| 1 | A bill to be entitled |
| 2 | An act relating to residential foreclosure proceedings; |
| 3 | amending s. 45.031, F.S.; specifying an additional |
| 4 | judicial sale notice-of-sale requirement for collecting |
| 5 | surplus funds; creating s. 45.0311, F.S.; providing |
| 6 | requirements and procedures for disbursement of surplus |
| 7 | funds from a judicial sale; authorizing a court to |
| 8 | determine reasonable attorney fees for motions to disburse |
| 9 | surplus funds; providing a right of certain parties to |
| 10 | petition a court to set aside certain deeds or assignments |
| 11 | under certain circumstances; creating s. 48.184, F.S.; |
| 12 | specifying a required notice form to be served with a |
| 13 | summons and complaint in actions to foreclose an interest |
| 14 | in residential real estate; requiring the notice to be |
| 15 | included in the service of process; requiring certain |
| 16 | verification of service; amending s. 48.21, F.S.; |
| 17 | specifying an additional notice requirement for return of |
| 18 | service of process forms made for foreclosures of |
| 19 | residential real estate; authorizing a clerk of court to |
| 20 | charge a fee for attempts of service of process; requiring |
| 21 | the clerk of court to use fee proceeds for certain public |
| 22 | education purposes; amending s. 49.08, F.S.; requiring |
| 23 | certain notices of action to contain an additional notice |
| 24 | of potential surplus and application procedures |
| 25 | information; amending s. 57.105, F.S.; entitling certain |
| 26 | parties to recover all fees and costs incurred in certain |
| 27 | surplus funds actions; providing for the court to |
| 28 | determine reasonable attorney fees in such actions; |
| 29 | creating s. 501.2078, F.S.; providing definitions; |
| 30 | providing a civil penalty for knowingly using unfair or |
| 31 | deceptive homeowner victimization methods, acts, or |
| 32 | practices in residential foreclosure proceedings; |
| 33 | specifying a time period during which companies or |
| 34 | attorneys may not contact a homeowner for certain |
| 35 | purposes; specifying higher priority of an order of |
| 36 | restitution or reimbursement over imposition of a civil |
| 37 | penalty; providing for deposit of civil penalties into the |
| 38 | Legal Affairs Revolving Trust Fund of the Department of |
| 39 | Legal Affairs; allocating such funds for certain purpose; |
| 40 | creating s. 689.251, F.S.; requiring documents |
| 41 | transferring an interest in real estate to disclose |
| 42 | certain information; authorizing a seller to void a |
| 43 | transaction under certain circumstances; requiring the |
| 44 | seller to repay certain amounts to a purchaser, minus |
| 45 | certain amounts, under such circumstances; amending s. |
| 46 | 702.065, F.S.; prohibiting a court or clerk of court from |
| 47 | entering a default or default judgment against a mortgagor |
| 48 | in a residential foreclosure proceeding if a return of |
| 49 | service does not contain a required notice; amending s. |
| 50 | 702.10, F.S.; including a reference to a required |
| 51 | residential foreclosure proceeding notice in certain |
| 52 | orders to show cause in final judgment of foreclosure |
| 53 | entries; providing an effective date. |
| 54 |
|
| 55 | Be It Enacted by the Legislature of the State of Florida: |
| 56 |
|
| 57 | Section 1. Paragraph (f) is added to subsection (1) of |
| 58 | section 45.031, Florida Statutes, to read: |
| 59 | 45.031 Judicial sales procedure.--In any sale of real or |
| 60 | personal property under an order or judgment, the following |
| 61 | procedure may be followed as an alternative to any other sale |
| 62 | procedure if so ordered by the court: |
| 63 | (1) SALE BY CLERK.--In the order or final judgment, the |
| 64 | court shall direct the clerk to sell the property at public sale |
| 65 | on a specified day that shall be not less than 20 days or more |
| 66 | than 35 days after the date thereof, on terms and conditions |
| 67 | specified in the order or judgment. A sale may be held more than |
| 68 | 35 days after the date of final judgment or order if the |
| 69 | plaintiff or plaintiff's attorney consents to such time. Any |
| 70 | sale held more than 35 days after the final judgment or order |
| 71 | shall not affect the validity or finality of the final judgment |
| 72 | or order or any sale held pursuant thereto. Notice of sale shall |
| 73 | be published once a week for 2 consecutive weeks in a newspaper |
| 74 | of general circulation, as defined in chapter 50, published in |
| 75 | the county where the sale is to be held. The second publication |
| 76 | shall be at least 5 days before the sale. The notice shall |
| 77 | contain: (f) If there are surplus proceeds, the procedure |
| 78 | required for collecting the surplus proceeds, or the phone |
| 79 | number for or the website at which the procedure will be |
| 80 | explained. |
| 81 |
|
| 82 | The clerk shall receive a service charge of up to $60 for |
| 83 | services in making, recording, and certifying the sale and title |
| 84 | that shall be assessed as costs. The court, in its discretion, |
| 85 | may enlarge the time of the sale. Notice of the changed time of |
| 86 | sale shall be published as provided herein. |
| 87 | Section 2. Section 45.0311, Florida Statutes, is created |
| 88 | to read: |
| 89 | 45.0311 Disbursement of surplus funds.-- |
| 90 | (1) Any person claiming a right to disbursement of |
| 91 | proceeds from a judicial sale, other than the original |
| 92 | mortgagor, shall produce a deed satisfying the requirements of |
| 93 | s. 689.251, if applicable, or an assignment of the proceeds from |
| 94 | the original mortgagor, or homeowner if not the original |
| 95 | mortgagor, executed with the formality of a deed and |
| 96 | acknowledged and conspicuously including the assessed value of |
| 97 | the property, a disclosure that the assessed value may be lower |
| 98 | than the actual value of the property, the approximate amount of |
| 99 | any debt encumbering the property, the approximate amount of any |
| 100 | equity in the property, and a statement that the assignor does |
| 101 | not need an attorney or other representative to recover the |
| 102 | surplus funds. The deed or assignment shall conspicuously set |
| 103 | forth all forms of consideration paid for the rights to the |
| 104 | property or the assignment of the rights to any surplus funds. |
| 105 | (2) The court shall determine reasonable attorney fees |
| 106 | charged for a motion to disburse surplus funds. |
| 107 | (3) A party who has executed an assignment or deed that |
| 108 | does not conform with the requirements of this section or s. |
| 109 | 689.251 has the right to petition the court presiding over the |
| 110 | foreclosure proceeding to set aside the nonconforming deed or |
| 111 | assignment. |
| 112 | Section 3. Section 48.184, Florida Statutes, is created to |
| 113 | read: |
| 114 | 48.184 Notice form for actions to foreclose an interest in |
| 115 | residential real estate.--In any action to foreclose an interest |
| 116 | in real estate, a notice, in substantially the following form |
| 117 | and printed on orange paper, shall be served with the summons |
| 118 | and complaint and shall be included in the service of process. |
| 119 | The return of service shall verify that such notice was served |
| 120 | with the summons and the complaint: |
| 121 |
|
| 122 | (Caption of Action) |
| 123 | ATTENTION |
| 124 | TO ALL NAMED PARTIES LISTED |
| 125 | IN THIS FORECLOSURE LAWSUIT: |
| 126 |
|
| 127 | A FORECLOSURE ACTION HAS BEEN FILED AGAINST YOU FOR FAILURE TO |
| 128 | MAKE TIMELY MORTGAGE PAYMENTS ON YOUR RESIDENCE. IF A JUDGMENT |
| 129 | OF FORECLOSURE IS ENTERED AND YOUR PROPERTY IS SOLD AT PUBLIC |
| 130 | AUCTION, THERE MAY BE ADDITIONAL MONEY FROM THE SALE THAT |
| 131 | BELONGS TO YOU AFTER PAYMENT OF LIENHOLDERS. |
| 132 |
|
| 133 | YOU MAY CLAIM THESE FUNDS YOURSELF. YOU ARE NOT REQUIRED TO HAVE |
| 134 | A LAWYER OR ANY OTHER REPRESENTATION AND YOU DO NOT HAVE TO |
| 135 | ASSIGN YOUR RIGHTS TO ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY |
| 136 | MONEY TO WHICH YOU ARE ENTITLED. |
| 137 |
|
| 138 | PLEASE CHECK WITH THE CLERK OF THE COURT, [INSERT INFORMATION |
| 139 | FOR APPLICABLE COURT] WITHIN TEN (10) DAYS AFTER THE SALE TO SEE |
| 140 | IF THERE IS ADDITIONAL MONEY FROM THE FORECLOSURE SALE THAT THE |
| 141 | CLERK HAS IN THE REGISTRY OF THE COURT. |
| 142 |
|
| 143 | IF THERE IS ADDITIONAL MONEY, YOU MAY ASK THE COURT TO INSTRUCT |
| 144 | THE CLERK TO GIVE YOU THE MONEY THAT BELONGS TO YOU. |
| 145 |
|
| 146 | IT IS POSSIBLE THAT YOU WILL BE CONTACTED BY COMPANIES OR |
| 147 | LAWYERS OFFERING TO HELP YOU COLLECT THIS MONEY OR OFFERING TO |
| 148 | HELP YOU WITH THE FORECLOSURE BY BUYING YOUR HOUSE, LENDING YOU |
| 149 | MONEY, OR TAKING AN ASSIGNMENT. THESE COMPANIES OR LAWYERS MAY |
| 150 | NOT CONTACT YOU UNTIL AFTER 30 DAYS AFTER YOU RECEIVED THIS |
| 151 | NOTICE. IF YOU WANT TO CHECK WHETHER THE PERSON OR COMPANY |
| 152 | CALLING YOU HAS A COMPLAINT HISTORY WITH THE STATE, YOU MAY CALL |
| 153 | [INSERT CONTACT INFORMATION, INCLUDING ANY HOT OR WEBSITE]. |
| 154 | [PLEASE CALL THE ATTORNEY GENERAL'S HOTLINE AT 1-866-9-NO-SCAM |
| 155 | (966-7226) OR GO TO WWW.MYFLORIDALEGAL.COM.] |
| 156 |
|
| 157 | IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP YOU |
| 158 | CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY CAREFULLY ALL |
| 159 | PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLY AN |
| 160 | ATTORNEY WHO IS NOT RELATED TO THE PERSON OFFERING TO HELP YOU, |
| 161 | TO MAKE SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND THAT |
| 162 | YOU ARE NOT TRANSFERRING YOUR PROPERTY OR THE EQUITY IN YOUR |
| 163 | PROPERTY WITHOUT THE PROPER INFORMATION. |
| 164 | Section 4. Section 48.21, Florida Statutes, is amended to |
| 165 | read: |
| 166 | 48.21 Return of execution of process.--Each person who |
| 167 | effects service of process shall note on a return-of-service |
| 168 | form attached thereto, the date and time when it comes to hand, |
| 169 | the date and time when it is served, the manner of service, the |
| 170 | name of the person on whom it was served and, if the person is |
| 171 | served in a representative capacity, the position occupied by |
| 172 | the person. A failure to state the foregoing facts invalidates |
| 173 | the service, but the return is amendable to state the truth at |
| 174 | any time on application to the court from which the process |
| 175 | issued. On amendment, service is as effective as if the return |
| 176 | had originally stated the omitted facts. A failure to state all |
| 177 | the facts in the return shall subject the person effecting |
| 178 | service to a fine not exceeding $10, in the court's discretion. |
| 179 | When service of process is made for foreclosure of an interest |
| 180 | in residential real estate, the return of service form shall |
| 181 | include a confirmation that the notice required by s. 48.184 is |
| 182 | included in the service of process. The clerk of court may |
| 183 | charge a fee of $25 for each attempt of service upon a |
| 184 | homeowner. The clerk shall use the proceeds of such fee solely |
| 185 | for purposes of educating the public as to the rights of |
| 186 | homeowners regarding foreclosure proceedings. |
| 187 | Section 5. Subsection (5) is added to section 49.08, |
| 188 | Florida Statutes, to read: |
| 189 | 49.08 Notice of action, form.--On filing the sworn |
| 190 | statement, and otherwise complying with the foregoing |
| 191 | requirements, the plaintiff is entitled to have issued by the |
| 192 | clerk or judge, not later than 60 days after filing the sworn |
| 193 | statement, a notice of action which notice shall set forth: |
| 194 | (5) Notice of a potential surplus and information advising |
| 195 | the defendant of the procedures to apply for the surplus, in |
| 196 | substantially the following form: |
| 197 |
|
| 198 | If you are the owner of real estate that is being |
| 199 | foreclosed, there may be money owed to you after the |
| 200 | sale. You may contact [insert contact information for |
| 201 | clerk's office until hotline and website are set up] |
| 202 | for information on what you need to do to get the |
| 203 | funds. You do not need to hire an attorney or other |
| 204 | representative to get this money. |
| 205 |
|
| 206 | Section 6. Subsection (8) is added to section 57.105, |
| 207 | Florida Statutes, to read: |
| 208 | 57.105 Attorney's fee; sanctions for raising unsupported |
| 209 | claims or defenses; service of motions; damages for delay of |
| 210 | litigation.-- |
| 211 | (8) In any action under s. 45.0311(3) the mortgagor, or |
| 212 | original homeowner if not the same as the mortgagor, shall be |
| 213 | entitled to recover all fees and costs incurred in connection |
| 214 | with such action. The court shall determine reasonable attorney |
| 215 | fees in such actions. |
| 216 | Section 7. Section 501.2078, Florida Statutes, is created |
| 217 | to read: |
| 218 | 501.2078 Violations involving individual homeowners during |
| 219 | the course of residential foreclosure proceedings; civil |
| 220 | penalties.-- |
| 221 | (1) As used in this section: |
| 222 | (a) "Residential foreclosure proceeding" means any action |
| 223 | in a circuit court of this state in which a party seeks to |
| 224 | foreclose on a mortgage and sell the residential property |
| 225 | covered by the mortgage. |
| 226 | (b) "Homeowner" means any individual who is the owner of |
| 227 | the property subject to a residential foreclosure proceeding. |
| 228 | (2)(a) Any person who willfully uses, or has willfully |
| 229 | used, a method, act, or practice in violation of this part, |
| 230 | which method, act, or practice victimizes or attempts to |
| 231 | victimize homeowners during the course of a residential |
| 232 | foreclosure proceeding, and in committing such violation knew or |
| 233 | should have known that such conduct was unfair or deceptive, is |
| 234 | liable for a civil penalty of not more than $15,000 for each |
| 235 | such violation. |
| 236 | (b) Any company or attorney desiring to contact a |
| 237 | homeowner to offer to help the homeowner collect any surplus |
| 238 | money or to help with a foreclosure by buying the homeowner's |
| 239 | house, lend the homeowner money, or take an assignment may not |
| 240 | contact the homeowner until after 30 days after the homeowner |
| 241 | receives the notice provided in s. 48.184. Any such contact |
| 242 | before such 30-day period has elapsed constitutes a violation of |
| 243 | this part, subject to the penalty provided in paragraph (a). |
| 244 | (3) Any order of restitution or reimbursement based on a |
| 245 | violation of this part committed against a homeowner in a |
| 246 | residential foreclosure proceeding has priority over the |
| 247 | imposition of any civil penalty for such violation pursuant to |
| 248 | this section. |
| 249 | (4) Civil penalties collected pursuant to this section |
| 250 | shall be deposited into the Legal Affairs Revolving Trust Fund |
| 251 | of the Department of Legal Affairs and allocated solely to the |
| 252 | Department of Legal Affairs for the purpose of preparing and |
| 253 | distributing consumer education materials, programs, and |
| 254 | seminars to benefit homeowners in residential foreclosure |
| 255 | proceedings or to further enforcement efforts. |
| 256 | Section 8. Section 689.251, Florida Statutes, is created |
| 257 | to read: |
| 258 | 689.251 Transfer of real estate subject to default.-- |
| 259 | (1) Any document prepared by a purchaser of an interest in |
| 260 | real property purporting to transfer such interest as described |
| 261 | in s. 697.08(1) must disclose, in the instrument itself or in a |
| 262 | separate writing executed by the seller and the purchaser with |
| 263 | the formality of a deed and acknowledged by a notary public or |
| 264 | civil notary of this state, the assessed value of the property, |
| 265 | that the assessed value may be lower than the actual value of |
| 266 | the property, the approximate amount of any debt encumbering the |
| 267 | property, and the approximate amount of any equity in the |
| 268 | property. The deed or assignment shall conspicuously set forth |
| 269 | any and all forms of consideration paid for the rights to the |
| 270 | property or the assignment of the rights to any surplus funds. |
| 271 | (2) If such document fails to comply with the requirements |
| 272 | of subsection (1), the seller may void the transaction. If the |
| 273 | seller voids the transaction, the seller shall repay any |
| 274 | consideration paid by the purchaser to the seller, less, |
| 275 | however, all costs incurred by the seller as a result of the |
| 276 | purchaser's failure to comply with subsection (1), including |
| 277 | attorney's fees and costs. |
| 278 | Section 9. Subsection (3) is added to section 702.065, |
| 279 | Florida Statutes, to read: |
| 280 | 702.065 Final judgment in uncontested proceedings where |
| 281 | deficiency judgment waived; attorney's fees when default |
| 282 | judgment entered.-- |
| 283 | (3) In a residential foreclosure proceeding, a court or a |
| 284 | clerk of the court may not enter a default or default judgment |
| 285 | against the mortgagor if the return of service does not include |
| 286 | evidence that the notice required by s. 48.184 was served on the |
| 287 | mortgagor. |
| 288 | Section 10. Paragraph (a) of subsection (1) of section |
| 289 | 702.10, Florida Statutes, is amended to read: |
| 290 | 702.10 Order to show cause; entry of final judgment of |
| 291 | foreclosure; payment during foreclosure.-- |
| 292 | (1) After a complaint in a foreclosure proceeding has been |
| 293 | filed, the mortgagee may request an order to show cause for the |
| 294 | entry of final judgment and the court shall immediately review |
| 295 | the complaint. If, upon examination of the complaint, the court |
| 296 | finds that the complaint is verified and alleges a cause of |
| 297 | action to foreclose on real property, the court shall promptly |
| 298 | issue an order directed to the defendant to show cause why a |
| 299 | final judgment of foreclosure should not be entered. |
| 300 | (a) The order shall: |
| 301 | 1. Set the date and time for hearing on the order to show |
| 302 | cause. However, the date for the hearing may not be set sooner |
| 303 | than 20 days after the service of the order. When service is |
| 304 | obtained by publication, the date for the hearing may not be set |
| 305 | sooner than 30 days after the first publication. The hearing |
| 306 | must be held within 60 days after the date of service. Failure |
| 307 | to hold the hearing within such time does not affect the |
| 308 | validity of the order to show cause or the jurisdiction of the |
| 309 | court to issue subsequent orders. |
| 310 | 2. Direct the time within which service of the order to |
| 311 | show cause and the complaint must be made upon the defendant. |
| 312 | 3. State that the filing of defenses by a motion or by a |
| 313 | verified or sworn answer at or before the hearing to show cause |
| 314 | constitutes cause for the court not to enter the attached final |
| 315 | judgment. |
| 316 | 4. State that the defendant has the right to file |
| 317 | affidavits or other papers at the time of the hearing and may |
| 318 | appear personally or by way of an attorney at the hearing. |
| 319 | 5. State that, if the defendant files defenses by a |
| 320 | motion, the hearing time may be used to hear the defendant's |
| 321 | motion. |
| 322 | 6. State that, if the defendant fails to appear at the |
| 323 | hearing to show cause or fails to file defenses by a motion or |
| 324 | by a verified or sworn answer or files an answer not contesting |
| 325 | the foreclosure, the defendant may be considered to have waived |
| 326 | the right to a hearing and in such case the court may enter a |
| 327 | final judgment of foreclosure ordering the clerk of the court to |
| 328 | conduct a foreclosure sale. |
| 329 | 7. State that if the mortgage provides for reasonable |
| 330 | attorney's fees and the requested attorney's fees do not exceed |
| 331 | 3 percent of the principal amount owed at the time of filing the |
| 332 | complaint, it is unnecessary for the court to hold a hearing or |
| 333 | adjudge the requested attorney's fees to be reasonable. |
| 334 | 8. Attach the final judgment of foreclosure the court will |
| 335 | enter, if the defendant waives the right to be heard at the |
| 336 | hearing on the order to show cause. |
| 337 | 9. Require the mortgagee to serve a copy of the order to |
| 338 | show cause on the mortgagor in the following manner: |
| 339 | a. If the mortgagor has been served with the complaint and |
| 340 | original process, service of the order may be made in the manner |
| 341 | provided in the Florida Rules of Civil Procedure. |
| 342 | b. If the mortgagor has not been served with the complaint |
| 343 | and original process, the order to show cause, together with the |
| 344 | summons and a copy of the complaint, and in the case of a |
| 345 | residential foreclosure proceeding, the notice required by s. |
| 346 | 48.184, shall be served on the mortgagor in the same manner as |
| 347 | provided by law for original process. |
| 348 |
|
| 349 | Any final judgment of foreclosure entered under this subsection |
| 350 | is for in rem relief only. Nothing in this subsection shall |
| 351 | preclude the entry of a deficiency judgment where otherwise |
| 352 | allowed by law. |
| 353 | Section 11. This act shall take effect July 1, 2005. |