RESIDENTIAL FORECLOSURE BENCHBOOK Version 2.

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Prepared by Honorable Jennifer D. Bailey
Administrative Judge, Circuit Civil Jurisdiction Division Eleventh Judicial Circuit of Florida

and Doris Bermudez-Goodrich
Assistant General Counsel, Eleventh Judicial Circuit of Florida

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TABLE OF CONTENTS

Introduction Lender s Right to Foreclose . Default Acceleration Statute of Limitations Jurisdiction Parties to the Foreclosure Action Filing of the Lis Pendens The Foreclosure Complaint Original Document Filing and Reestablishment of the Note Fair Debt Practice Act Mandatory Mediation of Homestead Foreclosures Service of Process Personal Service . Constructive Service Service of Process outside the State of Florida Substitution of Parties Entry of Default Appointment of a Guardian ad Litem Appointment of a Receiver Summary Final Judgment of Foreclosure Affidavits in Support of Motion for Summary Judgment Affirmative Defenses Summary Judgment Hearing Final Judgment Post Judgment Issues Right of Redemption Judicial Sale Post Sale Issues Right of possession Protecting Tenants at Foreclosure Act of 2009 Surplus Deficiency judgment Bankruptcy Florida s Expedited Foreclosure Statute Common Procedural Errors Mortgage Workout Options

... 2 2 3 .3 .3 .4 5 . 12 . 12 . 15 16 . 17 20 20 ......... 22 .. 26 .. 27 28 29 ......... 30 .. 31 . 33 .. 36 .. 42 .. 42 . 45 47 ........ 48 .. 51 . 52 53 .. 54 .. 55 . 59 . 59 60 61

© 2010, 2011

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Introduction
1. Foreclosure is the enforcement of a security interest by judicial sale of

collateral. All mortgages shall be foreclosed of equity. § 702.01, Fla. Stat. (2011). 2. Definitions: (a) Mortgage: any written instrument securing the payment of money or advances including liens to secure payment of assessments for condominiums, cooperatives and homeowners associations. § 702.09, Fla. Stat. (2011). A mortgage creates only a specific lien against the property; it is not a conveyance of legal title or of the right of possession. § 697.02, Fla. Stat. (2011); Fla. Nat l. Bank & Trust Co. of Miami v. Brown, 47 So. 2d 748(1949). (b) Mortgagee:refers to the lender; the secured party or holder of the mortgage lien. § 721.82(6), Fla. Stat. (2011). (c) Mortgagor: refers to the obligor or borrower; the individual or entity who has assumed the obligation secured by the mortgage lien. (2010). § 721.82(7), Fla. Stat. Hoffman v.

The mortgagor holds legal title to the mortgaged property.

Semet, 316 So. 2d 649, 652 (Fla. 4th DCA 1975). 3. To foreclosure the mortgage lien and extinguish equities of redemption,

secured parties must file a civil action. § 45.0315, Fla. Stat. (2011).

Lender s Right to Foreclose
1. Constitutional obligation to uphold mortgage contract and right to foreclose. F. S. A. Const. Art 1 § 10. (a) Right unaffected by defendant s misfortune. Lee County Bank v. Christian Mut. Found., Inc., 403 So. 2d 446, 449 (Fla. 2d DCA 1981); Morris v. Waite, 160 So. 516, 518 (Fla. 1935). (b) Right not contingent on mortgagor s health, good fortune, ill fortune, or the regularity of his employment. Home Owners Loan Corp. v. Wilkes, 178 So. 161, 164 (Fla. 1938). (c) Contract impairment or imposition of moratorium is prohibited by court. Lee County Bank v. Christian Mut. Foundation, Inc., 403 So. 2d 446, 448 (Fla. 1981).Even

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III Ltd. 1st DCA 1994). Mortgage Acceleration Clause . 410 B. Default 1. 2d DCA 1993). 733 (Fla. prior notice is not required unless it is a contractual term. David v. Partnership. Perez.Van Petten. 621 So. Sun Fed. thereby reinstating the mortgage. Kirk v. 4..2d 1229 (Fla. D. 2d 732. Commencement .. 2. (a) Absent acceleration clause. 1984). 1984). 34 (Fla.confers a contract right upon the note or mortgage holder which he may elect to enforce upon default. 418 So. including failure to pay taxes or maintain casualty insurance. In Re Sundale Ltd. 2d 1067 (Fla. of Defuniak Springs. 461 So.mortgagor may defeat foreclosure by the payment of Pici v. 2d 30. 6/3/09). or (b) impairment of security.. 94 (Fla. 2d 93. 2nd DCA 1996). Statute of Limitations 3 . & Loan Ass n. David v. Acceleration . Bank of arrearages. 461 So. 21 So. 3. (filing of complaint is notice of acceleration). Basis for default: (a) mortgagor s failure to tender mortgage payments. lender can only sue for amount in default. R.gives the mortgagee the authority to declare the entire mortgage obligation due and payable immediately upon default.2d 93 (Fla. 643 So. 105 (Fla. 286 (Fla. Smiley v. Fowler v. First Union Nat l. Florida. Pre-acceleration . Manufactured Housing Assoc. Millett v. First Sav. S. 2. 679 So.upon delivery of written notice of default to the mortgagor. 1896). Sav. 101. see also. & Loan Ass n. Florida courts may not alter mortgagee s contractual rights based on equitable considerations. Right to foreclosure accrues upon the mortgagor s default. 3d DCA 1982). Acceleration 1.though mortgage foreclosure proceedings are equitable proceedings. Sun Federal Savings & Loan Assoc.

commencement upon demand for payment. 95. 2. 3. 357 (Fla. 37 So. New Falls Corporation. foreclosure actions. Court s judicial authority over real property based on in rem jurisdiction.1. (b) A note or other written instrument . Rigdon. Fla. Ruhl v. Riede.031(1). Fla. 1st DCA 1990). Bank v. Stat.acknowledgment of the debt or partial loan § payments subsequent to the acceleration notice toll the statute of limitations. Fla. 4 . 360 (Fla. 2d 353. § 95. 1980). default). Anderson. (c) Oral loan payable on demand . Commencement of limitations period: (a) General rule commencement upon accrual of the cause of action.051(1)(f). Farmers & Merch. 2d 883. Five year statute of limitations period . Cadle Company v. Two part test to establish in rem jurisdiction: (1) jurisdiction over the class of cases to which the case belongs. 2d 470. Jurisdiction 1. (2011). 390 So. of Labor & Employment Sec. this occurs when the last element of the cause of action is satisfied (for example.. a contract is governed by the law of the state in which the contract was made. Ruth v. 2d DCA 2005).applies specifically to mortgage § 95. 817 So. 2002). 185 (Fla. Mosher v.when the first written demand for payment occurs. 813 (Fla. Dept. 2. 1st DCA 1959). (2011). 910 So. 145 (Fla. 565 So. Sims v. McCartha. Perry. Stat. 2d 181. 2d 812. 3d 358. 920 So. Tolling of the limitations period . (Florida statute of limitations law applied to action on the promissory note).11(2)(c). Wester v. (a) In the absence of a contractual provision governing law. 684 So. 2d 144. and (2) jurisdictional authority over the property or res that is the subject of the controversy. Dept. 878 (Fla.starts the running anew of the limitations period on the debt. of Legal Affairs. (2011). 110 So. 1996). Maggio v. 885 (Fla. 3d DCA 2010). 474 (Fla. (a) Tolling effect . 2d 876.5th DCA 2006). Stat.

Id. 1.Salomon. 2d DCA 2007). Fla. Stat. 988 (Fla. 578 (Fla. LLC. 951 So. 520 So. 4th DCA 2004). 671. (2011) as the (1) holder of the instrument. 3d 974.3011. Jeff-Ray Corp. see also. (b) Jurisdictional authority over real property only in the circuit where the land is situated. The mortgage follows the note. Alexdex Corp. (unique situation where two banks simultaneously attempted to foreclose). Parties to the Foreclosure Action Plaintiff The party entitled to enforce the promissory note is defined in §673. 2d 680. § 702. 2d 885 (Fla. Florida Constitution. 4th DCA 1990). 975 (Fla. Jacobsen. v. 682 (Fla. 2d 858 (Fla.201(21). § 5 . Fla.(a) Class of case . and (3) a person who is not in possession of the instrument who is entitled to enforce the instrument pursuant to §673. Goedmakers. (2010). v. Plaintiff must be the ownerorholder of the note as of the date of filing suit. (a) The holder of a negotiable instrument means the person in possession of the instrument payable to bearer or to the identified person in possession. Stat.3091 or §673. (court lacks in rem jurisdiction over real property located outside the court s circuit).. implemented by Section 26. at 863. Hammond v. DSY Developers. 2d 985. 874 So. Stat. Nachon Enter. (concurrent equity jurisdiction over lien foreclosures of real property that fall within statutory monetary limits). If real property lies in two counties. however.04.2d 575. Stat.012(2)(g). 43 So..4181(4). 3d DCA 2010). (2) a non-holder in possession of the instrument who has the rights of a holder.jurisdictional parameters defined by Article V Section 5(b). 1994). Fla. 1988). 641 So. WM Specialty Mortgage... Fla. (2011). Goedmakers v. Stat. the foreclosure suit may be maintained in either county. the notice of sale must be published in both. 566 So. Ruscalleda v. Inc. HSBC Bank USA. (2011).(2011). LLC v. Fla.Summary judgment reversed against bank that did not yet own the note and mortgage when it filed the foreclosure action.

Deutsche Bank National Trust Co. 4th DCA 2010). 4th DCA 2006). 948 So. (a) The holder may be the owner or a nominee. Mortgage Elec. 3d DCA 2010). 490 (Fla. 939 (Fla. 955 So. assignee or a collection and litigation agent. 36 So. Kumar Corp... Riggs v. may bring suit in its own name for the benefit of the real party in interest. v.210(a).. Civ. This standing must be established through admissible evidence. 3d 618. ABN AMRO Mortgage Group. See also. 8 So. v. Inc. Ltd. § 673. (1) Endorsement in blank makes the note payable to bearer and allows the Possession of the original note to be negotiated by transfer of possession alone. (2011). Inc. Inc. Taylor v. Fla. Absent formal assignment of mortgage or 6 . 3d DCA 1985). even if originally unauthorized and such ratification relates back and supplies the original authority. Stat.Plaintiff should assert assignee status in complaint if relying upon that status. v. 3d 488. promissory note. Jean Jacques. 2d 1178. 3d DCA 2009). 3d 936. Mortgage Electronic Registration Systems. entitled to enforce its terms. Rule 1. Fla. Inc. Davidson.2051 (2).(b) Apromissory note is a negotiable instrument and the mortgage provides the security for the repayment of the note. 3d 932. BAC Funding Consortium. R. 3d DCA 2010). 2. 44 So. Nopal Lines. (b) Plaintiff s nominee has standing to maintain foreclosure based on real party in interest rule. P. 965 So. Revoredo. 1184 (Fla. 3d DCA 2007). (2011) provides that an action may be prosecuted in the name of an authorized person without joinder of the party for whose benefit the action is brought. 2d 151 (Fla. 2d 33 (Fla. the principal may subsequently ratify its agent s act. 2d 45 (Fla. Aurora Loan Services. Azize. evidence of an effective transfer or proof that plaintiff holds the note and mortgage it seeks to foreclose. (MERS was the holder by delivery of the note). the person having standing to foreclose a note may be either the holder of the note or a non-holder in possession of the note who has the rights of a holder. proof of the purchase of the debt. 462 So. such as an agent. 2d DCA 2007). 621 (Fla. LLC. Registration Systems. such as a servicer. Assignment of note and mortgage . 933 (Fla. was sufficient under Florida s Uniform Commercial Code (UCC) to establish that it was it was the lawful holder of the note. Philogene v. Juega v. endorsed in blank. 28 So. v.A nominal party.

delivery, the mortgage in equity passes as an incident of the debt. Perry v. Fairbanks Capital Corp., 888 So. 2d 725, 726 (Fla. 5th DCA 2004); Johns v. Gillian, 134 Fla. 575, 579 (Fla. 1938); Warren v. SeminoleBond & Mortg. Co., 127 Fla. 107 (Fla. 1937), (security follows the note, the assignee of the note secured by a mortgage is entitled to the benefits of the security). Assignments must be recorded to be valid against creditors and subsequent purchasers. § 701.02, Fla. Stat. (2011). See also, Glynn v. First Union Nat l. Bank, 912 So. 2d 357, 358 (Fla. 4th DCA 2005). (a) No requirement of a written and recorded assignment of the mortgage to maintain foreclosure action where evidence establishes plaintiff as owner or holder of the note on date of filing suit. Perry, 888 So. 2d at 726; WM Specialty Mortgage, LLC, 874 So. 2d at 682; Chem. Residential Mortgage v. Rector, 742 So. 2d 300 (Fla. 1st DCA 1998); Clifford v. Eastern Mortg. & Sec. Co., 166 So. 562 (Fla. 1936). However, the incomplete, unsigned and unauthenticated assignment of mortgage attached as an exhibit to purported mortgage holder and note holder s response to motion to dismiss did not constitute admissible summary judgment evidence sufficient to establish standing. BAC Funding, 28 So. 3d at 938. If plaintiff has an assignment of mortgage recorded prior to the date of filing suit, then he can enforce even if possession of note never physically delivered. Florida courts recognize constructive delivery. The absence of the note does not make a mortgage unenforceable.

Lawyers Title Ins. Co. Inc v. Novastar Mortgage, Inc., 862 So. 2d 793, 798 (Fla. 4th DCA 2004). Assignment may be by physical delivery (provide evidence) or by written assignment. 3. MERS What is it? Mortgage Electronic Registration Systems is a corporation

which maintains an electronic registry tracking system of servicing and ownership rights to mortgages throughout the United States. In many cases MERS is the

mortgagee of record and is identified in the mortgage. On each MERS loan there is an 18 digit number used for tracking. Through the MERS servicer ID number,

homeowners can identify their lender with borrower name and property address. 4. Since the promissory note is a negotiable instrument, plaintiff must present the

original note or give a satisfactory explanation for its absence. § 90.953(1), Fla. Stat. 7

(2011); State Street Bank and Trust Co. v. Lord, 851 So. 2d 790, 791 (Fla. 4th DCA 2003). A satisfactory explanation includes loss, theft, destruction and wrongful

possession of the note. § 673.3091(1), Fla. Stat. (2011). Reestablishment of the note is governed by § 673.3091(2), Fla. Stat. (2011). Necessary and Proper Defendants 1. The owner of the fee simple title - only indispensable party defendant to a

foreclosure action. English v. Bankers Trust Co. of Calif., N. A., 895 So 2d 1120, 1121 (Fla. 4th DCA 2005). Foreclosure is void if titleholder omitted. Id.If a spouse fails to

sign the mortgage, lender may still foreclose on property owned by husband and wife when both spouses knew of loan and purchased in joint names. Countrywide Home Loans v. Kim, 898 So. 2d 250 (Fla. 2005). (a) Indispensable parties defined - necessary parties so essential to a suit that no final decision can be rendered without their joinder. Mortgage Ass n., 942 So. 2d 425, 427 (Fla. 5th DCA 2006). 2. Failure to join other necessary parties - they remain in the same position as Sudhoff v. Federal Nat l.

they were in prior to foreclosure. Abdoney v. York, 903 So. 2d 981, 983 (Fla. 2d DCA 2005). 3. Omitted party - only remedies are to compel redemption or the re-foreclosure

in a suit de novo. Id.; Quinn Plumbing Co. v. New Miami Shores Corp., 129 So. 2d 690, 693 (Fla. 1930). 4. Death of titleholder prior to entry of final judgment - beneficiaries of the Campbell v.

titleholder and the personal representative are indispensable parties. Napoli, 786 So. 2d 1232 (Fla. 2d DCA 2001).

(a) If indispensable parties not joined, action abated pending proper joinder. Id.As such, suit against a decedent alone will result in abatement. (b) Post-judgment death of titleholder, these parties are not deemed indispensable parties. Davis v. Scott, 120 So. 1 (Fla. 1929). 5. Necessary parties to the foreclosure action - all subordinate interests recorded

or acquired subsequent to the mortgage.

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(a) Includes: junior mortgagees, holders of judgments and liens acquired after the superior mortgage, lessees and tenants/parties in possession of the real property. Posnansky v. Breckenridge Estates Corp., 621 So. 2d 736, 737 (Fla. 4th DCA 1993); Commercial Laundries, Inc., v. Golf Course Towers Associates, 568 So. 2d 501, 502 (Fla. 3d DCA 1990); Crystal River Lumber Co. v. Knight Turpentine Co., 67 So. 974, 975 (Fla. 1915). (b) If junior lien holders are not joined, their rights in the real property survive the foreclosure action. (c) Joinder of original parties to the deed or mortgage are essential when a reformation count is needed to remedy an incorrect legal description contained in the deed and/or mortgage. Chanrai Inv., Inc. v. Clement, 566 So. 2d 838, 840 (Fla. 5th DCA 1990). As such, the original grantor and grantee are necessary parties in an action to reform a deed. Id. 6. Prior titleholders that signed the note and mortgage do not have to be named

in the foreclosure action unless: (a) Mortgagee seeks entry of a deficiency judgment against the prior unreleased mortgagors in the foreclosure action. PMI Ins. Co. v. Cavendar, 615 So. 2d 710, 711 (Fla. 3d DCA 1993). Superior Interests 1. First or senior mortgagees are never necessary or proper parties to the

foreclosure action by the junior mortgagee. Gonzalez v. Chase Home Finance LLC, 37 So. 3d 955, 957 (Fla. 3d DCA 2010); Garcia v. Stewart, 906 So. 2d 1117, 1119 (Fla. 4th DCA 2005); Poinciana Hotel of Miami Beach, Inc. v. Kasden, 370 So. 2d 399, 401 (Fla. 3d DCA 1979). (a) Senior liens are unaffected by the foreclosure of a junior mortgage. (b) Priority First-recorded mortgage was sufficient to place second-recorded

mortgage on constructive notice of the earlier mortgage, thereby retaining priority over the second-recorded mortgage, despite scrivener s error which misidentified the page of the plat book in which the property was described. Fidelity Bank of Florida v. Nguyen, 44 So. 3d 1238 (Fla. 5th DCA 2010). 9

2(a). S. Tadmore. 3d DCA 2009).proceeds of the loan are used to acquire the real estate or to construct improvements on the real estate. 2d 1052. 1058 (Fla.A. or (b) one percent of the original mortgage debt(provided condominium association is joined as a defendant). 601 (Fla. 23 So. 399 So. 3d DCA 1981). Citibank v. 1054 (Fla. 4th DCA 2010). Sarmiento v. § 718. Stockton. Hayward. (2011) establishes the liability of the first mortgagee. Mortgages (2008). Carteret Sav. Association Liens and Assessments 1. Coral Key Condominium Ass n. BancFlorida v. Fla. Stat. v.. The appellate court has rejected the notion that equity and fairness support an order requiring a bank to pay condominium assessments while foreclosure proceedings are pending.2. Restatement (Third) of Property. 2d 599. 689 So. (1) Priority does not extend beyond the amount of the purchase money advanced. since the statute makes it clear that the first mortgagee is required to pay assessments only after acquiring title and equity follows the law. § 7. 32 So.1176. 612 So. (a) Purchase money mortgages . Deutsche Bank National Trust Company v. U. 3d 822 (Fla. 10 . Bank. (1) The law is clear that the purchaser of a condominium unit has liability for unpaid condominium assessments. 4th DCA 1992). The purchase and conveyance of real property occur simultaneously and are given as security for a purchase money mortgage.116(1)(b).priority over all prior claims or liens that attach to the property through the mortgagor. 3d 195 (Fla. Purchase money mortgage defined . Condominium Associations Section 718. Davin & Co. 1997). 2d 1057. its successor or purchaser for condominium assessments and maintenance as the lesser of: (a) unit s unpaid common expenses and regular periodic assessments which came due 6 months prior to title acquisition. F.. Stat (2011). Whatley.. Fla. Bank National Ass n. even if latter be prior in time.

5th DCA 1999). or (b) one percent of the original mortgage debt.3085(2)(c). Stat. Avatar Props. However. (2011) establishes the liability of the first mortgagee. Fla. 895 So. Inc. Ass n. § 718. Fla. (e) Statutory revisions of the 2008 Legislature failed to remedy the potential super-priority of liens recorded prior to July 1. Bay Holdings. 2008. even if the mortgage was filed first in time. 3d DCA 2005). 724 So. This safe harbor applies only to the first mortgagee or a subsequent holder of the first mortgage. The term successor or assignee as used with respect to a first mortgagee includes only a subsequent holder of the first mortgage. Any challenge to the priority if the mortgage will likely be resolved on the basis of impairment of contract.. its successor or purchaser for homeowner s assessments and maintenance as the lesser of: (a) parcel s unpaid common expenses and regular periodic or special assessments which accrued 12 months prior to acquisition of title. (2011).. Fla. Other entities that acquire title are not entitled to this limitation of liability and are jointly and severally liable for all unpaid assessments that come due up to the time of transfer of title. 2d 1197 (Fla. limits the liability of foreclosing mortgagees for unpaid condominium assessments that become due prior to acquisition of title. § 718. Stat. (2011). many homeowners associations have subordination language in their declaration of covenants providing that their lien is subordinate to the mortgage. of Poinciana Vill. Ass n. 587 (Fla. 2. (d) The limitations on the first mortgagee s liability only apply if the lender filed suit and initially joined the homeowner s association as a defendant. Stat. 2000 Island Boulevard Condo.116(1)(a). Homeowners Associations .116(1)(g). (Prior statutory version § amended by the 2007 Legislature gave homeowner s association liens a priority.The statutory cap. 11 . 2d 585.Section 720. v. 720. Fla. (c) Homeowners Association s lien for assessments had priority over purchase money mortgage where Association s declaration of covenants contained express provision establishing priority.) Arguably. v. the subordination language is not standard in all declarations. Stat.3085(2)(c)(1). (2011).

Foss. when plaintiff only had a claim against two units. 135 So.10(2). Reverse foreclosures defined where association takes title and pursues lender or where association sets down the motion for summary judgmentdue to delays by lenders. v. S. 3d 822 (Fla. Adhin v. Filing of lis pendens . as Trustee v. 3d DCA 2009). Stat. Lennar Florida Holdings Inc. Cannot force lenders to pay association fees during pendency of foreclosure. 2d 1122 (Fla. (2011) applies to judgment liens. 5th DCA 1995). First Family Bank. (a) Constitutes bar to the enforcement against the subject real property of any other unrecorded interests and liens unless the holder of the unrecorded interest intervenes within twenty days of the notice of the lis pendens. 1250 (Fla. 5th DCA 2010). (2011). Section 55.Bowers v. 562 (Fla. Stat. Stat. 12 . Judgment Liens 1. § 55. 660 So. Inc. (a) Requirements: (1) must contain address of the party in the judgment or in an accompanying affidavit. Tadmore. Filing of the Lis Pendens 1.cuts off the rights of any person whose interest arises after filing. Fla. A judgment lien is renewable by recording a certified copy of the judgment containing a current address prior to the expiration of the judgment lien. Appellate court upheld the constitutionality of the lis pendens statute and denied an untimely motion to intervene. 2d 438. 4. 373 So. Fla. the court discharged the lis pendens as to the filing against the entire condominium. 44 So.23(1)(b). (b) There must be a connection between the claim and the property or the notice of lis pendens cannot stand. and (2) a certified copy of judgment lien must be recorded in the official records of the county. v. 1994 retain their judgment lien status for a period of 10 years from recording. First Horizon Home Loans. 23 So.3. (b) Judgment liens recorded after July 1.10(1). 3d 1245. Bank Nat l. Fla. § 48. Ass n. 3d DCA 1979). U. Pearson. (2011). 1931). 439 (Fla. In Sunrise Point.

944. §48. § 48.23 (3). § 57. Fla. P. Cimbler v. 963 So. 242 (Fla. (a) Plaintiff must allege that he is the present holder. 2d 481. of the note and mortgage. (b) The court may control and discharge the notice of lis pendens. P. Stat. Civ. Rule 1. (2011). 1930). 129 So. (b) If plaintiff is a nonresident corporation. Brent. If plaintiff has failed to file the requisite bond within 30 days after Edason v. Lis pendens automatically dissolved upon dismissal of foreclosure. 841 So. 2d 812 (Fla 3d DCA 2007). The Foreclosure Complaint 1. 1. Fla. (a) Lis pendens revived or reinstated upon the reversal of dismissal. R. Fla. Nickerson v. Vonmitschke-Collande. Cent. default. Requisite allegations assert: jurisdiction. (2011).23(2). Fla. Watermark Marina of Palm City. Fla. 482 (Fla. or representative of the holder. 2d at 482. As of 2/11/10. no lis pendens may be asserted against the realty. 5th DCA 2008). 841 So. acceleration and the legal description of the real property. R. complaint must be verified.(c) In the absence of a direct claim cognizable under the law against or upon the property. 188 (Fla. 4th DCA 2008). (2011). 2d 238. Civ. Vonmitschke-Collande v.700 (Fla. (2011). it must comply with the condition precedent of filing a nonresident bond.. Stat. Florida Supreme Court Form for foreclosure . 978 So. Greenberg.Form 1. 3d DCA 2002). Court may consider the likelihood of other damages which do not meet the standard of irreparable harm.011. (a) Exception: One year period may be tolled by the trial court s exercise of discretion or appellate review. Fla. (2010). Farmers Trust Co. 3. Rule 13 . Civ. Kramer. (2011). upon commencement of the action. 978 So. R. trial court s discretion is not limited to cases of irreparable harm. 2. 698. Stat.110(b). Validity of a notice of lis pendens is one year from filing. burdened by the lis pendens. P. 2d 187. Olesh v.420(f).

P. (d) If note and mortgage are held by assignment. 1st DCA 1998). 682 (Fla. Eigen v. Attachment of the assignment is preferred but may not be required since the cause of action is based on the note as secured by the mortgage. Fla. Nor taxes or insurance must be describe default with particularity. A copy of the tax lien must should state with particularity the nature of the interest in the real property. R. 1938). (2011). 46 So. 989 (Fla. be attached as an exhibit.. (f) Federal tax lien allegation must state interest of the United States of America. Civ.C. InterNat l. complaint should allege assignment.130(a). Chemical Residential Mortgage v. 2d DCA Salomon. LLC v. (h) Complaint must include statement of default. including: the name and address of the taxpayer. Johns v. the identity of the Internal Revenue office which filed the tax lien and if a notice of tax lien was filed. 2d 300 (Fla. (2011) mandates that a copy of the note and mortgage be attached to the complaint. P.allegation § Title 28 U.130(a). 7 (Fla. 3.S. 184 So. Props. v. Stat. 492 So. Default based on unpaid Siahpoosh v. (g) Local taxing authority or State of Florida party defendant . the date and place the tax lien was filed. R. (i) Complaint should allege compliance with condition precedent. 874 So. 742 So. Kaolin Co. 144 (Fla. Fla. the defendant may move for dismissal (after 20 days notice to plaintiff). FDIC. 1908). Rector. 4th DCA 1996).allegation is sufficient if it states that the interest of a defendant accrued subsequent to the mortgage and he is a proper party.041(2). WM Specialty Mortgage. particularly notices. § 2410(b). Gillian. (j) Legal description of the subject real property. 1986). 2d 826 (Fla. 69. 14 . 2d 988. Civ. Fla. 4th DCA 2004). not the assignment. (c) Rule 1. Vause. (2011). 140. Rule 1. 2d 680.commencement. 666 So. (e) Junior lien holders .

§ 673. (a) Loss or unintentional destruction of a note does not affect its validity or enforcement. Gutierrez v. Inc.P. A lost promissory note is a negotiable instrument. Fla. 838 (Fla. Bermudez.Lender is required to either present the original promissory note or give a satisfactory explanation for the lender s failure to present it prior to it being enforced. First Union Bank.(k) Attorney fees . Reformation of the mortgage applies if there is a legal description discrepancy. 3.3091. 2. Stat. Inc. Loan Investors. Fla. Lawyer s Title Ins. 5th DCA 1994). Reestablishment of the lost note . 1991).must be pled or it is waived. (2011). 798 (Fla. 540 So. reformation of deed is there is a deed problem. facts that prevent the owner from producing the instrument and proof of the terms of the lost instrument. 3d DCA 2000).Thompson v. L. Downs. 890 (Fla. Stat. Joymar Associates. Nat l. Note . 2d 549. 2d 888. 150 So. destroyed or stolen instruments.An owner/holder of a lost. Reestablishment of the note is necessary if the note is lost. 550 (Fla. 830 15 . if plaintiff seeks a deficiency. reformation of the note is needed if material terms are missing. 2d 835. Novastar Mortgage. Wallace v.. § 673. Deaktor v. 862 So. the guarantors must Original Document Filing and Reestablishment of the Note 1. 4th DCA 2004). Menendez. 573 So. Allegation as to obligation to pay a reasonable attorney fee is sufficient to claim entitlement. stolen or destroyed instrument may maintain an action by showing proof of his ownership. Id.. (a) Owner of note is not required to have held possession of the note when the loss occurred to maintain an action against the mortgagor. 1933). Co. Check for necessary parties to the complaint depending on the reformation issue. 2d 793. (l) Additional counts include: reestablishment of the note and reformation. v. 2d 1179 (Fla. Gage. (a) A limited exception applies to lost. 799. (2011). (m) Deficiency judgment be sued. The claim of attorney fees is based on contractual language in the note and mortgage. 5th DCA 1989). 800 (Fla. 767 So. 643 So. Stockman v. v.1041(1).

Supp. Fla. (2011). 991 So.So. (e) affiant status must be banking representative with knowledge of the particular loan.3091(1). Id. (f) indemnity language. If there is no copy. L. Stat. the court may require indemnification of the borrower for subsequent prosecution on the note and may require a bond to secure same. 1930). 4th DCA 2008). Perry.D. 459 F. 5th DCA 2004). 126. Dasma Invest. Realty Associates Fund III. (2011). 2d 1294. 2d 1037. Precise allegations and evidence are important on this issue.. 2d 124.3091(1)(a). plaintiff cannot foreclose on the note and mortgage.. Fla. (b) signators and date note executed. precluding subsequent foreclosure judgment on the same note and holding borrower harmless (d) Where the original note is lost. Fla. (c) The filing of a duplicate copy of the note is sufficient to satisfy statutory requirements in a foreclosure action. Stat. (1) Checklist for lost note affidavit: (a) original principal balance. Mortgage Copy of mortgage is sufficient. Perry v. Further. Butler Construction Co. 2006). Fairbanks Capital Corp.. Lovingood v. MERS v.. (c) rate of interest. 3d DCA 2002).P. Consider bonds particularly where there is a securitized trust. (b) If plaintiff is not in possession of the original note and did not reestablish it. § 673. 888 So. 888 So. ledger or a detailed summary of loan terms. Plaintiff should file a lost note affidavit. plaintiff is not required to prove the circumstances of the loss or destruction of the note to seek enforcement. Badra. LLC v. Plaintiff must show only that it was entitled to enforce the note at the time of loss or that it has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred. 2d 725 (Fla. 126 (Fla. 16 . 2d at 726. 1. 1039 (Fla. 135 (Fla. (d) unpaid balance and default date. § 673. 131 So. which will expire according to the terms of the trust leaving the borrower unprotected. 1302 (S. at 127.

final judgment must be set aside. 15 U. (a) Filing of suit is not an initial communication which otherwise would have given rise to notice and verification rights. 116 (Fla. 4. 1301. 1564. Fla. 2009).S. 618 F. Fla.Supp. 2d 115. 2d 1356 (Fla. 705 So. V. Fla. Campbell. (law firm engaged in collection foreclosure work was considered a debt collector where the firm sent correspondence advising of payoff and reinstatement figures and directed mortgagors to pay the law firm.R. 2d DCA 1998).eliminate abusive debt collection practices by debt collectors and to promote consistent State action to protect consumers against debt collection abuses. Palmer. Barnett Bank of LeeCounty. 523 (Bank. Benitez. D.D. McKnight v.D.. a debt collector s obligation to send a Notice of Debt is triggered by an initial communication with the consumer. 2006).D. 681 F. 1304 (M. 2001). 2.D. However. 17 . M. 2006 WL 3804729 held ineffective in Martinez v. 2007). Supp. (M. Stern. 176 F.2d 1356 (S.. Krig.C. 3. Fla. this can be corrected prior to final judgment through Fair Debt Collection Practices Act (FDCPA) 1. Some Florida courts held . Kelly v.attorneys engaged in regular foreclosure work met Sandlin v. Supp. 919 F. Fla.D. Mortgage Electronic Registration Systems.D. Lucas v. Purpose . Law Offices of David J. 2010). reformation. Note:there recent case activity debating the litigation privilege in Florida. 611 F. Note: Shapiro was held to be a debt collector because of an unauthorized prepayment fee charge on a payoff in violation of the terms of the mortgage. Supp. This notice Acosta v. the general definition of debt collector and are subject to the FDCPA. 2001). Inc. Under FDCPA. Reifler & Assoc.Trent v.2d 1324 (M. § 1692(e).(a) Mortgage must contain correct legal description. 266 B. (b) Foreclosure law firms have adopted the practice of attaching to their complaint: Notice Required under the Fair Debt Collection Practice Act. If not. 1567 (M. 1996). S. Supp. North Star Capital Acquisitions.Fla. See. Shapiro. LLC.

. Plaintiff is required to transmit to the Program Manager.Mandatory Mediation of Homestead Foreclosures 1. foreclosures of non-homestead properties and construction lien foreclosures. Plaintiff s certification of settlement authority. This Administrative Order further proscribed adherence to certain procedures concerning tenant occupied residential properties under the Protecting Tenants at 18 . Plaintiff must tender a cost check in the amount of $750. The CollinsCenterresponsibilities include: contacting the borrower. the mediator must report the mediation results to the court. referring the borrower to financial counselingand making financial documentation available electronically to the Plaintiff. a notice form (Form A) with borrower s contact information. Plaintiff s certification of residential mortgage foreclosure case status and the final judgment of foreclosure. Plaintiff s counsel and the borrower are required to be physically present at mediation. AO 09-08 established the 11th Circuit Homestead Access to Mediation Program (CHAMP) mandating mandatory mediation of homestead foreclosures prior to the matter being set for final hearing. Within ten days of the completion of the mediation. Based on the exponential increase in filings of mortgage foreclosure cases in the Eleventh Judicial Circuit Court. but is allowed to participate by telephone.the lender s representative must attend. the Collins Center.00 to cover the administrative costs of the mediation. private investor mortgage foreclosures. the Chief Judge implemented fourAdministrative Orders in the following sequence: (a) At the time of filing the complaintAdministrative Order 09-08 applies to all residential foreclosure actions involving homestead properties filed on or after May 1. Within five days of filing the complaint. (c) Administrative Order 09-09 A1 acknowledged the statutory authority of the Clerk of the Courts to conduct the sale of real or personal property by electronic means. This Administrative Order specifically exempts condominium and homeowners association fee foreclosures. (b) Administrative Order 09-09 revised the following forms: the civil cover sheet. 2009.

On February 26.00.Foreclosure Act of 2009. 2009. 2010. the balance of fees in the amount of $350. plaintiff must file a completed Form A with the Clerk listing the last known mailing address and phone number for each party. 19 . Administrative Order 10-03 A1 applies to actions filed after March 29. 2010. At the time of the filing of the complaint. The Florida Supreme Court approved the Task Force s Model Administrative Order. Inc. statewide managed mediation program. 2. is the contract Program Manager in the Eleventh Judicial Circuit. in lieu of on-site auctions for the sale of real property. (d) Administrative Order 09-18 responded to the Clerk of the Court s request for formal approval to conduct on-line auctions. a summary judgment or final hearing until they have fully complied with mediation requirements. the Plaintiff must tender RMFM fees in the amount of $400. Amending the specific format of the final judgment of foreclosure. Regulation Z. the Eleventh Judicial Circuit Court issued Administrative Order 10-03 A1 requiring mandatory mediation of all homestead mortgage foreclosure actions subject to the federal Truth in Lending Act. adopting the recommendations of the Task Force on Residential Mortgage Foreclosure Cases and establishing a uniform. The CollinsCenter for Public Policy. with minor changes to be implemented by each circuit chief judge. This Administrative Order constitutes a formal referral to mediation through the Residential Mortgage Foreclosure Mediation (RMFM) Program. Basic Procedural Requirements of Administrative Order 10-03 A1 include: (a) When suit is filed. this Administrative Order prohibited the issuance of immediate writs of possession. parties are ineligible for default judgment. the Florida Supreme Court issued Administrative Order 09-54. One business day after filing the complaint. On December 28.00 must be paid by Plaintiff within 10 days after notice of the mediation conference. 3. Specifically exempted from this Administrative Order are condominium and homeowners association fee foreclosures and mechanics and construction lien foreclosures. plaintiff must transmit Form A to the Program Manager of the RMFM along with the case number of the action.

Rule 1. (e) Plaintiff s representative may appear by telephone upon 5 days notice prior to the mediation. (2011) and Chapters 48 and 49 of the Florida Statutes. the borrower will have been deemed to elect nonparticipation in the RMFM Program. P. mediation. The court may dismiss the action without prejudice or Within 10 days after completion of impose other sanctions for failure to attend. plaintiff s attorney. If the Program Manager is unable to contact the borrower within this time frame. Fla.070(j). the borrower and the borrower s attorney. if any.070. Section 48. P. (2011). R. Civ. Absent a showing of excusable neglect or good cause. Fla. Due service of process is essential to satisfy jurisdictional requirements over the subject matter and the parties in a foreclosure action. (d) The Program Manager shall schedule a mediation session no earlier than 60 days and no later than 120 days after suit is filed. the failure to comply with the time limitations may result in the court s dismissal of the action without prejudice or the dropping of the defendant. Service of process must be made upon the defendant within 120 days after the filing of the initial pleading. 2. must attend in person. the mediator must issue a report advising the court as to the parties attendance and result. R. counseling must be completed no later than 30 days from the Program Manager s initial contact with the borrower. (2011) requires that service of process be effectuated by a certified process server on the person to be served by delivery of the 20 . of Civ. the Program Manager must contact the borrower Foreclosure and refer the borrower an approved mortgage foreclosure counselor. Service of Process 1. Fla. Stat. (c) The Program Manager must transmit the borrower s financial disclosure for mediation no later than 60 days after the Program Manager receives Form A from Plaintiff.031 (1).(b) Upon receipt of Form A. Personal Service 1. Rule 1.

Substitute service may be made upon the spouse of a person to be served.Leaving service of process with a doorman or with a tenant. Grosheim v.. (a) Statutes governing service of process are strictly construed. § 48. who is 15 years of age or older and informing them of the contents. 3d DCA 2000). Stat. Substitute service authorized by Section 48. Stat. 2d 1055 (Fla. Plaintiff should not proceed to summary judgment where service has been called into questions without resolving the issue or bringing it to the court s attention. when the defendant does not reside in the apartment is defective service. (2011). 2d 990. Fandino. State Farm Mut. v. 4th DCA 2002). Evidence that person resides at a different address from service address is ineffective service. Fla. and if the spouse resides with the person to be served. 776 So. 819 So. (2011). General de Seguros. 907 (Fla. 2d 131 (Fla. 753 (Fla. Where service issues have been raised with the plaintiff by pro se borrowers. (trial courts voiding of judgment affirmed based on plaintiff s failure to strictly comply with substitute service of process which employed Fedex). Young. (b) Judgment subject to collateral attack where plaintiff did not substantially comply with the statutory requirements of service. Greenpoint Mortgage Funding. Co. Fla. 635 So. (c) Evading service of process defined by statute as concealment of whereabouts.031 (2). 3d DCA 2001).27. & Cas. candor to the tribunal requires that the issue be communicated to the court. § 48..A. Alvarez v. Ins. Prop. (2011). (a) Ineffective service . 21 . 2d 906. (b) Use of private couriers or Federal Expressheld invalid. 751 So. Inc. FNMA v. Bodden v. Stat.. Fla. (reversed with directions to vacate default judgment and quash service of process since substituted service was not perfected). Ins. if the cause of action is not an adversary proceeding between the spouse and the person to be served.161(1). Consol. Co. S.. 4th DCA 1982). 2d 752. Id. 422 So. 2. 991 (Fla. 3d DCA 1994).complaint or other pleadings at the usual place of abode or by leaving the copies at the individual s place of abode with any person residing there.

" Id. Stat. Id. evasion was not proved based on evidence that the property was occupied and defendant s vehicle parked there. Working defendant. Fla. Styles v. Section 48. 3. 343 So. 245 So.031. 3d DCA 1977).081(2)(b). 2d 53 (Fla.if the address provided for the registered agent.) Wise v. The Third District Court further opined that "there is no rule of law which requires that the officers of the court be able to breach the self-imposed isolation in order to inform the defendant that a suit has been filed against him. (3) Statutory requirements satisfied if papers left at a place from which the person to be served can easily retrieve them and if the process server takes reasonable steps to call the delivery to the attention of the person to be served. officer or director. Stat. or principal place of business is a residence or private mailbox.the Smathers & Thompson. 5th DCA 2006). v. officer. 2d 591. 3d DCA 1982). secreted himself from the world and lived in isolation in a high security apartment refusing to answer the telephone or even to open his mail. director. defendant had "for the purpose of avoiding all legal matters.592 (Fla. In Luckey. 423 So. United Fid. (2011). 2d 604 (Fla. Fla. & Guaranty Co. Olin Corp. Service on a corporation . Haney. 932 So. whose place of employment was known to the sheriff was not concealing herself or avoiding process. 22 . sheriff only attempted serviceat the residence during work hours. officer or director in accordance with § 48.may be served on the registered agent. Warner.. (2) Effective proof of evading service must demonstrate plaintiff s attempts in light of the facts of the case (despite process server s 13 unsuccessful attempts at service.(1) The Florida case which clearly illustrates concealment is Luckey v. The Third District Court of Appeal affirmed the trial court's decision denying defendant's motion to vacate the writ of execution and levy of sale based on a record of genuine attempts to serve the defendant. (2011) . service on the corporation may be made by serving the registered agent. at 54. 2d 669 (Fla 4th DCA 1971).

(2) whether the defendant is over the age of 18. 2d 678. Inc. 2d 846. Levenson v. (b) Condition precedent to service by publication . Bank of Fla. of the Florida Statutes govern constructive service or service by publication. 4th DCA 1991).. Hollingsworth. and (3) the status of the defendant s residence. Fla. 3.041.. Section 49. (2011) identifies the enforcement of a claim of lien to any title or interest in real property such as foreclosure actions.021-40. (default judgment reversed based on plaintiff s crucial misspelling of defendant s name and subsequent search on wrong individual). (appellate court reversed and remanded to quash service of process and default based on plaintiff s knowledge of defendant s out of state residence address and subsequent failure to attempt personal service). Fla. Fidelity Fed. v. was made to acquire the necessary information and comply with the applicable statute. (2011). (service by publication is void when plaintiff knew of the defendant s Canadian residency. 2. Sav. Stat.011(1). The affidavit should be specific in terms of the actions undertaken and in what state or country the search was conducted. Gross v. 923 So. 4th DCA 2004). requires that the plaintiff file a sworn statement that shows (1) a diligent search and inquiry has been made to discover the name and residence of such person. McCarty. 5th DCA 2006). 877 So.041. but merely performed a skip trace in Florida and made no diligent search and inquiry to locate Canadian address).only available when personal service cannot be made. 679 (Fla. or if unknown. 2d 1209. United Guaranty Residential Insurance.924 to the Florida Rules of Civil Procedure. Stat. Florida s form for the affidavit of diligent search is Form 1.Section 49. Constructive service statutes are strictly construed against the party seeking to obtain service. 4th DCA 2004). 819 (Fla. the statement should set forth that it is unknown. Godsell v. Dor Cha. 1212 (Fla. 2d 818. 8786 So. reasonably appropriate to the circumstances. 579 So. (a) Plaintiff must demonstrate that an honest and conscientious effort. 23 . Service by publication . Sections 49. see below. 847 (Fla.Constructive Service by Publication 1.

(2011) (c) Plaintiff is entitled to have the clerk issue a notice of action subsequent to the filing of its sworn statement. (4) Telephone listings. Civ. Vill. Stat. Pursuant to § 49. R. (3) Public records search of criminal/civil actions. (5) Tax collector records. 704 So.. 1222 (Fla. (2011) contains a basic checklist of a diligent search and inquiry to establish constructive service. 2d 1219.need only allege that diligent search and inquiry have been made. Fla. (1) Notice . 2d 1110. (2011). applies to service by publication on a corporation. (d) Affidavit of diligent search . (2) Inquiry of neighbors. 625 So. Fla.10(1)(c)(2).09. Stat.whether unknown or in another state or country.051. P. FNMA. Fla. Fla. (2011).published once each week for two consecutive weeks.924. it is not necessary to include specific facts. However: (1) Better practice is to file an affidavit of diligent search that contains all details of the search. Floyd v. Section 49.the notice requires defendant to file defenses with the clerk and serve same upon the plaintiff s attorney within 30 days after the first publication of the notice. 1112 (Fla. 24 . Further. Demars v. the Form utilizes the following sources: (1) Inquiry as to occupants in possession of the subject property. with proof of publication filed upon final publication. 4th DCA 1993). Stat. 5th DCA 1998).. (a) Diligent search and inquiry checklist Form 1. (final judgment and sale vacated based on plaintiff s failure to conduct diligent search to discover deceased mortgagor s heirs residence and possession of the subject property). of Sandalwood LakesHomeowners Ass n. This Form adds consideration of inquiry of tenants as to the location of the owner/landlord of tenant occupied property. §49. (plaintiff s attorney failed to conduct diligent search and inquiry by neglecting to follow up on leads which he knew were likely to yield defendant s residence).

and (2) whether the plaintiff conducted an adequate search to locate the defendants. the trial court has the duty of determining: (1) if the affidavit of diligent search is legally sufficient. failure to inquire of the most likely source of 25 . (14) An inquiry of the Division of Corporations. to determine if the defendant is an officer. Id. 922 So. when a doorman in New York repeatedly informed the process server of the Defendant s location in Florida. Shepheard v. (7) Last known employer. (13) School board enrollment verification. (11) Armed Forces of the U. director or registered agent. (9) Local police department. 343 (Fla. 3d DCA 2009). 176 (Fla.s. (g) Diligent search test . reflects an insufficient amount of reasonable efforts to personally serve the defendant to justify the use of constructive service.whether plaintiff reasonably employed the knowledge at his command. (12) Department of Highway Safety & Motor Vehicles.S. Plaintiff s reliance on constructive service. (10) Local hospitals. (15) Voter registration records. If constructive service of process is disputed. if defendant has children. when they had been informed of defendant s correct address in England). (16) Inquiry of occupant of property (f) The plaintiff bears the burden of proof to establish the legal sufficiency of the affidavit when challenged. Deutsche Bank Trust Co. v. records. (reversed and voided judgment as to defendant wife based on plaintiff s failure to strictly comply with statute. Similarly.(6) Utility Co. Guggino. 3d DCA 2002). 2d 175. 3d 164. 2d 340. (8) U. 5th DCA 2006). 10 So. 165 (Fla. made diligent inquiry. S. First Home View Corp. Post Office. 823 So. correctional department.. State of Florida. Chase Manhattan Bank. De Vico v. Am. and exerted an honest and conscientious effort appropriate to the circumstances.

(i) Limitations of constructive service only confers in rem or quasi in jurisdiction.judgment based on lack of diligent search and inquiry constitutes improper service and lacks authority of law. Fla. Section states that service of process outside the United States may be 26 . V. (1) Judgment rendered void . 2d DCA 1994). (h) Defective service of process . possessing or holding a mortgage or other lien on any real property within the State gives rise to personal jurisdiction. A.213 (Fla. Redfield Investments. Carter v. A. 3d DCA 2008). 647 So. 2d 567. Barnett Bank of Southwest Fla. Id. Holt v. v.. 569 (Fla. 990 So.. 2d at 345.irregular or defective service actually gives notice of the proceedings.when defective service of process amounts to no notice of the proceedings. 1. or an officer or agent. 1139 (Fla. does not constitute reasonable diligence. 587 So. 1st DCA 1991) . by an officer in the state where the person is being served. using. Void judgment is a nullity that cannot be validated by the passage of time and may be attacked at any time.information concerning whereabouts of a corporation. 2d 211. 3d DCA 194 (Fla. (2011) . 32 So. V. Shepheard. 2d 1135.193 (c) of the Florida Statutes (2011). (1)No basis for deficiency judgment constructive service of processcannot support a judgment that determines an issue of personalliability. Section 48.194(1). N. Id. (deficiency judgment cannot be obtained absent personal service of process). provides that owning. Stat.. Batchin v. restricted to the recovery of mortgaged real property. Village of Pinecrest. Wells Fargo Bank . This extension of personal long-arm jurisdiction has been upheld in recent case law. 922 So.authorizes service of process in the same manner as service within the state. 4th DCA 2010). (2) Judgment rendered voidable . Kingsley Bank. Service of Process outside the State of Florida and in Foreign Countries Section 48.

2d 501. § 721. There are additional options to effectuating service of process for a timeshare foreclosure. 2d 18 (Fla. Stat. the date on which the process was mailed by registered mail. (2011).process sent to a designated central authority.see Diz v.authorized by Section 48. Service of process and timeshare real property: 1. 5th DCA 2003). 861 So.required to conform to the provisions of Hague Convention of 1969 concerning service abroad of judicial and extrajudicial documents in civil or commercial matters. The Hague Convention creates . the name and address on the envelope containing the process that was mailed. Stat. Service by registered mail . 3d DCA 1992). Nat l. provides that plaintiff must file an affidavit which sets forth the nature of the process. Stat.194(2). Koechli v.192(2)(b). Permits service by registered mail to nonresidents where the address of the person to be served is known. (a) Section 48. which appellate court reversed)..83. Forwarders. checked for compliance. the fact that the process was mailed by registered mail and was accepted or refused by endorsement or stamp. Fla. The return envelope from the attempt to mail process should be attached to the affidavit. and certificate prepared which documents the place and date of service or an explanation as to lack of service. (a) Procedure . (plaintiff provided a faulty address to the Spanish authorities and the trial judge entered a default judgment. 2. Fla. Hellman Int l. 502 (Fla. (return by the central authority of a foreign nation of completed certificate of service was prima facie evidence that the authority s service on a defendant in that country was made in compliance with the Hague Convention and with the law of that foreign nation). 27 . (2011). 611 So. (2011). 2. 3.appropriate means to ensure that judicial and extra-judicial documents to be served abroad shall be brought to the addressee in sufficient time. (b) Compliance issues . Fla. Foreclosure proceedings involving timeshare estates may join multiple defendants in the same action. BIP Int l. Id. served under foreign nation s law.

di Ferronato Giovanni & Co.. 462 So. 1st DCA 1999). (b) When quasi in rem or in rem relief only is sought. 339 So. Fla.105 claims. Stat.N. but it may subject you to 57. 2. Tinsley v.85(a). When substitution is permitted. Rule 1. Without proof of service demonstrating adherence to due process requirements. 1976). (2011). 2d 1119. Napoli. 2d 653 (Fla. Fla. the action may proceed in the name of the original party. Substitution is not mandatory. (2011). Tetley v. 28 . to substitute a new party based on a transfer of interest requires a court order.260. 2d 1126 (Fla. 864 So. v. § Substitution of Parties 1. Rolling Greens MHP. 721. Mangonia Residence 1. 179 (Fla. 4th DCA 2006). the Plaintiff is not entitled to entry of default or a default final judgment.P. 937 So. P. Hornsby. 2d DCA 2001). Civ. (error to enter judgment without a real party against whom judgment could be entered).85(1). Warning: Don t try to substitute in a proper plaintiff when the original plaintiff did not have standing at the time of filing of the complaint it may not be fraud on the court. Inc. including default. However. § 721. plaintiff must show the identity of the new party s interest and the circumstances. Armet S. addressed to the person to be served at the notice address. Stat. See. L. 786 So.places the jurisdiction in a state of dormancy during which the trial court or clerk is without authority to enter a default. R. Entry ofDefault 1.2d 519 (Fla. Lett. Ltd. service may be made on any person whether the person is located inside or outside the state by certified or registered mail. 4th DCA 1984). 3. Comcast SCH Holdings. Campbell v.C. 744 So. v. Order of substitution must precede an adjudication of rights of parties. Wallace. 1121 (Fla. (a) Failure to effectuate service . Fla. 2d 178. 5th DCA 2004). Floyd v.(a) Substitute service may be made upon the obligor s appointed registered agent. 2d 1232 (Fla. (2011).

§ 521(d) was superseded by the Housing and Economic Recovery Act of 2008. C. Stat.S. Digicast New Media Group.040(a)(1).A.admission of every cause of action that is sufficiently well-pled to properly invoke the jurisdiction of the court and to give due process notice to the party against whom relief is sought. Rule 1. the original 90 day period will retake effect.121. 507 U. Fiera. 4. S. Plaintiff is entitled to entry of default if the defendant fails to file or serve any paper 20 days after service of process. 512 (1993).2. Conroy v. which expires on 12/31/12. Brightman. 3d DCA 2003). C. active duty reservists and guardsmen. 4th DCA 2006). (2011). S. Fla. U. there is an excellent resource on the ABA s website: http://apps. 511. applies to all military branches including Coast Guard. 837 So. Service Members Civil Relief Act of 2003 (formerly. § 2203.. P. 3. § 521 . Rule 12(a)(3). Civ. the Public Health Service and NOAA. For further details. v. Aniskoff. Fed.americanbar. except to contest the amount of unliquidated damages. A. (b) United States of America has 60 days to file under the provisions of 28 U. Donohue v. (2011).tolls proceedings during the period of time that the defendant is in the military service: note. P.S. Fla. Inc.C. Inc. there is no need for the service member to demonstrate hardship or prejudice based on military service. plaintiff must file an 29 . R. 50 App. R.Com. Active duty service member with notice of the foreclosure action may obtain a stay of the proceedings for a period of 9 months. § 2410(b). 2d 451. 939 So. 452 (Fla. 2d 1162. Civ.org/family/military/scrajudgesguidecklist. Legal effect of default . U. A.pdf (c) Determination of military status affidavit stating: to obtain default. Upon expiration. (a) State of Florida has 40 days in which to file or serve any paper in accordance with Section 48. 1164 (Fla. Default terminates the defending party s right to further defend. (b) Act precludes entry of default. Soldier s & Sailors Act) (a) Codified in 50 App.

Fla. Again.do (a) Non-military affidavit is valid for one year. § 733. 1993). R. or (2) plaintiff is unable to determine if the defendant is in the military service. Civ. Rule 1. Stat. Bank Nat l. Affidavits based on information and beliefare not in compliance. Plaintiff is required to serve the defendant with notice of the application for default. 50 App. C. (a) Section 65. Lloyd. C. (2011) maintains that final judgment after default may be entered by the 30 . § 521(b)(3). 1034 (Fla.dmdc. and affiant must state that the defendant is not in the armed forces. The best practice is appointment when unknown parties are joined and service effected through publication. 981 So. attest to the fact that inquiry was made of the Armed Forces. A.511(e). rendering resulting judgment void. Appointment of a Guardian ad Litem 1. (2011) provides that the court shall appoint a guardian ad litem for a minor or incompetent person not otherwise represented for the protection of the minor or incompetent person. A. The Fla.the court may require the plaintiff to file a bond prior to entry of judgment. P. (2011). Failure to notice defendant s attorney entry of subsequent default is invalid. S. 5. persons of unsound mind. Fla. Ass n. U. Defense Manpower certificate is gold standard at: https://www. or convicts are involved. Stat. Similarly. (d) Unknown military status . 2d DCA 2008). 50 App. Civ. 6. R.061(2). P. v.must be based on: personal knowledge. a guardian ad litem should be appointed to represent the estate of a deceased defendant or when it is unknown if the defendant is deceased. For example. S.S. U. § 521(b)(1). Defense Manpower Certificate is the gold standard.(1) defendant is not in military service. 2d 633. 634 (Fla.308. 621 So. (b) Rule 1.osd. U. Non-Military Affidavit required .210(b). (2011) states that a guardian ad litem shall not be appointed unless it affirmatively appears that the interest of minors. 2d 1025.mil/appj/scra/scraHome. Bar Re: Approval of Forms. Fla. Fla.

Fla. 5th DCA 1997). (2011). although it may also be authorized by association by-laws. 782 (Fla.Electro Mechanical Products. Post judgment. but no judgment may be entered against an infant or incompetent person unless represented by a guardian. Pay attention to Notice issues and where and how notice is given. (a) Section 718. 2d 38. association is entitled to the appointment of a receiver to collect the rent. 2. v. 2d 781. (b) Similarly. Ltd. If the parcel is rented or leased during the pendency of the foreclosure. (2011) governs homeowners associations. 2d DCA 1990). (a) This equitable prejudgment remedy must be exercised with caution as it is in derogation of the legal owner s fundamental right of possession of his property and only warranted if there is a showing that the secured property is being wasted or otherwise subject to serious risk of loss. The movant for appointment of a receiver for real property which does not qualify under the condominium or homeowners association statutesmust satisfy basic prerequisites. Appointment of a Receiver 1.court at any time. Great Western Bank. Id. These basic prerequisites are the same legal standards applicable to non-foreclosure proceedings. Alafaya Square Association. (c) Blanket motions for appointment of a receiver for multiple units prior to the filing of a foreclosure action do notmeet the requirements of either statutory provision. 41 (Fla. this Section provides that the court may require the parcel owner to pay a reasonable rent for the parcel. Stat. 556 So. appointment of a receiver for condominium and homeowners associations is governed by statute. Twinjay Chambers Partnership v.3085(1)(d). 700 So.116(6)(c). Fla. as injunctive relief. provides that the court in its discretion may require the resident condominium unit owner to pay a reasonable rental for the unit. Inc. 31 . Stat. During a foreclosure. Section 720. the homeowners association is entitled to the appointment of a receiver. During the pendency of the foreclosure action. the condominium Id. Suarez.

Knuth. (c) The party seeking appointment must show that there is a substantial likelihood that it will prevail on the merits at the conclusion of the case and must present sufficient proof that appointment of a receiver is warranted. DeSilva v.. 2d 40. 290 (Fla. DeSilva v. A receiver might be appropriate without notice and a hearing if the property is being diverted. Borona. Banc One Mortgage Corp.The plaintiff bears the burden of proof to establish the Delandro v. 700 So. Kraus-Anderson. 2d DCA 2010). P. Fla. Summary Final Judgment of Foreclosure 1.. 3d DCA. (b) In the absence of a showing that the property is being wasted or otherwise subject to serious risk of loss. 2d DCA 2010). appointment of a receiver is unjustified. 3d DCA 1976). 509 So. 2009 WL 2448160. Servicing.967 (Fla. outstanding discovery can preclude summary judgment as a matter of law. Pro. 186 (Fla. 2d 638 (Fla. destroyed or allowed to deteriorate or waste. 12. Keybank National Association v. (2011). Civ. dissipated. Seasons P ship 1 v. 2d 184. A receiver might be appropriate without notice and a hearing if the property is being diverted. Ltd. Burden of Proof . (d) A final prerequisite to appointment of a receiver is that the movant must post a bond. First Community Bank. 43 (Fla. 42 So. 3d DCA 1987). Mortgage nonexistence of disputed issues of material fact. 1966). 42 So. Boyd v. 2448161 (Fla. 324 So. Plaintiff must provide evidence which supports its right to judgment. 3d 285. First Community Bank.. destroyed or allowed to deteriorate or waste. 6062 (Fla.. s. Rule 1. Inc. Fla. 2d DCA 1997). 2. R. Am. 2d 966. Content of motion for summary judgment plaintiff should allege: 32 . Inc.610. 2d 6061. Follow the procedures under the temporary injunction rule. 1. 290 (Fla. for either the plaintiff or the receiver. Legal standard No genuine issue of material fact and movant is entitled to a Also.620(c).v. 2009). 3d DCA 1996). 3d 285. judgment. 674 So. 3. Aug. Talcott. Rules of Civ. Holl v. dissipated. 191 So.

2) plaintiff s status as owner. (b) Opposition materials and evidence supportive of a denial of a motion for summary judgment must be identified. and 7) address affirmative defenses. by extension. (1) Borrower s affidavit in opposition to summary judgment must be made on personal knowledge and must set forth facts. P.. 3d 1254. Inc. Commercial Industrial Park. Deutsche Bank Trust Co. affidavits to delay foreclosures may support 57. Assoc. holder (or representative). Civ. Warning: filing unsupported affirmative defenses or. 2d DCA 2010). Mack v. Notice of opposition must be mailed to the movant s attorney at least five days prior to the day of hearing or delivered no later than 5:00 P. LLC. Bank of New York. or establish that the defenses are insufficient as a matter of law.1) execution of note and mortgage. 801 (Fla. R. (2011). 4th DCA 1989). Filing of the Motion . (a) The filing of a forged document warrants disbarment. 3) date of default.510(a). Fla. Fla. 541 So. 30 So. supporting affidavits and notice of hearing must be served on a defendant at least (20) twenty days before the summary judgment hearing.510(c).49 So. TJCV Land Trust. P. if any. Hall. The Florida Bar v. 2011 not final) (b) The movant for summary judgment must factually refute or disprove the affirmative defenses raised. Americas. V.510(c). 1259 (Fla. Verizzo v. 3d 613. Rule 1.Alejandre v. Rule 1. 6) relief sought. (borrower s conclusory affidavit that he didn t owe the amount of money alleged by the bank insufficient)... US Bank Nat l. 4) notice of default and acceleration. Fla.105 sanctions. 616 (Fla. (2011). 770 PPR. 2010). 2d 800. M. 3d 976. 4th DCA June 8. The motion for summary judgment. mere conclusions are insufficient. 4th DCA 2010). 5) amount due and owing. Rule 1. (2011). (2) two business days prior to the day of the hearing on the summary judgment. P. R. Civ. (Attorney deliberately and intentionally engaged in felonious conduct by recording a fraudulent lease and agreement for sale). 977 (Fla. 33 . Civ. 28 So. 2011 WL 2200678 (Fla. see the newly decided case of Korte v. 4. R.at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.

3d 1202. the sworn and certified copies of the records must be attached. and borrower did not deny default. Affidavits in support of Summary Judgment Affidavits in support of the motion must be made based on personal knowledge and set forth facts that would be admissible in evidence. HillsboroughCounty. Ltd. 3d DCA 2006). Leal v. 5. Deutsche Bank Trust Company Americas. 546 So.. 4th DCA 2010). (2) principal balance. 2d DCA 1995). 3d 907. (3) interest (calculated from default up until the entry of judgment. Affidavit of indebtedness used to support summary judgment and signed by loan servicer secretary who had given testimony in a different foreclosure case in which the affiant lacked personal knowledge was insufficient to demonstrate fraud. Kirkman/Conroy. Requirement for motion for summary judgment . the amounts stated in the affidavit were correct. Freeman v. (c) Filing of cross motions is subject to the 20-day notice period. 936 So.44 So.due notice and a hearing. (best practice is to include per diem interest). Trust Co.1. 34 . 2d 1158 (Fla. (a) Affidavit of Indebtedness Must be signed by a custodian of business record with knowledge. the affiant attested to the amounts due and charges. Fla.Civ. 21 So. 3d DCA 2009). 908 (Fla. 4th DCA 2010). and demonstrate that the affiant is competent to testify on the matters presented. 1204 (Fla.. v. 46 So. 2d 1223 (Fla. Proof of mailing of notice of the final summary judgment hearing created presumption that notice of hearing was received. 32 (Fla. 5th DCA 1989). In general. Wizikowsji v.R. and the business records exception should be established.To the extent that the affiant relies on business records.510(e). 651 So. when the mortgage provides for automatic acceleration upon default. Deutsche Bank Nat l. 2d 31. THFN Realty Co.Pro. Blanco v. the plaintiff s affidavit itemizes: (1) property address. Kinas.3d 1288 (Fla.

643 So. Supreme Court had previously endorsed the lodestar method.references the actual time the attorney expended on the foreclosure file and references the actual hourly billable rate or the flat fee rate which the client has agreed to pay. 1150 (Fla.(4) late charges (pre-acceleration only). Rowe. 1st DCA 1994). (2) The hours may be reduced or enhanced in the discretion of the court. SC09-1579. 766 (Fla. Zumpf v. Nat l Bank v. depending on the novelty and difficulty of questions involved. 2d 1145. Fla. Inc. (7) hazard insurance premiums and taxes. 33(Fla. & Loan Ass n. (6) property inspections & appraisals. First Fed. but Florida Supreme Court Opinion No.996(a) (Final Summary Judgment of Foreclosure) of the Florida Rules of Civil Procedure to provide for the flat rate attorneys fee agreements common in the mortgage foreclosure industry. 2d 1074 (Fla. Fowler v. 4th DCA 2007).. 3d 764. Compensation Fund v. (3) and abstracting costs. the fee award will be reversed for a hearing unless there is an indication that the right to a hearing was waived. 1985). plaintiff is not required to keep With regard to 35 . 259 (Fla. 472 So.). Bankatlantic. Countrywide Home Loans. 589 So. unless specifically authorized in note in the event of acceleration and foreclosure.This affidavit details: (1) the filing fee. uncontested time. 2d 30. 1991). Feinstein v. Reasonable attorney fees sought by a mortgagee from a mortgagor generally are not liquidated damages and require a hearing. Sav. (c) Affidavit of attorney s time . 2d 255. (2) service of process. 43 So. (b) Affidavit of Costs . revised Form 1. (5) prepayment penalties unavailable in foreclosure actions. 961 So. Patient s Fla. 2d DCA 2010). Ashplant. (1) The Fla. absent an evidentiary hearing..

contemporaneous time records since the lender is contractually obligated to pay a flat fee for that time. Bar. Stat.065(2). Id.5(b)(1) Rules Regulating the Fla.Affidavit of attorney s fee must be signed by a practicing attorney not affiliated with the plaintiff s firm. (2011) provides that 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 the filing of the complaint Florida Patient s Compensation Fund v. The requirements of Rowe aremandatory and failure to make the requisite findings is reversible error. 472 So. An award of attorney fees must be supported by expert evidence. 292 (Fla. (1) Where there is a default judgment and the promissory note or mortgage contains a provision for an award of attorney fees. (d) Affidavit as to reasonableness of attorneys fee . and the experience and skill of the lawyer performing the service must be examined. v. the customary fee in the locality for legal services of a similar nature. Of these. Gonzalez. Home Insurance Co. (2) The judgment must contain findings as to the number of hours and the reasonable hourly rate. Id. 1985).at 1152. Affiant should reference and evaluate the attorney fee claim based on the eight factors set forth in Rule 4-1. Palmetto Federal Savings and Loan Association v. An award of attorneys fees must be supported by competent substantial evidence in the record and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation 36 . 3d DCA 1987). 2d 332 (Fla. 648 So. Section 702. relevant factors. Id. Rowe. attesting to the rate as reasonable and customary in the circuit. 2d 291. This statutory provision confirms that such fees constitute liquidated damages in any proceeding to enforce the mortgage. 2d 1145 (Fla. such as the time and labor required. 3d DCA 1995). Day. 512 So. Fla. Id.

they raise some new matter which defeats an otherwise apparently valid claim. the issue of ownership becomes an issue plaintiff must prove. 4th DCA 2009). Frost v. O Hanrahan. Genuine existence of material fact . but are asserted for the primary purpose of delaying entry of final judgment. 430 So. Legal sufficiency of defenses . 418 So. Plaintiff must either factually refute affirmative defenses or establish that they Wiggins are legally insufficient. 906 (Fla. Morroni v. Inc. McCollum. 3d 1288. v. 2d 311.. 976 So. 817 So. Manassas Investments Inc. Household Fin. 4th DCA 2010). Bank National Ass n. 3. 3d 905. but also other losses that a trial court finds resulted from improper delay. 44 So. This liability is not limited to the opposing party s attorney s fees. Protmay. Regions Bank. 2d 618. U. Homeside Lending. Affirmative Defenses 1. 2. Equally. 1289 (Fla. 2d 541. Corp. 4th DCA 6/8/11). Korte v.2011 WL 2200678 (Fla. v. Deutsche Bank Trust Company Americas.105 of the Florida Statutes is applicable in mortgage foreclosure cases to sanction defendants and/or their counsel for asserting defenses which they know or should know are not supported by material facts of the case. if the 37 . Affirmative defenses commonly raised: (a) Payment Where defendants alleged advance payments and plaintiff failed to refute this defense. 36 So. 3d 927928 (Fla. 2d DCA 2008). Stack v. 312 (Fla. 2d 1017. 3d DCA 1982) Affirmative defenses do not simply deny the facts of the opposing party s claim. III. 1st DCA 1983). 1019 (Fla. 620 (Fla. 2d 1080 (Fla. 4. Bliss v. Where the defendant denies that the party seeking foreclosure has an ownership interest in the mortgage.precludes entry of summary judgment. S. Alejandre v. Lizio v. 542 (Fla.Certainty is required when pleading affirmative defenses. plaintiff not entitled to summary judgment. Carmona. 903 So.involved. 15 So. Section 57. conclusions of law unsupported by allegations of ultimate fact are legally insufficient. 2d DCA 2005). 4th DCA 2010). 2d DCA 2002).

819 So. Campbell v. 2d 519. and the borrower alleges the defense of inaccurate accounting. 3d DCA 2010). 232 So. (Reversal of summary judgment based on lender s failure to provide the notice of acceleration pursuant to the contractual terms of the mortgage. 935 So. caused by the representation and reliance thereon. reliance on that representation. (c) Estoppel is usually based on: a representation as to a material fact that is contrary to a later-asserted position. 2d DCA 2003). Midland Mortgage Co. (Court dismissed foreclosure complaint where plaintiffs knew that some excusable oversight was the cause for non-payment. 2d 252. 2d 28. but due to misunderstanding or excusable neglect coupled with lender s conduct. 3d DCA 1960). includes a credit for unapplied funds without explanation). Lender was not estopped from foreclosing on note after borrower failed to pay the remaining principal balance on the note s maturity date. Citimortgage. 4th DCA 2003). and a change in position detrimental to the party claiming estoppel. Inc. 122 So. 619 (Fla. Also. despite contention that lender had acted contrary to its long-standing custom and practice of notifying guarantors when payments were due 38 . Harris v. 2d 498 (Fla. Werner. they must identify the misapplication of funds. Lieberbaum v.affidavit of indebtedness is inconclusive (for example. 29 (Fla. City of Winter Haven. 3d DCA 2006). 3d 189 (Fla. Seacoast Nat l Bank. 520 (Fla. Paragraph 22).. it is insufficient for the defendant to simply allege an erroneous application of payments. Jones v. 256 (Fla. Nat l. 4th DCA 2002). Summary judgment will be defeated if payment was attempted. Kanu v. Surfcomber Hotel Corp. Pointe Bank. 870 So. (b) Failure to comply with conditions precedent such as Plaintiff s failure to send the Notice of Default letter. then summary judgment should be denied. Walker v. Recovery Agency. 35 So. Talbott v. 55 (Fla.. 2d 52. contributed to the failure to pay.Failure to receive payoff information does not preclude summary judgment. 854 (Fla. 3d DCA 1970). 861 So. 2d 850. 30 So.Lazuran v. 3d 613. 4th DCA 2010).. said payment having been refused and subsequently deposited by defendants into the court registry). (defendant defeated city s foreclosure based on evidence presented which indicated that the city had agreed to stop fines for noncompliance with property code if homeowner hired a licensed contractor to make repairs).

Wells Fargo Home Mortgage. could not be overcome by defendant s claim of estoppel due to misapplication of non-escrow payments. 2010 WL 3927695 (Fla. However. 5th DCA 1981). (d) Waiver the knowing and intentional relinquishment of an existing right. 707 (Fla. Affirmative defenses must clearly 39 . Default predicated on defendant s failure to pay real estate taxes. 829 (Fla. 1065 (Fla. The Celebration Company. Lunn Woods v. Schiebe v. 2d 575 (Fla. 405 So. affirmative defenses that sound in waiver (and estoppel) present genuine issues of material fact which are inappropriate for summary judgment.. the lender has the right to elect to accelerate or not to accelerate after default. 5th DCA 2002). Co.common defense asserting waiver is the lenders acceptance of late payments. When properly pled. 822 So. 4th DCA 2010). not a device to nullify an expressly-agreed. 15 U. 43 So. Simon v. S. Failure to allege a specific element of fraud in a complaint is fatal when challenged by a motion to dismiss. fraud cannot form the basis for recovery of damages unless the damages directly arise from the fraud and are casually connected to the fraud. (1) Acceptance of late payments . 3d 897. Coral Reef Drive Land Development v. These must be pled with sufficient particularity.. Scarfo v. Ocean Bank. 1st DCA 1985). what.Elements of fraud must be pled using specific. 900 (Fla. Locke v. 577 So. 5th DCA 2004). Lowery. D. (e) Fraud . 2d 826. 2d 705. Peever. when and where of the fraud before access to discovery is granted. Bank of Am. Duke Realty Limited Partnership.See also. (2) Statement of opinion cannot form the basis for fraud. 883 So. Promissory estoppel is an equitable doctrine for the enforcement of agreements. Moreover. & Mfg. 3d 170. 10/4/10). (1) Movant alleging fraud must plead the who. 2d DCA 1991).and withdrawing funds from accounts. 172 (Fla.588 (Fla. Taylor v. 2d 581. 3d DCA 2010). Alonso v. written contractual term. S. 465 So. ultimate facts. §1635(e)(1). absent evidence that any such custom was ever established. C. 45 So. 2d 1064. Kenco Chem.

2d 1238. 769 (Fla. Bank of New York. (1) Affirmative defense of fraud in the inducement based on allegation that seller failed to disclose extensive termite damage resulted in reversal of foreclosure judgment. Supp. Brooks. 4th DCA 2003). but where in fact the ability of one party to negotiate fair terms and make an informed decision is undermined by the other party's fraudulent behavior.defined as situation where parties to a contract appear to negotiate freely. (Note that purchasers had first filed fraud in the inducement case and seller retaliated with foreclosure suit). v. D. do not constitute grounds for fraud. the appellate court opined in the Hinton case that fraud in the inducement was not barred by the economic loss rule. Mortgage Electronic Registration Systems. Countrywide Home Loans. or forbearance to enforce 40 .5th DCA 2001). Lineas Aereas Costarricenses. (e) Fraud in the inducement .03. and as such. (3) Party may not recover in fraud for an alleged oral misrepresentation which is adequately dealt with in a later contract. Collins v. advance of money. S. 1239 (Fla. S. Batmasian. A. HTP. 4th DCA 1992). (f) Usury defined by § 687. so they can t be the basis for fraud.) Matthys v. Hinton v. 1078 (Fla. 685 So. 11/10/09). 862 So. not just legal conclusions. 820 So. 2d 325 (Fla. 680 F. 2d 768. 2009 WL 3762632 (Fla. Ltd. 2d 1077. as a contract for the payment of interest upon any loan. (2011).. Fla. Stat. 1/5/10). D. S. 593 So. Thompson v. Inc. (Elements of fraud and false statements in loan application were intended to induce lender and not borrower. the mortgagors could not have relied on these falsifications as required to support the mortgagor s claim against mortgagee.. (4) Because mortgagors were not aware that mortgagee misrepresented their income on their loan application. 2d 1287.and concisely set out the essential facts of the fraud. Id. Statements about another s ability to make payments are opinions. 1996). line of credit. 1294 (Fla. Englezios v. Further.

532 ( Fla. (2011). Stat. v. TILA issues include: (1) Improper adjustments to interest rates (ARMS). 4th DCA 2001). not a genuine affirmative defense. 792 So. (h) Statute of limitations . North Ring Limited. 2275 West Corp. A. Fla. (j) Truth in Lending (TILA) violations Technical violations of TILA do not impose liability on lender or defeat foreclosure. Fla. Dailey v. or upon any obligation whatever. 2d 527. Chase Manhattan Mortgage Corp. C. 4th DCA 2007).Appellate court upheld summary judgment based on Defendant s failure to present any evidence as to the alleged forbearance agreement of prior servicer to delay foreclosure until the settlement of his personal injury case. If the loan exceeds $500. of Calif. If evidence of forbearance is submitted. 2d 726 (Fla. 979 So. 2d 1046.071(7).000 in amount or value. 15 U. Exception to TILA one year statute of limitations applies to defenses raised in foreclosure. (1) This is a limitation on judicial authority. 3d DCA 2008). Walker v. Inc. 191 (Fla. mortgage lien was no longer valid and enforceable under Section 95. American Bankers Life Assurance Co. of Fla. at a higher rate of interest than the equivalent of 18 percent per annum simple interest. 3d DCA 2005). 15 U. 759 So... v. WRJ Dev. Fla. it may defeat summary judgment. Midland Mortgage Co. 905 So. Fla. Leshin. 1047 (Fla. (g) Forbearance agreement . (2011). 1088 (Fla. A. then the applicable statutory section is § 687. § 1600. C. Stat.08. Bonifiglio v. 935 So. Banker s Trust Co. 41 . 2d 1087. (2011). Stat. A usurious contract is unenforceable according to the provisions of Section 687. (i) Failure to pay documentary stamps Section 201.the collection of any debt. 2d at 520. (2010) precludes enforcement of notes and mortgages absent the payment of documentary stamps. S.281(1)(a). S.Property owner successfully asserted that foreclosure filed five years after mortgage maturity date was barred by statute of limitations. 944 So. § 1640(e). 4th DCA 2000).. Stat.071. Kasket v... 2d 189.

2009). 4th DCA a subsequent action unless predicated upon separate. S. D. S. Id. Supp. B. Singleton v.To plead a FCCPA claim. 2d 1291. F. 1301 (Fla. 11/30/10). and a formulaic recitation of the elements of a cause of action to survive a motion to dismiss. 686 F. 797 So. Such as. (l) Fair Debt Collection Practices Act (FDCPA) and HAMP . 10/15/09). 15 U. 5th DCA 1999). payment of interest. 2004). 2d 15 (Fla. a party must allege knowledge or intent by the debt collectors in order to state a cause of action. D. JPMorgan Chase & Co.FDCPA applies only to debt collectors. was a debt collector. 42 . 1007 (Fla. (m) Florida Consumer Collection Practices Act (FCCPA) . A. 2d 296 (Fla. O Brien v. 2d 1004. 17 So. Bankers Trust Co. 882 So. DelCarpio. 844 (Fla. Great Western Bank.. 2d 146. Trust Bank. 153(Fla. (a) TILA-based right to rescission does not apply to mortgage transactions. S. D. Rescission relieves borrower only for Cintron v.. Id. Greymar Assoc. (3) TILA rescission for up to 3 years after the transaction for failure to make material disclosures to borrower. 727 So. (b) Wife s homestead interest in mortgaged property gives her right to TILA disclosure. C. 3d 843. There is no private right of action under Home Affordable Modification Program (HAMP). Wells Fargo Home Mortgage. the servicer. S. Smith. A pleading must contain more than labels and conclusions. 682 So. 12/18/09).. Additional cases: Limehouse v. Locke v. (mistake). 680 F. 1997). total payment and payment schedule. residential Infante v. Defendant failed to sufficiently plead that Wells Fargo.. Supp 2d 1298. § 1601166 (1994). Beach v. Must be within three years of closing. 4th DCA 2001). Written acknowledgement of receipt is only a rebuttable presumption. APR of loan. N. (k) Res judicata Foreclosure and acceleration based on the same default bars Gancedo v. 692 So. amount financed. S. 1303 (Fla. 2d DCA 1996).(2) Borrower must be given 2 copies of notice of rescission rights. Fed. different defaults. 2010 WL 4941456 (Fla. Reese v. Bank of America. 2d 616 (Fla..

Velletri v. 2d 549.(fraud. L. Nudel v. 2d 725.can preclude entry of summary judgment. 4th DCA 2010). 23d 1257 (11th Circ. (b) Without evidence to demonstrate the movant s status as the owner or holder of the note and mortgage. Nat l. 4th DCA 1999).Best practice is for judge to cancel the signed note upon entry of summary judgment. (Mortgage documents filed several days after entry of summary judgment were not part of the record at the time the summary judgment was granted. Biondo v. 305 F. Id. 3d 692. 43 . 4th DCA 2010). 3d DCA 2000). 52 So. different jurisdictions may or may not judgment hearing. such as origination fees can render a loan usurious). Perry v. Dixon. 550 (Fla. Loan Investors. 726 (Fla. 3d 187. recommend pre-hearing filing. 3d 1105. 192 (Fla. P. v.. 2d DCA 2010). Since the promissory note is negotiable. 2d 161 (Fla. 2. 743 So. 694 (Fla.. 44 So.. (Payments to third parties at closing. 5th DCA 2001). Summary Judgment Hearing 1. precluding summary judgment. U. (a) Failure to produce note . 46 So. (Real Estate Settlement Procedures Act (RESPA) violations. Copies are sufficient with the exception that the note must be reestablished. The tactic of repetitive attempts at disqualification of a judge cannot be used to achieve strategic advantage and/or frustrate the efficient function of the foreclosure division. Fairbanks Capital Corp. filed and served more than 20 days prior to the summary judgment hearing). Bank National Ass n. RICO and duress). and bank failed to comply with summary judgment rules requiring the documents to be authenticated. 1107 (Fla. Servedio v. Plaintiff must submit the original note and mortgage at or before the summary As a practical matter.. 2002). Powers. it must be surrendered in the foreclosure proceeding so that it does not remain in the stream of commerce. 888 So. 767 So.Heimmermann v. First Union Mortgage Corp. in the 11th Circuit. FSB. (usury). Joymar Assoc. genuine issues of material fact remain. Flagstar Bank. S. we require the original not be submitted at the summary judgment hearing.

33 (Fla. 47 So 2d 886. Court may award costs agreed at inception of contractual relationship. One 79th Street Estates Inc. (5) Check principal. 2d 1245. non-substantive matters. Final Judgment At final judgment. 44 . such as scheduling. Section 45. do not require disqualification. If interest (4) Amounts due and costs should match affidavits filed. Fla. American Investment Services. (6) Late fees pre-acceleration is recoverable.. rate & calculation of interest through date of judgment. (2010) governs the contents of the final judgment. Maw v.031. Civ. 643 So. Stat. losing its separate identity. has increased due to resets a daily interest rate should be indicated so you can verify it. & Loan Assoc. 2d DCA 1985). (2) Check for evidence of ownership of note.Exparte communications concerning purely administrative. 1st DCA 1994). Nemours Found. of Defuniak Springs. Final Judgment Form 1. 576 (Fla. Gauldin. First Fed. 5th DCA 1992). (award of costs governed by mortgage provision). 3d DCA 2010). R. 3. Sav. 463 So. (assessed costs consistent with mortgage provision rather than prevailing party statute). v. 1. Fowler v.996. (2010). v. 4. 601 So. costs must be reasonable. 2d 574. Checklist for Final Summary Judgment (a) Proposed Final Judgment: (1) Check service. (3) Check affidavits signed and correct case number/parties.Plaintiff s recovery limited to items pled in complaint or affidavit or based on a mortgage provision. Fla. 2. 1247 (Fla. Abinales. 889 (Fla. Id. P. defaults. the mortgage merges into the judgment. 2d 30. dropped parties. post acceleration is not. Amounts due .

3d DCA 2007). 5. 6. 2d 902.Correct forum is bankruptcy court. Maiello. § 702. 3d DCA 2009). 2010 WL 532812 (Fla. 601 So. Inc. 7. such as service of process should be reasonable. 951 So. 1077 (Fla. Motion for rehearing abuse of discretion to deny rehearing where multiple If summary judgment denied. (2011). 2d at 575. 17. 904 (Fla.031(1)(a). market rates. 3d DCA 45 . issues. Fla. Ross v. correspondence related to workout efforts.(7) All expenses and costs.01. BUT. 2d 1076. 639 So. including prepayment penalties and usury. the trial court loses jurisdiction of the case. Stat. 3d 943. After entry of final judgment and expiration of time to file a motion for rehearing or for a new trial. (9) Attorney fees must not exceed contract rate with client and be supported by an affidavit as to reasonableness. (11) Sale date may not be set in less than 20 days or more than 35 days. Damas. 459 So. § 702. 5th DCA 1994). Bankruptcy costs incurred to obtain stay relief recoverable. First Family Bank. Martinez v. (8) Beware . (2011). Items related to protection of security interest. 872 So.. Stat. unless parties agree. foreclosure action proceeds to trial on contested legal issues. 2d 435 (Fla. 2d 362. 363 (Fla. Court s discretion to deny recovery. 3d DCA Feb. Fla. Bonilla v. remain unresolved by the trial court. such as fencing and boarding up property are recoverable if reasonable. v. (a) Trial is before the court without a jury. Nemours. 945 (Fla.065(2).hidden charges & fees for default letters. 2010). Yale Mortgage Corporation. Beware add-ons for litigation fees make sure that they are not double-billing flat fee. 15 So. 2d DCA 2004). Fla. Attorney fee cannot exceed 3% of principal owed. (2011). § 45. (10) Bankruptcy fees generally not recoverable . JRBL Dev. Giacobbe. Stat. Dvorak v.

3d 825. Civ. 3d 989. Voluntary Dismissal Florida courts have consistently interpreted Rule 1. 51 So. P. such as deficiency judgments. R.540 must plead three elements: (1) the failure to file a responsive pleading was the result of excusable neglect. then it may recoup from the borrower the costs it paid for its voluntary dismissal. 2d 1155. v. 46 . Motion which did not plead due diligence was legally insufficient. (2011) must be proven by sworn statements or affidavits. 1157 (Fla. However. Fla. Deutsche Bank Trust Company Americas.540. Chase Bank USA NA. (court may assess attorney fees against a party who has an unsupportable claim (no ownership of note) or defense. 44 So. Id. (2011) as authorizing a trial court to award attorney s fees as costs to a defendant as a prevailing party when such award is provided for either by statute or contract between the parties. even though that party might ultimately prevail in the case on some other ground. and (3) the moving party acted with due diligence in seeking relief.. P. 38 So. 164 (Fla. 4th DCA 2010). Morgan Mortgage Acquisition Corp. Wells Fargo Bank. See also. J. 4th DCA 2007). Country Place Condominium Ass n. It is not necessary for there to be an adjudication on the merits in order to be entitled to fees as a prevailing party. 3d 162. if the mortgagee ultimately prevails in the refiled action. Halpern v. Valcarcel v. 2d DCA 2010). 991 (Fla. Houser. R. 949 So.1984). Excusable neglect supporting a motion for relief from judgment under Rule 1. Civ. 5th DCA 2010). 1180 (Fla. Id. unsworn assertions of excusable neglect are insufficient. (2) the moving party has a meritorious defense. Jidy. (a) The court rejects the view that a party taking a voluntary dismissal can do so for strategic reasons and thereby prevent the other party from being determined the prevailing party. Post Judgment Issues 1. A. 3d DCA 2010). v.420(d). Fla. Shepheard v. Exception: when the trial court reserves in the final judgment the jurisdiction of post judgment matters. (a) The movant under Rule 1. 3d 1176. N. P. 826 (Fla. 8. 58 So.

875 So. Inc. Key Development Properties. There is a distinction between a judgment that is void and one that is voidable. 880 So. 2d 1022. 966 So. Bank National Ass n. (2011) requires the fraud to be stated with particularity as the circumstances may permit. 326 (Fla. not just legal conclusions. 2. a Rule 1. 667 (Fla. Geer v.. 860 (Fla. 3d 858. 2d 957. 3. 963 (Fla. U. K. A judgment based on no personal jurisdiction over defendant is a void judgment. Vollmer v. The allegations of fraud. 1024 (Fla. Rule 1. Id. warrant an evidentiary hearing. 5th DCA 2010). The right to be heard includes the right to introduce evidence at a meaningful time and in a meaningful manner. 968 So. J. 2d DCA 2007). R. D.540 (b)(3) motion must specify the fraud. P. To entitle a movant to an evidentiary hearing.540(b)(3) motion must clearly and concisely set out the essential facts of the fraud.. but it cannot be challenged at any time as void under rules governing relief from judgment. Sterling Factors Corporation v. Court s 47 . even if constituting mistakes of law. Jacobsen. 42 So. 2d DCA 2007). 2d 658. Marchese Services. Henry v. Dimitrijevic. 2d 717. Trial court erred in denying motion for relief from judgment where there is a colorable claim for relief showing excusable neglect and a demonstration of meritorious defense. 4th DCA 2003). but the judgment has legal force and effect unless and until it is vacated. tactical errors. do not constitute excusable neglect sufficient to support vacating a judgment. Inc. 2d DCA 2004). Bock v. D. 4th DCA 2010). v. This means that a 1. 4. 2d DCA 2010). 3d 325. and the opportunity to cross-examine witnesses. while a voidable judgment is a judgment based on error in procedure that allows a party to have the judgment vacated. Id. 3d 557 (Fla. S. Id. Davenport v. . 720 (Fla. A voidable judgment can be challenged by motion for rehearing or appeal and may be the subject of collateral attack..120(b). Trial court s refusal to allow a mortgagor to participate in evidentiary hearing on post judgment motion violated mortgagor s procedural due process rights. Civ.Id. S. 6. An attorney s errors. 5. F. or judgmental mistakes. A court may relieve a party from final judgment for fraud. a void judgment is so defective that it is deemed to never to have had legal force and effect. 39 So. Henry. 36 So. P.

Boelter.540 motion to seek relief from dismissal. 1276 (Fla. VOSR Indus. including the assignment of bid at sale. 777 So. Holdings. 2d 10. v. Inc.. Fla. Martin Properties. 129 So. 3d DCA 1992). 2d DCA 2010). Eurobuilding Corp. 7... §45. Right to redeem is incident to every mortgage and can be assigned by anyone claiming under him. 2d 1275. (a) Right of redemption extends to holders of subordinate interests. 556 (Fla. 2d 428. Kossow. Mortgagor failed to establish in foreclosure action that he was adversely affected by mortgagee s voluntary dismissal. including costs of foreclosure and attorney fees. 4th DCA 2006). Inc. Pino v. Bank of New York Mellon. New Miami Shores Corp.. mortgagor may have actually benefitted from thestalling of the foreclosure. 2. 4th DCA 2001). v. 5th DCA 1996). 57 So. Boelter v. There is no statutory prohibition against the assignment. 3d DCA 1993). v. v. 3d 889. 2d 554. 4th DCA 2011). 625 So. LLC. Verneret v. 602 So. CSB Realty. Quinn Plumbing Co. 687 So. (2011). Marina Funding Group. 429 (Fla.. YBF Partners. 39 So. Inc. Inc. 694 (Fla. Wasko. 690. 3d 1282. To redeem. 4th DCA 2007). 3d DCA 2010). 1284 (Fla. where they are adversely affected. 48 . 1930).( pending oral argument on appeal before the Florida Supreme Court. Right of Redemption 1.) Defendant may use Rule 1. 919 So. 3d 950. Fla. (2008). 1100 (Fla.0315. 953 (Fla. Junior mortgage has an absolute right to redeem from senior mortgage. Inc. 950 So. mortgagor must pay the entire mortgage debt. 3. § 45. Foreclosure Advisors. Indian River Farms v. 2d 1096. Stat.0315. 45 So.failure to properly notice a party of a ruling may adversely affect that party s right to due process. (b) Court of equity may extend time to redeem. Stat. Perez v. Mortgagor may exercise his right of redemption at any time prior to the issuance of the certificate of sale. (a) Court approval is not needed to redeem.. 2d 1372 (Fla. Peninsula Prop. Saidi v. 13 (Fla. 892 (Fla.

031(1) (a). (Appellate court reversed trial court s continuance of sale based on compassion to homeowners claiming they needed additional time to sell the home). Movant must have reasons. The Fifth District Court ruled. for example claiming HAMP when the condo association has taken title to the property. 2. 3rd DCA 5/4/11 not final. Republic Federal Bank v. S. (2011). C. HAMP Review and loss mitigation do not constitute an agreement. § 959. 1276 (Fla. If the borrower is not living at the property. HAMP is questionable. 3d 875. They must be accurate and factual reasons. Ask counsel to make a personal representation as an officer of the court. 19 So. Lupica. 28 U. Dickson. Include language in the order indicating the court s rationale. Id. 49 . not canned standard form pleadings. Jade Winds Assoc. continuances and postponements are within the discretion of the trial court. Fla. Wells Fargo v. Court rejected asking for evidence of agreement. 3d 1053. Stat. 1054 (Fla. N. look at the service list. § 541. that an agreement had been reached. 3d DCA 2009). S.A. the federal government has one year to redeem the property.4. Doyle. Citibank. There should be no across the board policy. v.Look at language in motions. Judicial action based on benevolence or compassion constitutes an abuse of discretion. 4th DCA 1995). The statute applies unless agreed otherwise. §45. there was no basis for the trial court to reject Wells Fargo s counsels representation. as an officer of the court. even if you have a form order. But see. See. Chemical Mortgage v. 651 So. Federal right of redemption United States has 120 days following the foreclosure sale to redeem the property if its interest is based on an IRS tax lien. See also.Fla. Inc. 2d 1275. For any other interest. 11 U. 876 (Fla. Counsel alleged a loan modification agreement had been reached. 36 So. Cancellations. C. The statutorily proscribed timeframe for scheduling a sale is not less than 20 days or more than 35 days after the date of the order or judgment. Also. 5th DCA 2010) denial of lender s unopposed motion to cancel and subsequent motion to vacate sale reversed. Judicial Sale Scheduling the judicial sale 1.

§ 45. (a) Where fraud is alleged. 3d DCA 1965). The right of redemption for all parties is extinguished upon issuance of certificate of sale. 506 So. for 2 consecutive weeks in a The second preventing rescheduling. 3. publication shall be at least five days before the sale. (2011). 2d 197. 2d 1256 (Fla. (2011). Amount bid is conclusively presumed sufficient consideration. Ingorvaia v. 816 So. plus interest and costs through the date of sale. Stat. 1st DCA 2001).0315. Brown. anyone can bid. 994 (Fla. § 45.031(8). Judicial sale is public. Judicial sale procedure 1. 438 (Fla. 171 So. 2d DCA 2002). Fla. Property is sold to the highest bidder.Error not to cancel sale and reschedule where plaintiff did not receive bidding instructions on a federal-guaranteedmortgage. Richardson v. (a) Notice must include: property description.031(2). Stat. Fla. (b) Defective notice can constitute grounds to set aside sale. 2d 435. 3d DCA 2006). Suggestion: no we live in publication of general circulation. this case found extraordinary circumstances extraordinary times. 50 . Heilman v. § 45. (2011).031(1). trial court was required to conduct an evidentiary hearing before entering the order denying motion to vacate and set aside order allowing sale of real property. Suburban Coastal Corp. Certificate of sale 1. Phillips. 941 So. time and place of sale. Plaintiff is entitled to a credit bid in the amount due under final judgment. Notice of sale must be published once a week. 2. (2011). 2d 993. §45. Seal v. 198 (Fla. clerk s name and a statement that sale will be conducted in accordance with final judgment. Upon sale completion . 801 So.certificate of sale must be served on all parties not defaulted. Robinson v. Fla. 2d 1088 (Fla. Stat. However.. 4th DCA 1987). Notice of sale 1. Chase Manhattan Bank. case style. Stat. Horton. Fla.

including third party purchasers. LLC. Mesmer. Fed. 45. Shlishey the Best v. Objection to sale 1. Stat. documentary stamps should have been paid). 2d 913. Freddie Mac. of Revenue. (d) Exempt governmental agencies.) (b) Assignment prior to foreclosure sale . Dept. Fla. Sept.02(9). Id. 1961 Op.031(8). Dept. Crescent Miami Center. (a) Assignment of successful bid at foreclosure sale . (appellate court reversed sale 51 . Gen. 14 So. § within judicial discretion. The court may hold a hearing Hearing must be noticed to everyone.holder of a mortgage foreclosure judgment that needs to transfer title to a different entity and anticipates that the new entity would be the highest bidder. 985 So.. 2d 611.Fla. Citifinancial Equity Services. (2011). Code Rule 12B-4. v. v. (based on assignment of interest and tender of payment.013(3) provides that the tax is also applicable to the certificate of title issued by the clerk of court to the holder of the successful foreclosure bid.2. 3d 1271 (Fla. Stat. which do not pay documentary stamps include: Fannie Mae. Admin. (Transfer of unencumbered realty between a grantor and whollyowned grantee. 1st DCA 1977). 2005).014(9)-(11). Fla. (Rule 12B-4.013(25). 1961. (c) Documentary stamps are due only if consideration or an exchange of value takes place. 4th DCA 2008). Long Beach Mortgage Corp.is a transfer of an interest in realty subject to the documentary stamp tax. 2. resulting in a double stamp tax if the bid is assigned and the assignee receives the certificate of title. Inc. Admin. should assign prior to the foreclosure sale to avoid double tax. 2d 384. 386 (Fla. 1. 614 (Fla. The amount of tax is based on the highest and best bid at the foreclosure sale. Code Rules 12B-4. 903 So. §201. 918 (Fla. Fla. Fla. 061137. of Revenue v. not subject to documentary stamp tax). absent consideration and a purchaser. 2d DCA 2009). Documentary stamps must be paid on the sale. Atty. (2011). Bebble. Court has broad discretion to set aside sale. Home Administration and the Veteran s Administration. 345 So. Any party may file a verified objection to the amount of bid within 10 days.

Inc. Countrywide Home Loans. Stat. GRP Fin. Wells Fargo Fin.. Fla. (2011). A. Inter Ser. 2d 575. S. Arlt v. Mody v. (c) Sale may be set aside if plaintiff misses sale.. U. Inc. 884 So. 1017 (Fla. based on appropriate showing. Mere inadequacy of price is not enough. 38 (Fla. & Development. 2d 674. 190 So. Inc. Buchanan. REO Properties Corp. 801 So. (untimely motion filed 60 days following the sale). 853 (Fla. Ryan v. 2d 1016. 2d DCA 2006). S. 448 (Fla.. Bjeljac. Blue Star Invs. 4th DCA 2006).. 676 (Fla. Inc. Inc. 2d DCA 2004). Bank National Ass n. 2d 218 (Fla. 3d 851. v. Action Realty & Invs. Binder. System Fla. 3. 52 . 890 So. (a) Plaintiff s delay in providing payoff information cannot be sole basis for setting aside sale. 2d DCA 1999). 930 So. 2d 362. Test: sale may be set aside if: (1) bid was grossly or startlingly inadequate. a mortgagor s lost redemptive rights temporarily revest. Grandison.. v. v. v. 574 (Fla. 5th DCA 2010). 7453 So. 43 So. Maiello. because of inadvertence or mistake. If sale vacated mortgage and lien relieved with all effects from foreclosure and returned to their original status. 2d DCA 2004)... (d) Court may refuse to set aside sale where objection is beyond statutory period. 2d 446. 4th DCA 2001). 577 (Fla. and (2) inadequacy of bid resulted from some mistake.unilateral mistake resulted in outrageous windfall to buyer who made de minimis bid). 872 So. The sufficiency of mistake is shown if the owner is deprived of an opportunity to bid at the sale when. 2d 383 (Fla.. Calif. 3d DCA 1999). v. The court may consider a settlement agreement in considering whether to vacate a sale. U. Johnson. an attorney who was to represent him there for that purpose was not present. fraud. Bank. or other irregularity of sale. (b) Stranger to foreclosure action does not have standing to complain of defects in the absence of fraud. Services Corp. 946 So. JRBL Development. 3d DCA 2004). v.08. YEMC Const. Burden on party seeking to vacate sale. 2d 572. v. 363 (Fla. (a) Upon readvertisement and resale. Inc. 2d 36. Sale vacated 1. Inc. §702. 747 So. Fed. 1960).

4th DCA 2005). 3. P. 263 (Fla. N. 42 So. such as omitted parties. Right of possession (a) Purchaser has a right to possess the property . Quinn. 2d at 694. 43 So. 2. (b) Foreclosure is void if titleholder omitted. A. (a) Equitable lien or equitable subrogation to position of prior mortgagee was necessary for mortgagee that paid off prior mortgage after mortgagors sold the property and received it back by allegedly fraudulent quitclaim deed. even if mortgagee knew of purchaser s claim that the quitclaim deed was a forgery. Velazquez. (2011) 53 .. Title passes to the purchaser subject to parties whose interests were not extinguished by foreclosure. 895 So. 43 So. of Calif. (b) Vendor who took back a third mortgage against the property was prejudiced by the failure of a subsequent mortgage in connection with a second sale of the property. 3d at 83. Tribeca Lending Corporation v.. Fla. 3d 258. Rule 1. provided the interest holder was properly joined in the foreclosure. purchaser was not entitled to windfall and purchaser s claim was subordinate to that of prior mortgage. 2d 1120. 4th DCA 2010). 84 (Fla. Velazquez v. 1121 (Fla. Bankers Trust Co. mortgagee had clean hands. Civ. Priorities and equitable subrogation Equitable subrogation is not allowed if it works any injustice to the rights of others. and thus assignee of such subsequent mortgage was not entitled to be equitably subrogated to the priority of the original first and second mortgages.Post Sale Issues Certificate of title 1. 129 So. R. (a) Plaintiff may reforeclose or sue to compel an omitted junior lienholder to redeem within a reasonable time.580. 3d DCA 2010). No objections to sale Sale is confirmed by the Clerk s issuance of the certificate of title to purchaser. Inc. 3d 82.upon the issuance of the certificate of title. (b) Right of possession enforced through writ of possession. Serrano. Real Estate Depot. England v.

the Federal Home Loan Mortgage Corporation or a financial institution insured by the Federal Government.. 111-22. Stockton. (c) Best practice is to require notice and a hearing before issuance of a writ. (See following section) (d) At hearing. 2602). 549 (Fla. R. 3. Federal legislation. Three prerequisites must be satisfied to qualify as a bona fide tenant under the new Act: 54 . (1) Protecting Tenants at Foreclosure Act of 2009 provides for a 90 day preeviction notice applicable to bona fide tenants. the originating lender must be the Federal National Mortgage Association (FNMA). Summary writ of possession procedure: (a) Purchaser of property moves for writ of possession. Whatley. (e) The order for writ of possession is executed by the sheriff and personal property removed to the property line. judge orders immediate issuance of writ of possession unless a person in possession raises defenses which warrant the issuance of a writ of possession for a date certain. S. Protecting Tenants at Foreclosure Act of 2009 1. Redding v. 488 So. 4173. the Government National Mortgage Association (GNMA). Davin & Co. L. 5th DCA 1986). the Dodd-Frank Wall Street Reform and Consumer Protection Act. C. 2d 548. provides for a nationwide 90 day pre-eviction notice requirement for bona fide tenants in foreclosed properties. The application of the new law is restricted to any dwelling or residential property that is being foreclosed under a federally-related mortgage loan as defined by Section 3 of the Real Estate Settlement Procedures Act of 1974 (12 U. 2. which became law on July 21. 2010. known as Senate Bill 896.4. (b) The writ can be issued against any party who had actual or constructive knowledge of the foreclosure proceedings and adjudication. P. The provisions of the original bill were extended under H. In short.

The PTFA sunsets on December 31. (a) The exception here is if the new owner wants to occupy the property. in which case he must give 90 days written notice. The exception is if the buyer intends to occupy the property as a primary residence. Fla. The Extension and Clarification of the PTFA defines the notice of foreclosure as the date on which the complete title is transferred to a successor entity at the end of the foreclosure proceedings. The buyer or successor in interest after foreclosure sale must provide bona fide tenants: (a) With leases the right to occupy the property until the expiration of the lease term. (b) 5. Surplus . 2009. and The lease or tenancy requires the receipt of rent that is not substantially lower than the fair market rent for the property. Without leases the new buyer must give the tenant 90 days written notice prior to lease termination. 2014. then he must give the tenant 90 days written notice.032(1)(c). Tenants whom are Section 8 voucher participants are entitled to similar protections. 4. Fla. Stat. Disbursement of Sale Proceeds Surplus 1. (2011).the remaining funds after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements. the new owner must send the 90 day notice. The buyer assumes the interest of the prior owner and the Section 8 lease contract. 7. § 45. 55 . As such. Any notice sent prior to the issuance of the certificate of title is not in compliance with the PTFA.031. This provisions of the new law went into effect on May 20. (2011).(1) (2) (3) The tenant cannot be the mortgagor or a member of his immediate family. The buyer cannot terminate the lease in the absence of good cause. 6. The tenancy must be an arms length transaction. when the certificate of title is issued. Stat. Disbursement of surplus funds is governed by Section 45.

519 So. Citibank v. Stewart. Thomas v. Edgehill. 2d 346. Household Fin. 790 (Fla. Keenan. 3d DCA 2005). 1932). Property Ventures. Inc.. 1121 (Fla. Golindano v. A. 140 So. 3d DCA Oct. 52 (Fla. (a) Default does not waive lienholder s rights to surplus funds. 4th DCA 2005). (b) New service of process on defendant was not required for deficiency judgment where personal jurisdiction had been originally conferred by service of foreclosure complaint. 2d 1139. v. Suarez v. (b) A senior lienholder is not entitled to share in surplus funds. Inc. Bank of Am. 2d 3. 883 So. 347 (Fla. Wells Fargo Bank. (c) Entitlement to balance of surplus after payment of priority interests payable to the record owner as of the date of the filing of the lis pendens. 2009 WL 3271350(Fla. The granting of a deficiency judgment is the rule rather than the exception. of America. The law contemplates a continuance of 56 . 4th DCA 2004). A. 3d DCA 2005). App. 1140 (Fla. (a) Deficiency judgment not allowable if based on constructive service of process.Bank of Florida in South Florida v. (senior lienholder liens unaffected. 2d 300. 2. N. 2d 614 (Fla. Hendricks. 2d DCA Oct. 1974). Fortenberry. 913 So. App. 615. Inc. Mandell v. First Bank. Premier Capital. It is the duty of the court to prioritize the interests of the competing junior lien holders and the amounts due each. A junior lienholder has priority over the property holder for surplus funds. 14. PNC Mortgage Corp. 3d DCA 1988). A deficiency can be obtained only if a request for that relief is made in the pleadings and if personal jurisdiction has been obtained over the defendant or defendants against whom the deficiency is sought. 718 So.. 2d 51. 2d 1117. 14. Entitlement to surplus is determined by priority. 301 (Fla. Garcia v. in order of time in which they became liens. L. Id.. 290 So. Deficiency is the difference between the fair market value of the security received and the amount of the debt. v. 906 So. Deficiency Judgment 1.2. 2009 WL 3270846 (Fla. 2009). D. Grace v.. 906 So. 2d DCA 1998). improper party to junior lienholder foreclosure). Services. 2009). 6 (Fla.

McCollem. 642 So.. 4. 5th DCA 1981). Jordan. 2d 343. 2d 878 (Fla. Nuzum. Eurogest. Fla. (b) The formula to calculate a deficiency judgment is the final judgment of foreclosure total debt minus the fair market value of the property. 129 (Fla. See also. 2d 609. 906 So. The court needs to hold an evidentiary hearing. Drew Equipment Company. The amount of deficiency is determined at the time of the foreclosure sale. 610 (Fla. Flagship State Bank of Jacksonville v. § 702. Thomas. 2d 1117 (Fla. 392 So. 695 So. 2d DCA 1999). 187 So. 2d 661. Larsen v. Thomas. Farah v. 2d at 1141. 904 (Fla. 3d DCA 1985). 471 So. 5th DCA 1996). 2d 903. (2011). 47 So. Premier Financial Services. The court can enter a default judgment provided the defendant was properly noticed. 2d at 1140. (Fla. Estepa v. 3d DCA 1966). Chrestensen v. Merrill v. Chidnese v. Inc.06. Savings of Florida. Stat. Burden: The secured party has the burden to prove that the fair market value of the collateral is less than the amount of the debt. (c) The amount paid by a mortgage assignee for a debt is "legally irrelevant" to the issue of whether the assignee is entitled to a deficiency award after a foreclosure sale.the proceedings for entry of a deficiency judgment as a means of avoiding the expense and inconvenience of an additional suit at law to obtain the balance of the obligation owed by a debtor. Kelly. v. Morgan v. Century Group. The amount bid at foreclosure sale is not conclusive evidence of the property s market value. (a) The appraisal determining the fair market value must be properly admitted into evidence and be based on the sale date. 57 . Semlar v. 4th DCA 2005). Allocca. Trial court has discretion to enter deficiency decree. 3. 3d DCA 1994). 4. 678 So. (a) The exercise of discretion in denial of a deficiency decree must be supported by disclosed equitable considerations which constitute sound and sufficient reasons for such action. 541 So 2d 1369. 1370 (Fla. Inc. Id. 906 So. 4th DCA 1989). 3d DCA 2010). 906 So. 3d 850 (Fla. A cause of action for deficiency cannot accrue until after entry of final judgment and a sale of the assets to be applied to the satisfaction of the judgment. 724 So. 2d 128. 345 (Fla. Iberia Bank.

(2011). Section 702.. R. 42 So. the deficiency claim could be barred upon appropriate motion by the defendant under Rule 1. v. 2d at 878. Bar-Or. v.However. 2d at 878. 4th DCA 1968). new or additional service of process on defendant is not required. 2d DCA 1979). is not res judicata so as to bar an action for deficiency. Ballance.Thunderbird. (a) No reservation of jurisdiction in the final judgment . the defendant has the right to 58 . 2d 1353. Co. Bank of Fla. LLC v. In a separate action. (b) The lender can file a separate action for post-foreclosure deficiency. 211 So. 566 So. 3d 848 850 (Fla. Reservation of jurisdiction in the final judgment of foreclosure If jurisdiction is reserved. Fla. 2d 738. v.The motion and the notice of hearing must be sent to the attorney of record for the mortgagor. Frumkes v. Civ. 678 So. 2d DCA 2010). (court held that introduction of the certificate of sale from the foreclosure sale showing that the bid amount at the foreclosure sale was less than the amount of the debt shifted the burden to the mortgagee to go forward with other evidence concerning the fair market value of the property. 636 (Fla. 875 (Fla. 6. 2d 1296. P.. 4th DCA 1986). 3d DCA 1993). 938 (Fla. 613 So. 173 So. 376 So. Estepa. Weit. Frumkes. 2d 873. Mortgage Guarantee Corp. the Third District Court has held that the burden is on the mortgagor resisting a deficiency judgment to demonstrate that the mortgagee obtained property in foreclosure worth more than the bid price at the foreclosure sale. However. If untimely. Republic Bank. 4th DCA 1997).420(e). 42 (Fla. Great American Ins. Homes. 3d DCA 1965). Id. Estepa 678 So..Addison Mortgage Co. v. 1299 (Fla. Fla.2d 936. 173 at 740. Inc.motion for deficiency must be made within ten (10) days of issuance of title.2d 104 (Fla. NCNB Nat l.. as distinguished from equitable grounds. Klondike. (defaulted defendant entitled to notice of deficiency hearing). 1995). See also. 1st DCA 1990). Pyramid Corp. Ltd. 5. Stat (2011). Blair.)See also. the motion for deficiency must be timely filed. Frohman v. 740 (Fla. 2d 633. 497 So. 1355 (Fla. Eagle s Crest. Denial of deficiency decree in foreclosure suit for jurisdictional reasons. 660 So.06. Inc.. Steketee v. 2d 41. (Court did not abuse its discretion in rejecting expert s discounting valuation of property).

01(2). 336 So. Specifically. Section 55. 1250 (Fla. in which an in remjudgment is sought. 2d 153..11. if known. 1st DCA 1986). Chrestensen. when the mortgagee becomes the purchaser at foreclosure sale. (b) Section 95. 480 So. and thus the statute of limitations does not begin to run. abrogated on other grounds.132 So.06. Fla. 906 So. (2011) mandates that final judgments in a separate action for deficiency contain the address and social security number of the judgment debtor. 2d at 345. Atlantic Bank of St. Nagelbush. 553 So.Barnes v. Bradberry v. 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. Statute of limitations (a) A deficiency judgment or decree is barred when an action on the debt secured by the mortgage is barred. Stat. (no jury trial right within foreclosure action). 2d 1248. 880 (Fla.demand a trial by jury. Fla. (2011) purchase money mortgage is being foreclosed. 2d 189(Fla. 8. until the final judgment of foreclosure and subsequent foreclosure sale.. 2d 879. includes language that impairs the entitlement to a deficiency judgment with respect to a purchase money mortgage. (c) A cause of action for deficiency does not accrue. There are statutory limitationsimposed on a deficiency judgment when a Section 702. Fla. This requirement is not imposed in a mortgage foreclosure action. 1931). Stat. (a) One Florida court ruled that the "all important distinction" in the case was that "the purchaser at the foreclosure sale was not the mortgagee but. 488 So. l Bank of Jacksonville. (2011) imposes a five-year statute of limitations for a foreclosure deficiency judgment. 3d DCA 1989). Stat. Prine. 2d 464. See also. this statutory limitation provides: the complainant shall also have the right to sue at common law to recover such deficiency. 7. Taylor v. 1st DCA 1976). 156 (Fla. 1st DCA 1985). United Postal Savings Ass n v. Hobbs v. Augustine. an utter 59 . EscambiaCounty Employees Credit Union. Florida First Nat. 465 (Fla.

Bankruptcy 1. 11 U. S. Lloyd v. 11 U. 2. or upon dismissal of the bankruptcy case." a third party purchaser. 4. §362 enjoins proceedings against the debtor and against property of the bankruptcy estate. unless good faith is demonstrated. C. warranting reversal of the trial court s denial of deficiency judgment. (b) The third filing within one year of dismissal of the second bankruptcy case. Debtor s discharge in bankruptcy only protects the subject property to the extent that it is part of the bankruptcy estate. Stat. 11 or 13 automatically terminates 30 days after the second filing. § 362(c)(3). C. The automatic stay provisions of 11 U.10.stranger to the parties. 60 . 399 So. Foreclosure cannot proceed until relief from automatic stay is obtained or otherwise terminated. 45 So. (a) The automatic stay in a second case filed within one year of dismissal of a prior Chapter 7. Cannon. § 541.The Clerk shall return sums deposited over and above the five percent mandated by law. the subject real property must be listed in the bankruptcy schedules as part of the estate. S. If property ceases to be property of the bankruptcy estate. STL Realty. 3. 2d 1095. C.. 3d DCA 2010). (c) Multiple bankruptcy filings where the bankruptcy court has determined that the debtor has attempted to delay. Foreclosure cannot proceed until the automatic stay is lifted or terminated. Belle Plaza Condominium Ass n. LLC v. 11 U. the stay is terminated. 1st DCA 1981). (2011). hinder or defraud a creditor may result in the imposition of an order for relief from stay in subsequent cases over a two year period. §362(d)(4). C. Fla. 1096 (Fla. 3d 972 (Fla. Enacted by § 702. lacks entitlement to the automatic stay and any party in interest may request an order confirming the inapplicability of the automatic stay. Florida s Expedited Foreclosure Statute 1. S. (a) To apply. S. Disbursement of Excess Bid Fees .

(d) Notice of Sale requires vacating the sale and subsequent resale of property. An error in the legal description of the deed requires the joinder of the original parties as necessary parties to the reformation proceedings. General Electric Credit Corp. 463 (Fla. Fla.2. R. Bank of America. P. from the usual foreclosure by the order to show cause). 2d 838. 1911). 56 So. the mortgage must be reformed. Upon filing of verified complaint. (b) Complaint and lis pendens (c) Judgment requires amendment. 356 So. 566 So. Rule 1. due to limitations: (a) Statute does not foreclose junior liens. Id. 3d DCA 1978). LPP Mortgage Ltd. 840 (Fla. Chanrai Inv. v. (b) Procedures differ as to residential and commercial properties. Inc.540 (a). Fisher v. 559. (a) The failure to file defenses or to appear at the showcause hearing presumptively constitutes conduct that clearly shows that the defendant has relinquished the right to be heard. plaintiff moves for immediate review of (These complaints are easily distinguishable foreclosure by an order to show cause. For example.When a mortgage misdescribes the legal description of the property intended to be mortgaged.. the advertisement and deed. an incorrect judgment amount which omitted the undisputed payment of real estate taxes could be amended. but if the mistake has been carried into the decree of foreclosure. 61 . 563 (Fla. 3d DCA 2002). Hyte Development Corp.. 5th DCA 1990). Common Procedural Errors 1. a judgment on the note or a deficiency judgment cannot be entered under the show cause procedure.. Villamil. v. (2010) governs. Not the standard practice among foreclosure practitioners. the mistake may be corrected by a proper proceeding before judicial foreclosure. Incorrect legal description contained in the: (a) Original mortgage requires a count for reformation. 2d 462. 2d 1254 (Fla. Clement. Civ. v. 826 So. and (c) Statute only provides for entry of an in rem judgment. 3.

168 (Fla. Civ. 36 So. faulty assignments of bid or errors in vesting title instructions. (1) An error in the certificate of title which originates in the mortgage and is repeated in the deed and notice of sale requires the cancellation of the certificate of title and setting aside of the final judgment. Repayment Plan: Agreement between the parties whereby the homeowner One 79th repays the regularly scheduled monthly payments. 3d at 888. Barnett Bank of LeeCounty. 62 . Brown v.(e) Certificate of title a genuine scrivener s error in the certificate of title can be amended.47 So. there is no statutory basis for the court to direct the clerk to amend the certificate of title based on post judgment transfers of title. Mortgage Workout Options 1.) Due process issues concerning the mobile home required the vacating of the sale and judgment. P. Reinstatement: Repayment of the total amount in default or payments behind and restoration to current status on the note and mortgage. Forbearance: The temporary reduction or suspension of mortgage payments. (For example. 4th DCA 2010). 705 So. but overlooked throughout the pleadings. Clerical mistakes referred to by Rule 1. (Reinstatement after the entry of final judgment by definition anticipating the vacating of judgment and lawsuit dismissal. are only errors or mistakes arising from accidental slip or omission. 2d DCA 1998). plus an additional amount over time to reduce arrears. 2d 115 (Fla. Street Estates. However. R. 3. before mortgage could be reformed to correct inaccurate legal description. judgment and notice of sale.) 2. Canady-Brown. 3d 166. Lucas v. cannot be the amended in the certificate of title.Reinstatement returns a mortgage to its pre-default status. 4. F. plaintiff s omission of a mobile home and its vehicle identification number (VIN) included in the mortgage legal description. and not error or mistakes in the substance of what is decided by the judgment or order.540(a). Loan Modification: Agreement between the parties whereby one or more of the mortgage terms are permanently changed.

6. (1) Formerly. However. may be forgiven by the lender. (the difference between the sale price of the property and mortgage balance. (a) If the lender agrees to the short sale. 2d 455. the deficiency).5. Short Sale: Sale of real property for less than the total amount owed on the note and mortgage. 186 F. 1950). 459 (1st Cir. federal legislation has temporarily suspended imputation of income upon the cancellation of debt. the remaining portion of the mortgage debt. the amount of debt forgiven was considered income imputed to the seller and taxable as a capital gain by the IRS. Parker Delaney. Revised 6/17/11 63 . Deed-in-lieu of Foreclosure: The homeowner s voluntary transfer of the home s title in exchange for the lender s agreement not to file a foreclosure action.

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