THE IMPACT OF THE 2013 FLORIDA SESSION LAW
(CHAPTER
2013-137) C.S.C.S.H.B. NO. 87
By Michael W.
Leonard, Esquire
Boyle, Gentile,
Leonard & Crockett, P.A.
On June 7, 2013,
Florida’s Governor, Rick Scott, signed the Committee Substitute for House Bill
No. 87 (the “Act”). Foreclosure—Actions
and Proceedings—Complaint, 2013 Fla. Sess. Law Serv. Ch. 2013-137 (C.S.C.S.H.B.
87). The impact of this House Bill is significant
for actions involving foreclosure of Florida real estate, and alters, some would
say significantly, Florida’s foreclosure landscape. The purpose of this article is not to discuss
all of the statutory changes, but to highlight some of the changes which this
author finds substantial.
Of first
importance is the issue of whether these statutory modifications have retroactive
impact, and therefore affect pending foreclosure actions or only actions which
are filed after the respective statutes’ effective dates. The first sentence of Section 8 of the Act
states that, “[T]he Legislature finds that this act is remedial in nature and
applies to all mortgages encumbering real property and all promissory notes
secured by a mortgage, whether executed before, on or after the effective date
of this act.” The Act clearly states
that it is remedial, and remedial statutes, as a general rule, have retroactive
application. The enacting Legislation,
however, provides exceptions to this general statement, which exceptions will
be discussed below.
Section
95.11, Florida Statutes, relating to Florida’s statute of limitations, now clarifies
that as to actions filed after July 1, 2013, a lender which has or is
foreclosing on a one to four family dwelling unit must enforce its claim for a
deficiency within one year from the date that a certificate of title is issued
by the clerk or the day after the lender accepts a deed in lieu of
foreclosure.
Additionally,
the Governor and the Legislature created Section 702.015, Florida Statutes,
which supplements the requirements of lenders relating to claims relating to
lost or destroyed instruments. The
creation of this Statute now requires that if the action relates to residential
property, the Complaint must affirmatively allege: (a) that at the time of the
commencement of the action, the Plaintiff holds the note; (b) the specific
factual basis by which the Plaintiff is the entity entitled to enforce the note;
(c) if the Plaintiff was delegated authority to file the foreclosure action on
behalf of another entity that is the actual owner of the note, the authority of
the Plaintiff and the document which grants the Plaintiff such authority, and;
(d) if the Plaintiff is in possession of the note, a statement, under penalty
of perjury, that the Plaintiff holds the subject note. Alternatively, if the Plaintiff does not
possess the original note, it must provide an affidavit which details the clear
chain of custody of the note, the facts showing that the Plaintiff is entitled
to enforce the note, together with exhibits of such copies of the note and
allonge, or other documents showing receipt of the original note.
Section
702.036, Florida Statutes, was also created which provides that if a party
attempts to challenge a foreclosure judgment or the foreclosure sale resulting
therefrom, that party’s relief is limited to one of a claim for monetary
damages, which relief will not affect the quality or character of the title to
the foreclosure property. This is a
significant change for those successful third party bidders acquiring title at
foreclosure sale and having to spend substantial resources in proving the
validity of their title.
Substantial
revisions were likewise made to Section 702.10, Florida Statutes. Now, a lien holder, which includes not only
the Plaintiff lender but also any defendant who holds a valid lien encumbering
the subject property, has the right to demand an expedited foreclosure process
through an “order to show cause”. The
enactment of this statute applies even to causes of action pending with courts
on the effective date. This legislative
enactment is particularly important to both condominium and homeowner’s
associations who are often pushing for lenders to timely complete their
foreclosure action.
Finally,
Section 702.11, Florida Statutes, was also created as part of the Act, which
specifies what is deemed adequate protection for a borrower when the Plaintiff
lender is not in possession of the original note. Adequate protection now includes a written
indemnification agreement, a surety bond, a letter of credit, a deposit of cash
collateral, or such other security as the court deems just and proper. Like Section 702.10, this statute applies to
actions currently pending in Florida tribunals.
No comments:
Post a Comment