Florida Senate - 2012 COMMITTEE AMENDMENT
Bill No. CS for SB 1890
Barcode 462064
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
02/27/2012 .
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The Committee on Banking and Insurance (Hays) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Paragraph (b) of subsection (2) of section
6 95.11, Florida Statutes, is amended, and paragraph (h) is added
7 to subsection (5) of that section, to read:
8 95.11 Limitations other than for the recovery of real
9 property.—Actions other than for recovery of real property shall
10 be commenced as follows:
11 (2) WITHIN FIVE YEARS.—
12 (b) A legal or equitable action on a contract, obligation,
13 or liability founded on a written instrument, except for an
14 action to enforce a claim against a payment bond, which shall be
15 governed by the applicable provisions of ss. 255.05(10) and
16 713.23(1)(e), and except for actions for a deficiency judgment
17 governed by paragraph (5)(h).
18 (5) WITHIN ONE YEAR.—
19 (h) An action to enforce a claim of a deficiency related to
20 a note secured by a mortgage against a residential property that
21 is a one-family to four-family dwelling unit. The limitations
22 period shall commence on the 11th day after the foreclosure sale
23 or the day after the mortgagee accepts a deed in lieu of
24 foreclosure.
25 Section 2. The amendment to s. 95.11, Florida Statutes,
26 made by this act shall apply to any action commenced on or after
27 July 1, 2012, regardless of when the cause of action accrued,
28 except that any action that would not have been barred under s.
29 95.11(2)(b), Florida Statutes, prior to the amendments made by
30 this act may be commenced no later than 5 years after the action
31 accrued and in no event later than July 1, 2013, and if the
32 action is not commenced by that date, it is barred by the
33 amendments made by this act.
34 Section 3. Section 702.015, Florida Statutes, is created to
35 read:
36 702.015 Elements of complaint; lost, destroyed, or stolen
37 note affidavit.—
38 (1) The Legislature intends that the requirements of this
39 section are to expedite the foreclosure process by ensuring
40 initial disclosure of a plaintiff’s status and the facts
41 supporting that status and thereby ensuring the availability of
42 documents necessary to the prosecution of the case. This section
43 is not intended to modify existing law regarding standing or
44 real parties in interest.
45 (2) A complaint that seeks to foreclose a mortgage or other
46 lien on residential real property, including individual units of
47 condominiums and cooperatives, designed principally for
48 occupation by from one to four families, but not including an
49 interest in a timeshare property, which secures a promissory
50 note must:
51 (a) Contain affirmative allegations expressly made by the
52 plaintiff at the time the proceeding is commenced that the
53 plaintiff is the holder of the original note secured by the
54 mortgage; or
55 (b) Allege with specificity the factual basis by which the
56 plaintiff is a person entitled to enforce the note under s.
57 673.3011.
58 (3) If a party has been delegated the authority to
59 institute a mortgage foreclosure action on behalf of the holder
60 of the note, the complaint shall describe the authority of the
61 plaintiff and identify, with specificity, the document that
62 grants the plaintiff the authority to act on behalf of the
63 holder of the note. This subsection is intended to require
64 initial disclosure of status and pertinent facts and not to
65 modify law regarding standing or real parties in interest.
66 (4) If the plaintiff is in physical possession of the
67 original promissory note, the plaintiff must file with the
68 court, contemporaneously with and as a condition precedent to
69 the filing of the complaint for foreclosure, certification,
70 under penalty of perjury, that the plaintiff is in physical
71 possession of the original promissory note. The certification
72 must set forth the physical location of the note, the name and
73 title of the individual giving the certification, the name of
74 the person who personally verified such physical possession, and
75 the time and date on which the possession was verified. Correct
76 copies of the note and all allonges to the note must be attached
77 to the certification. The original note and the allonges must be
78 filed with the court before the entry of any judgment of
79 foreclosure or judgment on the note.
80 (5) If the plaintiff seeks to enforce a lost, destroyed, or
81 stolen instrument, an affidavit executed under penalty of
82 perjury must be attached to the complaint. The affidavit must:
83 (a) Detail a clear chain of all endorsements or assignments
84 of the promissory note that is the subject of the action.
85 (b) Set forth facts showing that the plaintiff is entitled
86 to enforce a lost, destroyed, or stolen instrument pursuant to
87 s. 673.3091.
88 (c) Include as exhibits to the affidavit such copies of the
89 note and the allonges to the note, audit reports showing
90 physical receipt of the original note, or other evidence of the
91 acquisition, ownership, and possession of the note as may be
92 available to the plaintiff.
93 (6) The court may sanction the plaintiff for failure to
94 comply with this section, but any noncompliance with this
95 section does not affect the validity of a foreclosure sale or
96 title to real property subsequent to a foreclosure sale.
97 Section 4. Section 702.06, Florida Statutes, is amended to
98 read:
99 702.06 Deficiency decree; common-law suit to recover
100 deficiency.—In all suits for the foreclosure of mortgages
101 heretofore or hereafter executed the entry of a deficiency
102 decree for any portion of a deficiency, should one exist, may
103 not exceed the difference between the judgment amount or, in the
104 case of a short sale, the outstanding debt and the fair market
105 value of the property on the date of sale., shall be within the
106 sound judicial discretion of the court, but The complainant
107 shall also have the right to sue at common law to recover such
108 deficiency, unless the court in the foreclosure action has
109 granted or denied a claim for a deficiency judgment provided no
110 suit at law to recover such deficiency shall be maintained
111 against the original mortgagor in cases where the mortgage is
112 for the purchase price of the property involved and where the
113 original mortgagee becomes the purchaser thereof at foreclosure
114 sale and also is granted a deficiency decree against the
115 original mortgagor.
116 Section 5. Section 702.10, Florida Statutes, is amended to
117 read:
118 702.10 Order to show cause; entry of final judgment of
119 foreclosure; payment during foreclosure.—
120 (1) A lienholder After a complaint in a foreclosure
121 proceeding has been filed, the mortgagee may request an order to
122 show cause for the entry of final judgment in a foreclosure
123 action. For purposes of this section, the term “lienholder”
124 includes the plaintiff and a defendant to the action who holds a
125 lien encumbering the property or a defendant who, by virtue of
126 its status as a condominium association, cooperative
127 association, or homeowners’ association, may file a lien against
128 the real property subject to foreclosure. Upon filing, and the
129 court shall immediately review the request and the court file in
130 chambers and without a hearing complaint. If, upon examination
131 of the court file complaint, the court finds that the complaint
132 is verified, complies with s. 702.015, and alleges a cause of
133 action to foreclose on real property, the court shall promptly
134 issue an order directed to the other parties named in the action
135 defendant to show cause why a final judgment of foreclosure
136 should not be entered.
137 (a) The order shall:
138 1. Set the date and time for a hearing on the order to show
139 cause. However, The date for the hearing may not occur be set
140 sooner than the later of 20 days after the service of the order
141 to show cause or 45 days after the service of the initial
142 complaint. When service is obtained by publication, the date for
143 the hearing may not be set sooner than 55 30 days after the
144 first publication. The hearing must be held within 60 days after
145 the date of service. Failure to hold the hearing within such
146 time does not affect the validity of the order to show cause or
147 the jurisdiction of the court to issue subsequent orders.
148 2. Direct the time within which service of the order to
149 show cause and the complaint must be made upon the defendant.
150 3. State that the filing of defenses by a motion,
151 responsive pleading, affidavits, or other papers or by a
152 verified or sworn answer at or before the hearing to show cause
153 may constitute constitutes cause for the court not to enter the
154 attached final judgment.
155 4. State that a the defendant has the right to file
156 affidavits or other papers before at the time of the hearing to
157 show cause and may appear personally or by way of an attorney at
158 the hearing.
159 5. State that, if a the defendant files defenses by a
160 motion, a verified or sworn answer, affidavits, or other papers
161 or appears personally or by way of an attorney at the time of
162 the hearing, the hearing time will may be used to hear and
163 consider the defendant’s motion, answer, affidavits, other
164 papers, and other evidence and argument as may be presented by
165 the defendant or the defendant’s attorney. The order shall also
166 state that the court may enter an order of final judgment of
167 foreclosure at the hearing. If such a determination is entered,
168 the court shall enter a final judgment of foreclosure ordering
169 the clerk of the court to conduct a foreclosure sale.
170 6. State that, if a the defendant fails to appear at the
171 hearing to show cause or fails to file defenses by a motion or
172 by a verified or sworn answer or files an answer not contesting
173 the foreclosure, such the defendant may be considered to have
174 waived the right to a hearing, and in such case, the court may
175 enter a default against such defendant and, if appropriate, a
176 final judgment of foreclosure ordering the clerk of the court to
177 conduct a foreclosure sale.
178 7. State that if the mortgage provides for reasonable
179 attorney attorney’s fees and the requested attorney attorney’s
180 fees do not exceed 3 percent of the principal amount owed at the
181 time of filing the complaint, it is unnecessary for the court to
182 hold a hearing or adjudge the requested attorney attorney’s fees
183 to be reasonable.
184 8. Attach the form of the proposed final judgment of
185 foreclosure which the movant requests the court to will enter,
186 if the defendant waives the right to be heard at the hearing on
187 the order to show cause. The form may contain blanks for the
188 court to enter the amounts due.
189 9. Require the party seeking final judgment mortgagee to
190 serve a copy of the order to show cause on the other parties the
191 mortgagor in the following manner:
192 a. If a party the mortgagor has been personally served with
193 the complaint and original process, or the other party is the
194 plaintiff in the action, service of the order to show cause on
195 that party order may be made in the manner provided in the
196 Florida Rules of Civil Procedure.
197 b. If a defendant the mortgagor has not been personally
198 served with the complaint and original process, the order to
199 show cause, together with the summons and a copy of the
200 complaint, shall be served on the party mortgagor in the same
201 manner as provided by law for original process. Service of the
202 complaint and original process by mail or publication is not
203 personal service for purposes of this subparagraph.
204
205 Any final judgment of foreclosure entered under this subsection
206 is for in rem relief only. Nothing in This subsection does not
207 shall preclude the entry of a deficiency judgment where
208 otherwise allowed by law. It is the intent of the Legislature
209 that this alternative procedure may run simultaneously with
210 other court procedures.
211 (b) The right to be heard at the hearing to show cause is
212 waived if a the defendant, after being served as provided by law
213 with an order to show cause, engages in conduct that clearly
214 shows that the defendant has relinquished the right to be heard
215 on that order. The defendant’s failure to file defenses by a
216 motion or by a sworn or verified answer, affidavits, or other
217 papers or to appear personally or by way of an attorney at the
218 hearing duly scheduled on the order to show cause presumptively
219 constitutes conduct that clearly shows that the defendant has
220 relinquished the right to be heard. If a defendant files
221 defenses by a motion, or by a verified or sworn answer,
222 affidavits, or other papers at or before the hearing, such
223 action may constitute constitutes cause and may preclude
224 precludes the entry of a final judgment at the hearing to show
225 cause.
226 (c) In a mortgage foreclosure proceeding, when a final
227 default judgment of foreclosure has been entered against the
228 mortgagor and the note or mortgage provides for the award of
229 reasonable attorney attorney’s fees, it is unnecessary for the
230 court to hold a hearing or adjudge the requested attorney
231 attorney’s fees to be reasonable if the fees do not exceed 3
232 percent of the principal amount owed on the note or mortgage at
233 the time of filing, even if the note or mortgage does not
234 specify the percentage of the original amount that would be paid
235 as liquidated damages.
236 (d) If the court finds that all defendants have the
237 defendant has waived the right to be heard as provided in
238 paragraph (b), the court shall promptly enter a final judgment
239 of foreclosure without the need for further hearing if the
240 plaintiff has shown entitlement to a final judgment and upon the
241 filing with the court of the original note, satisfaction of the
242 conditions for establishment of a lost note, or upon a showing
243 to the court that the obligation to be foreclosed is not
244 evidenced by a promissory note or other negotiable instrument.
245 If the court finds that a the defendant has not waived the right
246 to be heard on the order to show cause, the court shall then
247 determine whether there is cause not to enter a final judgment
248 of foreclosure. If the court finds that the defendant has not
249 shown cause, the court shall promptly enter a judgment of
250 foreclosure. If the time allotted for the hearing is
251 insufficient, the court may announce at the hearing a date and
252 time for the continued hearing. Only the parties who appear,
253 individually or through an attorney, at the initial hearing must
254 be notified of the date and time of the continued hearing.
255 (2) This subsection does not apply to foreclosure of an
256 owner-occupied residence. As part of any other In an action for
257 foreclosure, and in addition to any other relief that the court
258 may award other than residential real estate, the plaintiff the
259 mortgagee may request that the court enter an order directing
260 the mortgagor defendant to show cause why an order to make
261 payments during the pendency of the foreclosure proceedings or
262 an order to vacate the premises should not be entered.
263 (a) The order shall:
264 1. Set the date and time for hearing on the order to show
265 cause. However, the date for the hearing may shall not be set
266 sooner than 20 days after the service of the order. If Where
267 service is obtained by publication, the date for the hearing may
268 shall not be set sooner than 30 days after the first
269 publication.
270 2. Direct the time within which service of the order to
271 show cause and the complaint shall be made upon each the
272 defendant.
273 3. State that a the defendant has the right to file
274 affidavits or other papers at the time of the hearing and may
275 appear personally or by way of an attorney at the hearing.
276 4. State that, if a the defendant fails to appear at the
277 hearing to show cause and fails to file defenses by a motion or
278 by a verified or sworn answer, the defendant is may be deemed to
279 have waived the right to a hearing and in such case the court
280 may enter an order to make payment or vacate the premises.
281 5. Require the movant mortgagee to serve a copy of the
282 order to show cause on the defendant mortgagor in the following
283 manner:
284 a. If a defendant the mortgagor has been served with the
285 complaint and original process, service of the order may be made
286 in the manner provided in the Florida Rules of Civil Procedure.
287 b. If a defendant the mortgagor has not been served with
288 the complaint and original process, the order to show cause,
289 together with the summons and a copy of the complaint, shall be
290 served on the defendant mortgagor in the same manner as provided
291 by law for original process.
292 (b) The right of a defendant to be heard at the hearing to
293 show cause is waived if the defendant, after being served as
294 provided by law with an order to show cause, engages in conduct
295 that clearly shows that the defendant has relinquished the right
296 to be heard on that order. A The defendant’s failure to file
297 defenses by a motion or by a sworn or verified answer or to
298 appear at the hearing duly scheduled on the order to show cause
299 presumptively constitutes conduct that clearly shows that the
300 defendant has relinquished the right to be heard.
301 (c) If the court finds that a the defendant has waived the
302 right to be heard as provided in paragraph (b), the court may
303 promptly enter an order requiring payment in the amount provided
304 in paragraph (f) or an order to vacate.
305 (d) If the court finds that the mortgagor has not waived
306 the right to be heard on the order to show cause, the court
307 shall, at the hearing on the order to show cause, consider the
308 affidavits and other showings made by the parties appearing and
309 make a determination of the probable validity of the underlying
310 claim alleged against the mortgagor and the mortgagor’s
311 defenses. If the court determines that the plaintiff mortgagee
312 is likely to prevail in the foreclosure action, the court shall
313 enter an order requiring the mortgagor to make the payment
314 described in paragraph (e) to the plaintiff mortgagee and
315 provide for a remedy as described in paragraph (f). However, the
316 order shall be stayed pending final adjudication of the claims
317 of the parties if the mortgagor files with the court a written
318 undertaking executed by a surety approved by the court in an
319 amount equal to the unpaid balance of the lien being foreclosed
320 the mortgage on the property, including all principal, interest,
321 unpaid taxes, and insurance premiums paid by the plaintiff the
322 mortgagee.
323 (e) If In the event the court enters an order requiring the
324 mortgagor to make payments to the plaintiff mortgagee, payments
325 shall be payable at such intervals and in such amounts provided
326 for in the mortgage instrument before acceleration or maturity.
327 The obligation to make payments pursuant to any order entered
328 under this subsection shall commence from the date of the motion
329 filed under this section hereunder. The order shall be served
330 upon the mortgagor no later than 20 days before the date
331 specified for the first payment. The order may permit, but may
332 shall not require, the plaintiff mortgagee to take all
333 appropriate steps to secure the premises during the pendency of
334 the foreclosure action.
335 (f) If In the event the court enters an order requiring
336 payments, the order shall also provide that the plaintiff is
337 mortgagee shall be entitled to possession of the premises upon
338 the failure of the mortgagor to make the payment required in the
339 order unless at the hearing on the order to show cause the court
340 finds good cause to order some other method of enforcement of
341 its order.
342 (g) All amounts paid pursuant to this section shall be
343 credited against the mortgage obligation in accordance with the
344 terms of the loan documents;, provided, however, that any
345 payments made under this section do shall not constitute a cure
346 of any default or a waiver or any other defense to the mortgage
347 foreclosure action.
348 (h) Upon the filing of an affidavit with the clerk that the
349 premises have not been vacated pursuant to the court order, the
350 clerk shall issue to the sheriff a writ for possession which
351 shall be governed by the provisions of s. 83.62.
352 (i) For purposes of this subsection, there is a rebuttable
353 presumption that a residential property for which a homestead
354 exemption for taxation was granted according to the certified
355 rolls of the latest assessment by the county property appraiser,
356 before the filing of the foreclosure action, is an owner
357 occupied residential property.
358 (3) The Supreme Court is requested to amend the Florida
359 Rules of Civil Procedure to provide for expedited foreclosure
360 proceedings in conformity with this section and is requested to
361 develop and publish forms for use under this section.
362 Section 6. Section 702.11, Florida Statutes, is created to
363 read:
364 702.11 Expedited foreclosure of abandoned residential real
365 property.—
366 (1) As used in this section, the term “abandoned
367 residential real property” means residential real property that
368 is deemed abandoned upon a showing that:
369 (a) A duly licensed process server unaffiliated with the
370 owner or servicer of any mortgage on the residential real
371 property or with the attorney or law firm representing such
372 owner or servicer has made at least three attempts to locate an
373 occupant of the residential real property. The attempts must
374 have been made at least 72 hours apart, and at least one each of
375 such attempts must have been made before 12 p.m., between 12
376 p.m. and 6 p.m., and between 6 p.m. and 10 p.m. Each attempt
377 must include physically knocking or ringing at the door of the
378 residential real property and such other efforts as are normally
379 sufficient to obtain a response from an occupant.
380 (b) Two or more of the following conditions exist:
381 1. Windows or entrances to the premises are boarded up or
382 closed off or multiple window panes are broken and unrepaired.
383 2. Doors to the premises are smashed through, broken off,
384 unhinged, or continuously unlocked.
385 3. Rubbish, trash, or debris has accumulated on the
386 mortgaged premises.
387 4. The premises are deteriorating and are below or in
388 imminent danger of falling below minimum community standards for
389 public safety and sanitation.
390 5. If the premises are a part of a condominium or are
391 governed by a mandatory homeowners’ association, the manager or
392 other representative of the association has confirmed that
393 assessments for the unit are at least 90 days delinquent.
394 6. Interviews with at least two neighbors in different
395 households indicate that the residence has been abandoned. The
396 neighbors must be adjoining, across the street in view of the
397 home, or across the hall or adjacent to the unit in a
398 condominium or cooperative.
399
400 The sheriff or process server making attempts to locate an
401 occupant of the residential real property and to determine the
402 abandoned status of the residential real property may provide,
403 by affidavit and photographic or other documentation, evidence
404 of the condition of the residential real property, and may
405 charge a reasonable fee for the attempts and for any affidavit
406 or other documentation evidencing the condition of the
407 residential real property.
408 (2)(a) The party entitled to enforce the note and mortgage
409 encumbering the residential real property appearing to be
410 abandoned may file a petition before the court seeking to
411 determine the status of the residential real property and to
412 invoke an expedited foreclosure proceeding relating to the
413 property. Upon the filing of an affidavit of diligent search and
414 inquiry and the affidavit or documentary evidence set forth in
415 subsection (1), the court shall, upon request of the petitioner,
416 issue one or more subpoenas to the utility companies serving the
417 residential real property commanding disclosure of the status of
418 utility service to the subject property, including whether
419 utilities are currently turned off and whether all outstanding
420 utility payments have been made and, if so, by whom.
421 (b) If, after review of the response of the utility
422 companies to the subpoenas and all other matters of record, the
423 court may deem the property to have been abandoned and the
424 plaintiff entitled to expedited foreclosure.
425 Section 7. The amendments to s. 702.10, Florida Statutes,
426 and the creation of s. 702.11, Florida Statutes, by this act are
427 remedial in nature and shall apply to causes of action pending
428 on the effective date of this act. Section 702.015, Florida
429 Statutes, as created by this act, applies to cases filed on or
430 after July 1, 2012.
431 Section 8. The Legislature finds that this act is remedial
432 in nature. Accordingly, it is the intent of the Legislature that
433 this act shall apply to all mortgages encumbering real property
434 and all promissory notes secured by a mortgage, whether executed
435 before, on, or after the effective date of this act.
436 Section 9. This act shall take effect upon becoming a law.
437
438 ================= T I T L E A M E N D M E N T ================
439 And the title is amended as follows:
440
441 Delete everything before the enacting clause
442 and insert:
443 A bill to be entitled
444 An act relating to mortgage foreclosures; amending s.
445 95.11, F.S.; reducing the limitations period for
446 commencing an action to enforce a claim of a
447 deficiency judgment subsequent to a foreclosure
448 action; providing for application to existing causes
449 of action; creating s. 702.015, F.S.; providing
450 legislative intent; specifying required contents of a
451 complaint seeking to foreclose on certain types of
452 residential properties with respect to the authority
453 of the plaintiff to foreclose on the note and the
454 location of the note; providing that failure to file
455 such documents does not affect title to property
456 subsequent to a foreclosure sale; amending s. 702.06,
457 F.S.; limiting the amount of a deficiency judgment;
458 amending s. 702.10, F.S.; expanding the class of
459 persons authorized to move for expedited foreclosure;
460 defining the term “lienholder”; providing requirements
461 and procedures with respect to an order directed to
462 defendants to show cause why a final judgment of
463 foreclosure should not be entered; providing that
464 certain failures by a defendant to make certain
465 filings or to make certain appearances may have
466 specified legal consequences; requiring the court to
467 enter a final judgment of foreclosure and order a
468 foreclosure sale under certain circumstances; revising
469 a restriction on a mortgagee to request a court to
470 order a mortgagor defendant to make payments or to
471 vacate the premises during an action to foreclose on
472 residential real estate to provide that the
473 restriction applies to all but owner-occupied
474 residential property; providing a presumption
475 regarding owner-occupied residential property;
476 requesting the Supreme Court to adopt rules and forms
477 for use in expedited foreclosure proceedings; creating
478 s. 702.11, F.S.; establishing expedited foreclosure
479 proceedings for abandoned residential real property
480 and procedures and requirements with respect thereto;
481 providing for application of the act; providing an
482 effective date.