CHAPTER 702

702.01 Equity.

History. — RS 1987; GS 2501; RGS 3844; CGL 5747; s. 7, ch. 22858, 1945; s. 2, ch. 87-217.

702.015 Elements of complaint; lost, destroyed, or stolen note affidavit.

(1) The Legislature intends that this

section expedite the foreclosure process by ensuring initial disclosure of a plaintiff’s status and the facts supporting that status, thereby ensuring the availability of documents necessary to the prosecution of the case.

(2) A complaint that seeks to foreclose a mortgage or other lien on residential real property, including individual units of condominiums and cooperatives, designed principally for occupation by from one to four families which secures a promissory note must:

(3) If a plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note, the complaint shall describe the authority of the plaintiff and identify, with specificity, the document that grants the plaintiff the authority to act on behalf of the person entitled to enforce the note. This subsection is intended to require initial disclosure of status and pertinent facts and not to modify law regarding standing or real parties in interest.

The term “original note” or “original promissory note” means the signed or executed promissory note rather than a copy thereof. The term includes any renewal, replacement, consolidation, or amended and restated note or instrument given in renewal, replacement, or substitution for a previous promissory note. The term also includes a transferable record, as defined by the Uniform Electronic Transaction Act in s. 668.50(16).

(4) If the plaintiff is in possession of the original promissory note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously with the filing of the complaint for foreclosure, that the plaintiff is in possession of the original promissory note. The certification must set forth the location of the note, the name and title of the individual giving the certification, the name of the person who personally verified such possession, and the time and date on which the possession was verified.

Correct copies of the note and all allonges to the note must be attached to the certification. The original note and the allonges must be filed with the court before the entry of any judgment of foreclosure or judgment on the note.

(5) If the plaintiff seeks to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury must be attached to the complaint. The affidavit must:

(6) The court may sanction the plaintiff for failure to comply with this section.

(7) This

section does not apply to any foreclosure proceeding involving timeshare interests under

part III of

chapter 721.

History. — s. 3, ch. 2013-137.

702.03 Certain foreclosures validated.

History. — s. 1, ch. 13642, 1929; CGL 1936 Supp. 5748(1).

702.035 Legal notice concerning foreclosure proceedings.

History. — s. 4, ch. 2001-215; s. 7, ch. 2006-175; s. 2, ch. 2007-185.

702.036 Finality of mortgage foreclosure judgment.

(1)(

a) In any action or proceeding in which a party seeks to set aside, invalidate, or challenge the validity of a final judgment of foreclosure of a mortgage or to establish or reestablish a lien or encumbrance on the property in abrogation of the final judgment of foreclosure of a mortgage, the court shall treat such request solely as a claim for monetary damages and may not grant relief that adversely affects the quality or character of the title to the property, if:

(2) For purposes of this section, the following, without limitation, shall be considered persons affiliated with the foreclosing lender:

(3) After foreclosure of a mortgage based upon the enforcement of a lost, destroyed, or stolen note, a person who is not a party to the underlying foreclosure action but who claims to be the person entitled to enforce the promissory note secured by the foreclosed mortgage has no claim against the foreclosed property after it is conveyed for valuable consideration to a person not affiliated with the foreclosing lender or the foreclosed owner. This

section does not preclude the person entitled to enforce the promissory note from pursuing recovery from any adequate protection given pursuant to s. 673.3091 or from the party who wrongfully claimed to be the person entitled to enforce the promissory note under s. 702.11(2) or otherwise, from the maker of the note, or from any other person against whom it may have a claim relating to the note.

History. — s. 4, ch. 2013-137.

702.04 Mortgaged lands in different counties.

History. — RS 1989; s. 1, ch. 4420, 1895; GS 2503; s. 1, ch. 7339, 1917; RGS 3846; CGL 5749.

702.05 Mortgaged lands sold for taxes.

History. — s. 1, ch. 3903, 1889; RS 1990; GS 2504; RGS 3847; CGL 5750; s. 783, ch. 97-102.

702.06 Deficiency decree; common-law suit to recover deficiency.

History. — s. 1, ch. 11993, 1927; CGL 5751; s. 1, ch. 13625, 1929; s. 5, ch. 2013-137.

702.065 Final judgment in uncontested proceedings where deficiency judgment waived; attorney’s fees when default judgment entered.

(1) In uncontested mortgage foreclosure proceedings in which the mortgagee waives the right to recoup any deficiency judgment, the court shall enter final judgment within 90 days from the date of the close of pleadings. For the purposes of this subsection, a mortgage foreclosure proceeding is uncontested if an answer not contesting the foreclosure has been filed or a default judgment has been entered by the court.

(2) In a mortgage foreclosure proceeding, when a default judgment has been entered against the mortgagor and the note or mortgage provides for the award of reasonable attorney’s fees, it is not necessary for the court to hold a hearing or adjudge the requested attorney’s fees to be reasonable if the fees do not exceed 3 percent of the principal amount owed at the time of filing the complaint, even if the note or mortgage does not specify the percentage of the original amount that would be paid as liquidated damages. Such fees constitute liquidated damages in any proceeding to enforce the note or mortgage. This

section does not preclude a challenge to the reasonableness of the attorney’s fees.

History. — s. 2, ch. 2001-215.

702.07 Power of courts and judges to set aside foreclosure decrees at any time before sale.

History. — s. 1, ch. 11881, 1927; CGL 5752.

702.08 Effect of setting aside foreclosure decree.

History. — s. 2, ch. 11881, 1927; CGL 5753.

702.09

Definitions.

History. — s. 3, ch. 11881, 1927; CGL 5754; s. 4, ch. 2002-27; s. 13, ch. 2003-14; s. 9, ch. 2018-55.

702.10 Order to show cause; entry of final judgment of foreclosure; payment during foreclosure.

(1) A lienholder may request an order to show cause for the entry of final judgment in a foreclosure action. For purposes of this section, the term “lienholder” includes the plaintiff and a defendant to the action who holds a lien encumbering the property or a defendant who, by virtue of its status as a condominium association, cooperative association, or property owners’ association, may file a lien against the real property subject to foreclosure. Upon filing, the court shall immediately review the request and the court file in chambers and without a hearing.

If, upon examination of the court file, the court finds that the complaint is verified, complies with s. 702.015, and alleges a cause of action to foreclose on real property, the court shall promptly issue an order directed to the other parties named in the action to show cause why a final judgment of foreclosure should not be entered.

(2) Except as provided in paragraph (i), in any action for foreclosure, other than owner-occupied residential real estate, in addition to any other relief that the court may award, the plaintiff may request that the court enter an order directing the mortgagor defendant to show cause why an order to make payments during the pendency of the foreclosure proceedings or an order to vacate the premises should not be entered.

History. — s. 14, ch. 93-250; s. 3, ch. 2001-215; s. 6, ch. 2013-137; s. 10, ch. 2018-55.

702.11 Adequate protections for lost, destroyed, or stolen notes in mortgage foreclosure.

(1) In connection with a mortgage foreclosure, the following constitute reasonable means of providing adequate protection under s. 673.3091, if so found by the court:

(2) Any person who wrongly claims to be the holder of or pursuant to s. 673.3011 to be entitled to enforce a lost, stolen, or destroyed note and causes the mortgage secured thereby to be foreclosed is liable to the actual holder of the note, without limitation to any adequate protections given, for actual damages suffered together with attorney fees and costs of the actual holder of the note in enforcing rights under this subsection. In addition, the actual holder of the note may pursue recovery directly against any adequate protections given.

History. — s. 7, ch. 2013-137.

702.12 Actions in foreclosure.

(1)(

a) A lienholder, in an action to foreclose a mortgage, may submit any document the defendant filed under penalty of perjury in the defendant’s bankruptcy case for use as an admission by the defendant.

(2) Pursuant to s. 90.203, a court shall take judicial notice of an order entered in a bankruptcy case upon the request of a lienholder.

(3) This

section does not preclude the defendant in a foreclosure action from raising a defense based upon the lienholder’s action or inaction subsequent to the filing of the document filed in the bankruptcy case which evidenced the defendant’s intention to surrender the mortgaged property to the lienholder.

(4) This

section applies to any foreclosure action filed on or after October 1, 2018.

History. — s. 1, ch. 2018-15.