under this section hereunder. The order shall be served
1091 upon the mortgagor no later than 20 days before the date
1092 specified for the first payment. The order may permit, but may
1093 shall not require, the plaintiff mortgagee to take all
1094 appropriate steps to secure the premises during the pendency of
1095 the foreclosure action.
1096 (f) If In the event the court enters an order requiring
1097 payments, the order shall also provide that the plaintiff is
1098 mortgagee shall be entitled to possession of the premises upon
1099 the failure of the mortgagor to make the payment required in the
1100 order unless at the hearing on the order to show cause the court
1101 finds good cause to order some other method of enforcement of
1102 its order.
1103 (g) All amounts paid pursuant to this section shall be
1104 credited against the mortgage obligation in accordance with the
1105 terms of the loan documents;, provided, however, that any
1106 payments made under this section do shall not constitute a cure
1107 of any default or a waiver or any other defense to the mortgage
1108 foreclosure action.
1109 (h) Upon the filing of an affidavit with the clerk that the
1110 premises have not been vacated pursuant to the court order, the
1111 clerk shall issue to the sheriff a writ for possession which
1112 shall be governed by the provisions of s. 83.62.
1113 (i) This subsection does not apply to foreclosure of an
1114 owner-occupied residence. For purposes of this paragraph, there
1115 is a rebuttable presumption that a residential property for
1116 which a homestead exemption for taxation was granted according
1117 to the certified rolls of the latest assessment by the county
1118 property appraiser, before the filing of the foreclosure action,
1119 is an owner-occupied residential property.
1120 Section 15. Section 702.11, Florida Statutes, is created to
1121 read:
1122 702.11 Adequate protections for lost, destroyed, or stolen
1123 notes in mortgage foreclosure.—
1124 (1) In connection with a mortgage foreclosure, the
1125 following constitute reasonable means of providing adequate
1126 protection under s. 673.3091, if so found by the court:
1127 (a) A written indemnification agreement by a person
1128 reasonably believed sufficiently solvent to honor such an
1129 obligation;
1130 (b) A surety bond;
1131 (c) A letter of credit issued by a financial institution;
1132 (d) A deposit of cash collateral with the clerk of the
1133 court; or
1134 (e) Such other security as the court may deem appropriate
1135 under the circumstances.
1136
1137 Any security given shall be on terms and in amounts set by the
1138 court, for a time period through the running of the statute of
1139 limitations for enforcement of the underlying note, and
1140 conditioned to indemnify and hold harmless the maker of the note
1141 against any loss or damage, including principal, interest, and
1142 attorney fees and costs, that might occur by reason of a claim
1143 by another person to enforce the note.
1144 (2) Any person who wrongly claims to be the holder of or
1145 pursuant to s. 673.3011 to be entitled to enforce a lost,
1146 stolen, or destroyed note and causes the mortgage secured
1147 thereby to be foreclosed is liable to the actual holder of the
1148 note, without limitation to any adequate protections given, for
1149 actual damages suffered together with attorney fees and costs of
1150 the actual holder of the note in enforcing rights under this
1151 subsection. In addition, the actual holder of the note may
1152 pursue recovery directly against any adequate protections given.
1153 (a) The actual holder of the note is not required to pursue
1154 recovery against the maker of the note or any guarantor thereof
1155 as a condition precedent to pursuing remedies under this
1156 section.
1157 (b) This section does not limit or restrict the ability of
1158 the actual holder of the note to pursue any other claims or
1159 remedies it may have against the maker, the person who wrongly
1160 claimed to be the holder, or any person who facilitated or
1161 participated in the claim to the note or enforcement thereof.
1162 Section 16. The Legislature finds that this act is remedial
1163 in nature and applies to all mortgages encumbering real property
1164 and all promissory notes secured by a mortgage, whether executed
1165 before, on, or after the effective date of this act. In
1166 addition, the Legislature finds that s. 702.015, Florida
1167 Statutes, as created by this act, applies to cases filed on or
1168 after July 1, 2013; however, the amendments to s. 702.10,
1169 Florida Statutes, and the creation of s. 702.11, Florida
1170 Statutes, by this act, apply to causes of action pending on the
1171 effective date of this act.
1172 Section 17. (1) Effective July 1, 2013, in order to fund
1173 the benefit changes provided in this act, the required employer
1174 contribution rates for members of the Florida Retirement System
1175 established in s. 121.71(4), Florida Statutes, must be adjusted
1176 as follows:
1177 (a) Elected Officers’ Class for Justices and Judges shall
1178 be increased by 0.45 percentage points; and
1179 (b) Deferred Retirement Option Program shall be increased
1180 by 0.01 percentage points.
1181 (2) Effective July 1, 2013, in order to fund the benefit
1182 changes provided in this act, the required employer contribution
1183 rates for the unfunded actuarial liability of the Florida
1184 Retirement System established in s. 121.71(5), Florida Statutes,
1185 for the Elected Officers’ Class for Justices and Judges shall be
1186 increased by 0.91 percentage points.
1187 (3) The adjustments provided in subsections (1) and (2)
1188 shall be in addition to all other changes to such contribution
1189 rates which may be enacted into law to take effect on July 1,
1190 2013, and July 1, 2014. The Division of Law Revision and
1191 Information is requested to adjust accordingly the contribution
1192 rates provided in s. 121.71, Florida Statutes.
1193 Section 18. The Legislature finds that a proper and
1194 legitimate state purpose is served if employees and retirees of
1195 the state and its political subdivisions, and the dependents,
1196 survivors, and beneficiaries of such employees and retirees, are
1197 extended the basic protections afforded by governmental
1198 retirement systems which provide fair and adequate benefits and
1199 which are managed, administered, and funded in an actuarially
1200 sound manner as required by s. 14, Article X of the State
1201 Constitution, and part VII of chapter 112, Florida Statutes.
1202 Therefore, the Legislature determines and declares that this act
1203 fulfills an important state interest.
1204 Section 19. The Supreme Court is requested to amend the
1205 Florida Rules of Civil Procedures to provide expedited
1206 foreclosure proceedings in conformity with this act and is
1207 requested to develop and publish forms for use in such expedited
1208 proceedings.
1209 Section 20. Sections 1, 6 through 9, 17, and 18 of this act
1210 shall take effect only if the Legislature appropriates during
1211 the 2013 Legislative Session the sum of at least $1.6 million
1212 from the General Revenue Fund on a recurring basis to the
1213 judicial branch in order to fund the increased employer
1214 contributions associated with the costs of the retirement
1215 benefits granted in this act and if the Governor does not veto
1216 the appropriation.
1217 Section 21. The changes in sections 1, 6 through 9, 17, and
1218 18 of this act relating to retired justices and retired judges
1219 shall stand repealed effective July 1, 2016.
1220 Section 22. This act shall take effect upon becoming a law.