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Foreclosure by Nicole Bercume: Statutes

Foreclosure Research Guide

Quick Facts Florida Florida Law

Quick Facts

  • Judicial Foreclosure Available:                Yes
  • Non-Judicial Foreclosure Available:       No
  • Primary Security Instruments:                   Mortgage
  • Timeline:                                                       180 days
  • Right of Redemption:                                 Yes
  • Deficiency Judgments Allowed:               Yes

In Florida, all mortgages are foreclosed in equity. In a mortgage foreclosure action, the court severs, for separate trial, all counterclaims against the foreclosing lender. The foreclosure claim shall, if tried, be tried to the court without a jury.

The court order of foreclosure will specify how the foreclosure must take place, and the foreclosure must take place on those terms. Whenever a legal advertisement, publication, or notice relating to a foreclosure proceeding is required to be placed in a newspaper, it is the responsibility of the lender or their representative to place such advertisement, publication, or notice.

Equitable Right of Redemption ends at the foreclosure sale (or at another time specified by the courts, but this rarely happens). There is a period of time after the sale that "the court reviews the sale to ensure a fair price has been paid."  Basically, this period of time allows parties to object to the sale on the basis that proper procedures were not followed or collusion existed between the bidders, for example.  This period is usually 10 days, after which the Certificate of Sale is filed and title passes, if the sale is confirmed.  If the sale is not confirmed, another sale is ordered.  (Reference F.S. Chapter 702)

The lender may sue to obtain a deficiency judgment in Florida.

Right of Redemption

45.0315 Right of Redemption

At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor's indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure, or if no judgment, order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelerate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney's fees of the creditor. Otherwise, there is no right of redemption.

Fla. Stat. Ann. § 45.0315 (West)

Chapter 702

Florida Statute on mortgage foreclosures, the online West version and Florida statute book. 

  • Chapter 702. Foreclosure of Mortgages nad Statutory Liens.
  • West's F.S.A. T. XL, Ch. 702, Refs & Annos

702.01 Equity, was held unconstitutional by Haven Fed. Sav. & Loan Ass'n v. Kirian,  legislature has NOT granted mortgage lenders a substantive right to foreclose on a defaulted mortgage undelayed by counterclaims.  A seperate trial may be ordered of any counterclaims. 

  • Kirian contended that, because section 702.01 conflicted with rule 1.270(b), it unconstitutionally encroached upon this Court's exclusive power to regulate matters of practice and procedure in all courts. See art. V, § 2(a), Fla. Const. Kirian further contended that the trial court improperly struck his affirmative defenses.
  • The district court agreed and reversed the trial court's decision. The court held that section 702.01, to the extent it conflicts with rule 1.270(b), unconstitutionally infringes upon the power of this Court to regulate matters of practice and procedure. The court further held that the trial court erred when it struck Kirian's affirmative defenses and granted summary judgment. We agree on both points.
  • In reaching our decision, we reject Haven Federal's argument that the legislature has granted mortgage lenders a substantive right to foreclose on a defaulted mortgage undelayed by counterclaims. To support its argument, Haven Federal relies upon VanBibber v. Hartford Accident & Idemnity Insurance Co., 439 So.2d 880 (Fla.1983), wherein this Court held that a statute precluding joinder of insurance companies in litigation against their insureds was substantive because of the legislature's long and continuing interest in the insurance area and its policy determination that the statute was in the public's best interest. Haven Federal asserts that section 702.01 reflects the legislature's intent to provide greater legal protection to commercial mortgage lenders and is therefore substantive in nature. We disagree.
  • We do not interpret the legislative history of the pertinent amendments to section 702.01 to show that the legislature clearly intended to grant lenders a substantive right to foreclose mortgages undelayed by counterclaims. The amendments were part of a comprehensive revision of laws addressing difficulties lenders encountered in enforcing assignment of rents provisions in mortgage contracts. Amending section 702.01 to require severance of counterclaims in foreclosure actions was merely an ancillary measure in addressing the assignment of rents problem. We based VanBibber on the legislature's clear intent and policy determination to prohibit joinder of insurance companies in suits against their insureds. Such clear intent and policy determination is lacking in the instant case. Therefore, we find Haven Federal's reliance on VanBibber misplaced.
Florida Rule of Civil Procedure 1.270(b) states:
  • The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim or third party claim or of any separate issue or of any number of claims, cross-claims, counterclaims, third party claims or issues.
Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991)

 

Sales Procedure

Judicial Sales Procedure: In any sale of real or personal property under an order or judgment, the procedures provided in this section and ss. 45.0315-45.035 may be followed as an alternative to any other sale procedure if so ordered by the court.

  •  This statute describes the sale of a consumers home once they foreclose. The home will be sold by the clerk at a public auction not less then 20 days or more then 35 after an order or judgment has been entered. 

Fla. Stat. Ann. § 45.031 (West)

Subject Guide

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