Florida Foreclosure is Judicial.
Notice of Foreclosure
Florida foreclosure begins when the lender files a lawsuit (Lis Pendens) against
the homeowner. The homeowners must be notified of the legal action pending
and must file an answer within a specified period of time. If the homeowner does
not respond, the court will make a judgment against the homeowner and set an
auction date.
CHAPTER 702
FORECLOSURE OF MORTGAGES, AGREEMENTS FOR DEEDS,
AND STATUTORY LIENS
702.01 Equity.
702.03 Certain foreclosures validated.
702.035 Legal notice concerning foreclosure proceedings.
702.04 Mortgaged lands in different counties.
702.05 Mortgaged lands sold for taxes.
702.06 Deficiency decree; common-law suit to recover deficiency.
702.065 Final judgment in uncontested proceedings where deficiency judgment
waived; attorney’s fees when default judgment entered.
702.07 Power of courts and judges to set aside foreclosure decrees at any time
before sale.
702.08 Effect of setting aside foreclosure decree.
702.09 Definitions.
702.10 Order to show cause; entry of final judgment of foreclosure; payment
during foreclosure.
702.01 Equity.–All mortgages shall be foreclosed in equity. In a mortgage
foreclosure action, the court shall sever for separate trial all counterclaims
against the foreclosing mortgagee. The foreclosure claim shall, if tried, be tried to
the court without a jury.
History.–RS 1987; GS 2501; RGS 3844; CGL 5747; s. 7, ch. 22858, 1945; s. 2, ch.
87-217.
702.03 Certain foreclosures validated.–All mortgage foreclosures heretofore
made, or now pending, wherein there has been annexed to the bill of complaint in
such cause, an uncertified copy of the mortgage, as provided by chapter 12095,
Acts of 1927, entitled: “An act to amend section 3845 RGS relating to complaint in
foreclosure of mortgages” are hereby validated and confirmed insofar as they
relate to the copy of the mortgage attached to such complaint, to the same extent
and effect as if section 3117, RGS, had been expressly repealed by chapter 12095,
1927, entitled: “An act to amend section 3845 RGS relating to complaint in
foreclosure of mortgages.”
History.–s. 1, ch. 13642, 1929; CGL 1936 Supp. 5748(1).
702.035 Legal notice concerning foreclosure proceedings.–Whenever a legal
advertisement, publication, or notice relating to a foreclosure proceeding is
required to be placed in a newspaper, it is the responsibility of the petitioner or
petitioner’s attorney to place such advertisement, publication, or notice. For
counties with more than 1 million total population as reflected in the 2000 Official
Decennial Census of the United States Census Bureau as shown on the official
website of the United States Census Bureau, any notice of publication required
by this section shall be deemed to have been published in accordance with the
law if the notice is published in a newspaper that has been entered as a periodical
matter at a post office in the county in which the newspaper is published, is
published a minimum of 5 days a week, exclusive of legal holidays, and has been
in existence and published a minimum of 5 days a week, exclusive of legal
holidays, for 1 year or is a direct successor to a newspaper that has been in
existence for 1 year that has been published a minimum of 5 days a week,
exclusive of legal holidays. The advertisement, publication, or notice shall be
placed directly by the attorney for the petitioner, by the petitioner if acting pro se,
or by the clerk of the court. Only the actual costs charged by the newspaper for
the advertisement, publication, or notice may be charged as costs in the action.
History.–s. 4, ch. 2001-215; s. 7, ch. 2006-175; s. 2, ch. 2007-185.
702.04 Mortgaged lands in different counties.–When a mortgage includes lands,
railroad track, right-of-way, or terminal facilities and station grounds, lying in two
or more counties, it may be foreclosed in any one of said counties, and all
proceedings shall be had in that county as if all the mortgaged land, railroad
track, right-of-way, or terminal facilities and station grounds lay therein, except
that notice of the sale must be published in every county wherein any of the
lands, railroad track, right-of-way, or terminal facilities and station grounds to be
sold lie. After final disposition of the suit, the clerk of the circuit court shall
prepare and forward a certified copy of the decree of foreclosure and sale and of
the decree of confirmation of sale to the clerk of the circuit court of every county
wherein any of the mortgaged lands, railroad tracks, right-of-way, or terminal
facilities and station grounds lie, to be recorded in the foreign judgment book of
each such county, and the costs of such copies and of the record thereof shall be
taxed as costs in the cause.
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.–Any person who has a lien by mortgage
or otherwise upon lands sold for taxes may, within the time allowed by law for
redemption, redeem such lands, and the receipt of the officer authorized to
receive the amount paid for redemption money shall entitle the lienholder to
collect the said amount, with interest at the rate of 10 percent per annum, as a
part of and in the same manner as the amount secured by her or his original lien.
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.–In all suits for
the foreclosure of mortgages heretofore or hereafter executed the entry of a
deficiency decree for any portion of a deficiency, should one exist, shall be within
the sound judicial discretion of the court, but the complainant shall also have the
right to sue at common law to recover such deficiency, provided no suit at law to
recover such deficiency shall be maintained against the original mortgagor in
cases where the mortgage is for the purchase price of the property involved and
where the original mortgagee becomes the purchaser thereof at foreclosure sale
and also is granted a deficiency decree against the original mortgagor.
History.–s. 1, ch. 11993, 1927; CGL 5751; s. 1, ch. 13625, 1929.
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.–The circuit courts of this state, and the judges thereof at chambers,
shall have jurisdiction, power, and authority to rescind, vacate, and set aside a
decree of foreclosure of a mortgage of property at any time before the sale
thereof has been actually made pursuant to the terms of such decree, and to
dismiss the foreclosure proceeding upon the payment of all court costs.
History.–s. 1, ch. 11881, 1927; CGL 5752.
702.08 Effect of setting aside foreclosure decree.–Whenever a decree of
foreclosure has been so rescinded, vacated, and set aside and the foreclosure
proceedings dismissed as provided in s. 702.07, the mortgage, together with its
lien and the debt thereby secured, shall be, both in law and equity, completely
relieved of all effects of any kind whatsoever resulting from or on account of the
foreclosure proceedings and the decree of foreclosure and fully restored in all
respects to the original status of the same as it existed prior to the foreclosure
proceedings and the decree of foreclosure, and thereafter the same shall be for
all purposes whatsoever legally of force and effect just as if foreclosure
proceeding had never been instituted and a decree of foreclosure had never been
made.
History.–s. 2, ch. 11881, 1927; CGL 5753.
702.09 Definitions.–For the purposes of ss. 702.07 and 702.08 the words “decree
of foreclosure” shall include a judgment or order rendered or passed in the
foreclosure proceedings in which the decree of foreclosure shall be rescinded,
vacated, and set aside; the word “mortgage” shall mean any written instrument
securing the payment of money or advances and includes liens to secure
payment of assessments arising under chapters 718 and 719 and liens created
pursuant to the recorded covenants of a homeowners’ association as defined in
s. 712.01; the word “debt” shall include promissory notes, bonds, and all other
written obligations given for the payment of money; the words “foreclosure
proceedings” shall embrace every action in the circuit or county courts of this
state wherein it is sought to foreclose a mortgage and sell the property covered
by the same; and the word “property” shall mean and include both real and
personal property.
History.–s. 3, ch. 11881, 1927; CGL 5754; s. 4, ch. 2002-27; s. 13, ch. 2003-14.
702.10 Order to show cause; entry of final judgment of foreclosure; payment
during foreclosure.–
(1) After a complaint in a foreclosure proceeding has been filed, the mortgagee
may request an order to show cause for the entry of final judgment and the court
shall immediately review the complaint. If, upon examination of the complaint, the
court finds that the complaint is verified and alleges a cause of action to
foreclose on real property, the court shall promptly issue an order directed to the
defendant to show cause why a final judgment of foreclosure should not be
entered.
(a) The order shall:
1. Set the date and time for hearing on the order to show cause. However, the
date for the hearing may not be set sooner than 20 days after the service of the
order. When service is obtained by publication, the date for the hearing may not
be set sooner than 30 days after the first publication. The hearing must be held
within 60 days after the date of service. Failure to hold the hearing within such
time does not affect the validity of the order to show cause or the jurisdiction of
the court to issue subsequent orders.
2. Direct the time within which service of the order to show cause and the
complaint must be made upon the defendant.
3. State that the filing of defenses by a motion or by a verified or sworn answer at
or before the hearing to show cause constitutes cause for the court not to enter
the attached final judgment.
4. State that the defendant has the right to file affidavits or other papers at the
time of the hearing and may appear personally or by way of an attorney at the
hearing.
5. State that, if the defendant files defenses by a motion, the hearing time may be
used to hear the defendant’s motion.
6. State that, if the defendant fails to appear at the hearing to show cause or fails
to file defenses by a motion or by a verified or sworn answer or files an answer
not contesting the foreclosure, the defendant may be considered to have waived
the right to a hearing and in such case the court may enter a final judgment of
foreclosure ordering the clerk of the court to conduct a foreclosure sale.
7. State that if the mortgage provides for reasonable attorney’s fees and the
requested attorney’s fees do not exceed 3 percent of the principal amount owed
at the time of filing the complaint, it is unnecessary for the court to hold a hearing
or adjudge the requested attorney’s fees to be reasonable.
8. Attach the final judgment of foreclosure the court will enter, if the defendant
waives the right to be heard at the hearing on the order to show cause.
9. Require the mortgagee to serve a copy of the order to show cause on the
mortgagor in the following manner:
a. If the mortgagor has been served with the complaint and original process,
service of the order may be made in the manner provided in the Florida Rules of
Civil Procedure.
b. If the mortgagor has not been served with the complaint and original process,
the order to show cause, together with the summons and a copy of the complaint,
shall be served on the mortgagor in the same manner as provided by law for
original process.
Any final judgment of foreclosure entered under this subsection is for in rem
relief only. Nothing in this subsection shall preclude the entry of a deficiency
judgment where otherwise allowed by law.
(b) The right to be heard at the hearing to show cause is waived if the defendant,
after being served as provided by law with an order to show cause, engages in
conduct that clearly shows that the defendant has relinquished the right to be
heard on that order. The defendant’s failure to file defenses by a motion or by a
sworn or verified answer or to appear at the hearing duly scheduled on the order
to show cause presumptively constitutes conduct that clearly shows that the
defendant has relinquished the right to be heard. If a defendant files defenses by
a motion or by a verified or sworn answer at or before the hearing, such action
constitutes cause and precludes the entry of a final judgment at the hearing to
show cause.
(c) 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 unnecessary 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 on the note or mortgage at the time of
filing, even if the note or mortgage does not specify the percentage of the original
amount that would be paid as liquidated damages.
(d) If the court finds that the defendant has waived the right to be heard as
provided in paragraph (b), the court shall promptly enter a final judgment of
foreclosure. If the court finds that the defendant has not waived the right to be
heard on the order to show cause, the court shall then determine whether there is
cause not to enter a final judgment of foreclosure. If the court finds that the
defendant has not shown cause, the court shall promptly enter a judgment of
foreclosure.
(2) In an action for foreclosure, other than residential real estate, the mortgagee
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.
(a) The order shall:
1. Set the date and time for hearing on the order to show cause. However, the
date for the hearing shall not be set sooner than 20 days after the service of the
order. Where service is obtained by publication, the date for the hearing shall not
be set sooner than 30 days after the first publication.
2. Direct the time within which service of the order to show cause and the
complaint shall be made upon the defendant.
3. State that the defendant has the right to file affidavits or other papers at the
time of the hearing and may appear personally or by way of an attorney at the
hearing.
4. State that, if the defendant fails to appear at the hearing to show cause and
fails to file defenses by a motion or by a verified or sworn answer, the defendant
may be deemed to have waived the right to a hearing and in such case the court
may enter an order to make payment or vacate the premises.
5. Require the mortgagee to serve a copy of the order to show cause on the
mortgagor in the following manner:
a. If the mortgagor has been served with the complaint and original process,
service of the order may be made in the manner provided in the Florida Rules of
Civil Procedure.
b. If the mortgagor has not been served with the complaint and original process,
the order to show cause, together with the summons and a copy of the complaint,
shall be served on the mortgagor in the same manner as provided by law for
original process.
(b) The right to be heard at the hearing to show cause is waived if the defendant,
after being served as provided by law with an order to show cause, engages in
conduct that clearly shows that the defendant has relinquished the right to be
heard on that order. The defendant’s failure to file defenses by a motion or by a
sworn or verified answer or to appear at the hearing duly scheduled on the order
to show cause presumptively constitutes conduct that clearly shows that the
defendant has relinquished the right to be heard.
(c) If the court finds that the defendant has waived the right to be heard as
provided in paragraph (b), the court may promptly enter an order requiring
payment in the amount provided in paragraph (f) or an order to vacate.
(d) If the court finds that the mortgagor has not waived the right to be heard on
the order to show cause, the court shall, at the hearing on the order to show
cause, consider the affidavits and other showings made by the parties appearing
and make a determination of the probable validity of the underlying claim alleged
against the mortgagor and the mortgagor’s defenses. If the court determines that
the mortgagee is likely to prevail in the foreclosure action, the court shall enter an
order requiring the mortgagor to make the payment described in paragraph (e) to
the mortgagee and provide for a remedy as described in paragraph (f). However,
the order shall be stayed pending final adjudication of the claims of the parties if
the mortgagor files with the court a written undertaking executed by a surety
approved by the court in an amount equal to the unpaid balance of the mortgage
on the property, including all principal, interest, unpaid taxes, and insurance
premiums paid by the mortgagee.
(e) In the event the court enters an order requiring the mortgagor to make
payments to the mortgagee, payments shall be payable at such intervals and in
such amounts provided for in the mortgage instrument before acceleration or
maturity. The obligation to make payments pursuant to any order entered under
this subsection shall commence from the date of the motion filed hereunder. The
order shall be served upon the mortgagor no later than 20 days before the date
specified for the first payment. The order may permit, but shall not require the
mortgagee to take all appropriate steps to secure the premises during the
pendency of the foreclosure action.
(f) In the event the court enters an order requiring payments the order shall also
provide that the mortgagee shall be entitled to possession of the premises upon
the failure of the mortgagor to make the payment required in the order unless at
the hearing on the order to show cause the court finds good cause to order some
other method of enforcement of its order.
(g) All amounts paid pursuant to this section shall be credited against the
mortgage obligation in accordance with the terms of the loan documents,
provided, however, that any payments made under this section shall not
constitute a cure of any default or a waiver or any other defense to the mortgage
foreclosure action.
(h) Upon the filing of an affidavit with the clerk that the premises have not been
vacated pursuant to the court order, the clerk shall issue to the sheriff a writ for
possession which shall be governed by the provisions of s. 83.62.
Notice of Florida Foreclosure Sale
The notice of sale shall include at least the following information,:
The name, address and telephone number of the person to contact for information
regarding the real estate, the address of the property, a legal description of the property,
a description of the improvements, the time and place of sale, the times specified in the
judgment, the case title, number, and court which the foreclosure was filed, and terms of
the sale
Florida foreclosure law states that the notice of sale shall be published at least 3
consecutive weeks, the last such notice not less than 5 days prior to the sale.
Florida Foreclosure Auction
Foreclosure auctions
in Florida typically take place 30 days after judgment is filed
,
at 11:00 am on the county courthouse steps. Winning bidder is required to have 5%
down and the balance is due by the end of the day. Upon payment in full of the amount
bid, the person conducting the sale shall issue a Certificate of Sale and give to the
purchaser.
Redemption Period
Florida foreclosure law states that the homeowner has the right to redeem the property
anytime before the day of the sale. After the Certificate of Sale has been issued,
there is no right of redemption.
Equity
All mortgages shall be foreclosed in equity. In a mortgage foreclosure action, the
court shall sever for separate trial all counterclaims against the foreclosing
mortgagee. The foreclosure claim shall, if tried, be tried to the court without a
jury.
Legal notice concerning foreclosure proceedings
Whenever a legal advertisement, publication, or notice relating to a foreclosure
proceeding is required to be placed in a newspaper, it is the responsibility of the
petitioner or petitioner’s attorney to place such advertisement, publication, or notice.
Florida foreclosure law states that the advertisement, publication, or notice shall be
placed directly by the attorney for the petitioner, by the petitioner if acting pro se, or by
the clerk of the court.
Order to show cause; entry of final judgment of foreclosure; payment during
foreclosure
* (1) After a complaint in a foreclosure proceeding has been filed, the mortgagee may
request an order to show cause for the entry of final judgment and the court shall
immediately review the complaint. If, upon examination of the complaint, the court finds
that the complaint is verified and alleges a cause of action to foreclose on real property,
the court shall promptly issue an order directed to the defendant to show cause why a
final judgment of foreclosure should not be entered.
(a) Florida foreclosure law states that the order shall:
1.
Set the date and time for hearing on the order to show cause. However, the
date for the hearing may not be set sooner than 20 days after the service of the
order. When service is obtained by publication, the date for the hearing may not
be set sooner than 30 days after the first publication. The hearing must be held
within 60 days after the date of service
. Failure to hold the hearing within such time
