Filed: Dec. 11, 2014
Latest Update: Mar. 02, 2020
Summary: Supreme Court of Florida _ No. SC13-2384 _ IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE. [December 11, 2014] PER CURIAM. The Florida Bar’s Civil Procedure Rules Committee (Committee) has filed a “fast- track” out-of-cycle report proposing amendments to the Florida Rules of Civil Procedure in response to statutory changes. See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction.1 The Committee proposes amendments to Florida Rule of Civil Procedure 1.110 and forms 1.944, 1.996(a), and
Summary: Supreme Court of Florida _ No. SC13-2384 _ IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE. [December 11, 2014] PER CURIAM. The Florida Bar’s Civil Procedure Rules Committee (Committee) has filed a “fast- track” out-of-cycle report proposing amendments to the Florida Rules of Civil Procedure in response to statutory changes. See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction.1 The Committee proposes amendments to Florida Rule of Civil Procedure 1.110 and forms 1.944, 1.996(a), and 1..
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Supreme Court of Florida
_____________
No. SC13-2384
_____________
IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL
PROCEDURE.
[December 11, 2014]
PER CURIAM.
The Florida Bar’s Civil Procedure Rules Committee (Committee) has filed a “fast-
track” out-of-cycle report proposing amendments to the Florida Rules of Civil Procedure
in response to statutory changes. See Fla. R. Jud. Admin. 2.140(e). We have
jurisdiction.1
The Committee proposes amendments to Florida Rule of Civil Procedure 1.110
and forms 1.944, 1.996(a), and 1.996(b). The Committee also proposes new rule 1.115
and several new forms. According to the report, the amended and new rules and forms
are in response to legislation regarding mortgage foreclosure actions. Chapter 2013-173,
Laws of Florida, created new section 702.015, Florida Statutes. This statutory provision
sets forth new pleading requirements for mortgage foreclosure complaints intended to
1. Art. V, § 2(a), Fla. Const.
“expedite the foreclosure process by ensuring initial disclosure of a plaintiff’s status and
the facts supporting that status, thereby ensuring the availability of documents necessary
to the prosecution of the case.” Ch. 2013-173, § 3, Laws of Fla. Chapter 2013-173 also
amended section 702.10, Florida Statutes (2012), relating to orders to show cause why a
judgment of foreclosure should not be entered and hearings held thereon. Ch. 2013-173,
§ 6, Law of Fla. The legislation became effective on June 7, 2013. Ch. 2013-173, § 10,
Laws of Fla. The new pleading requirements are effective as to cases filed on or after
July 1, 2013, and the new show cause provisions apply to cases pending on the effective
date of the act. Ch. 2013-173, § 8, Laws of Fla.
After considering the proposed amendments and reviewing the relevant
legislation, we amend the Florida Rules of Civil Procedure and forms as reflected in the
appendix to this opinion. New language is indicated by underscoring; deletions are
indicated by struck-through type. The amendments shall take effect immediately upon
the release of this opinion. Because the amendments were not published for comment
prior to adoption, interested persons shall have sixty days from the date of this opinion in
which to file comments with the Court.2
2. All comments must be filed with the Court on or before February 9, 2015, with
a certificate of service verifying that a copy has been served on the Committee Chair,
Kevin B. Cook, Rogers Towers, P.A., 818 A1A N., Suite 208, Ponte Vedra Beach,
Florida 32082-8217, kcook@rtlaw.com, and on the Bar Staff Liaison to the Committee,
Ellen Sloyer, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300,
esloyer@flabar.org, as well as a separate request for oral argument if the person filing
the comment wishes to participate in oral argument, which may be scheduled in this
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It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and
PERRY, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Florida Rules of Civil Procedure
Kevin Bayly Cook, Chair, Civil Procedure Rules Committee, Roger Towers, P.A., Ponte
Vedra Beach, Florida; Thomas Howell Bateman, III, Past Chair, Civil Procedure Rules
Committee, Messer Caparello, P.A., Tallahassee, Florida; John F. Harkness, Jr.,
Executive Director and Ellen H. Sloyer, Bar Staff Liaison, The Florida Bar, Tallahassee,
Florida,
for Petitioner
case. The Committee Chair has until March 2, 2015, to file a response to any comments
filed with the Court. If filed by an attorney in good standing with The Florida Bar, the
comment must be electronically filed via the Portal in accordance with In re Electronic
Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla.
Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not
licensed to practice in Florida, the comment must be electronically filed via e-mail in
accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla.
Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must
be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment
electronically must mail or hand deliver the originally signed comment to the Florida
Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-
1927. No additional copies are required or will be accepted.
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APPENDIX
RULE 1.110. GENERAL RULES OF PLEADING
(a) [No change]
(b) Claims for Relief. A pleading which sets forth a claim for relief,
whether an original claim, counterclaim, crossclaim, or third-party claim must state
a cause of action and shall contain (1) a short and plain statement of the grounds
upon which the court's jurisdiction depends, unless the court already has
jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a
short and plain statement of the ultimate facts showing that the pleader is entitled
to relief, and (3) a demand for judgment for the relief to which the pleader deems
himself or herself entitled. Relief in the alternative or of several different types
may be demanded. Every complaint shall be considered to pray for general relief.
When filing an action for foreclosure of a mortgage on residential real property the
complaint shall be verified. When verification of a document is required, the
document filed shall include an oath, affirmation, or the following statement:
“Under penalty of perjury, I declare that I have read the foregoing, and the facts
alleged therein are true and correct to the best of my knowledge and belief.”
(c) – (h) [No change]
Committee Notes
1971 Amendment. Subdivision (h) is added to cover a situation usually
arising in divorce judgment modifications, supplemental declaratory relief actions,
or trust supervision. When any subsequent proceeding results in a pleading in the
strict technical sense under rule 1.100(a), response by opposing parties will follow
in the same course as though the new pleading were the initial pleading in the
action. The time for answering and authority for defenses under rule 1.140 will
apply. The last sentence exempts post judgment motions under rules 1.480(c),
1.530, and 1.540, and similar proceedings from its purview.
2014 Amendment. The last two paragraphs of rule 1.110(b) regarding
pleading requirements for certain mortgage foreclosure actions were deleted and
incorporated in new rule 1.115.
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RULE 1.115. PLEADING MORTGAGE FORECLOSURES
(a) Claim for Relief. A claim for relief that seeks to foreclose a
mortgage or other lien on residential real property, including individual units of
condominiums and cooperatives designed principally for occupation by one to four
families which secures a promissory note, must: (1) contain affirmative allegations
expressly made by the claimant at the time the proceeding is commenced that the
claimant is the holder of the original note secured by the mortgage; or (2) allege
with specificity the factual basis by which the claimant is a person entitled to
enforce the note under section 673.3011, Florida Statutes.
(b) Delegated Claim for Relief. If a claimant has been delegated the
authority to institute a mortgage foreclosure action on behalf of the person entitled
to enforce the note, the claim for relief shall describe the authority of the claimant
and identify with specificity the document that grants the claimant the authority to
act on behalf of the person entitled to enforce the note. The term “original note” or
“original promissory note” means the signed or executed promissory note rather
than a copy of it. The term includes any renewal, replacement, consolidation, or
amended and restated note or instrument given in renewal, replacement, or
substitution for a previous promissory note. The term also includes a transferrable
record, as defined by the Uniform Electronic Transaction Act in section
668.50(16), Florida Statutes.
(c) Possession of Original Promissory Note. If the claimant is in
possession of the original promissory note, the claimant must file under penalty of
perjury a certification contemporaneously with the filing of the claim for relief for
foreclosure that the claimant is in possession of the original promissory note. The
certification must set forth the location of the note, the name and title of the
individual giving the certification, the name of the person who personally verified
such possession, and the time and date on which the possession was verified.
Correct copies of the note and all allonges to the note must be attached to the
certification. The original note and the allonges must be filed with the court before
the entry of any judgment of foreclosure or judgment on the note.
(d) Lost, Destroyed, or Stolen Instrument. If the claimant seeks to
enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty
of perjury must be attached to the claim for relief. The affidavit must: (1) detail a
clear chain of all endorsements, transfers, or assignments of the promissory note
that is the subject of the action; (2) set forth facts showing that the claimant is
entitled to enforce a lost, destroyed, or stolen instrument pursuant to section
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673.3091, Florida Statutes; and (3) include as exhibits to the affidavit such copies
of the note and the allonges to the note, audit reports showing receipt of the
original note, or other evidence of the acquisition, ownership, and possession of the
note as may be available to the claimant. Adequate protection as required under
section 673.3091(2), Florida Statutes, shall be provided before the entry of final
judgment.
(e) Verification. When filing an action for foreclosure on a mortgage for
residential real property the claim for relief shall be verified by the claimant
seeking to foreclose the mortgage. When verification of a document is required,
the document filed shall include an oath, affirmation, or the following statement:
“Under penalties of perjury, I declare that I have read the foregoing,
and the facts alleged therein are true and correct to the best of my knowledge
and belief.”
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FORM 1.944(a). MORTGAGE FORECLOSURE
(When location of original note known)
COMPLAINT
Plaintiff, A. B., sues defendant, C. D., and alleges:
1. This is an action to foreclose a mortgage on real property in
.................. County, Florida.
2. On .....(date)....., defendant executed and delivered a promissory note
and a mortgage securing payment of the note to …..(plaintiff or plaintiff’s
predecessor…..The mortgage was recorded on .....(date)....., in Official Records
Book .......... at page .......... of the public records of .................... County, Florida,
and mortgaged the property described in the mortgage then owned by and in
possession of the mortgagor, a copy of the mortgage containing a copy of and the
note being attached.
3. Plaintiff owns and holds the note and mortgage. (Select a, b, or c)
(a) Plaintiff is the holder of the original note secured by the mortgage.
(b) Plaintiff is a person entitled to enforce the note under applicable law
because …..(allege specific facts)……
(c) Plaintiff has been delegated the authority to institute a mortgage
foreclosure action on behalf of the person entitled to enforce the note. The
document(s) that grant(s) plaintiff the authority to act on behalf of the person
entitled to enforce the note is/are as follows …………………………..
4. The property is now owned by defendant who holds possession.
5. Defendant has defaulted under the note and mortgage by failing to pay
the payment due .....(date)....., and all subsequent payments …..(allege other
defaults as applicable)…….
6. Plaintiff declares the full amount payable under the note and mortgage
to be due.
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7. Defendant owes plaintiff $.......... that is due on principal on the note
and mortgage, interest from .....(date)....., and title search expense for ascertaining
necessary parties to this action.
8. Plaintiff is obligated to pay plaintiff’s attorneys a reasonable fee for
their services. Plaintiff is entitled to recover its attorneys’ fees under …..(allege
statutory and/or contractual bases, as applicable)……
WHEREFORE, plaintiff demands judgment foreclosing the mortgage, for
costs (and, when applicable, for attorneys’ fees), and, if the proceeds of the sale are
insufficient to pay plaintiff’s claim, a deficiency judgment.
NOTE: An action for foreclosure of a mortgage on residential real property must
contain an oath, affirmation, or the following statement as required by rule
1.115(e).
VERIFICATION
Under penalty of perjury, I declare that I have read the foregoing, and the
facts alleged therein are true and correct to the best of my knowledge and belief.
Executed on this …..(date)…..
__________________________
[Person Signing Verification]
CERTIFICATION OF POSSESSION OF ORIGINAL NOTE
The undersigned hereby certifies:
1. That plaintiff is in possession of the original promissory note upon
which this action is brought.
2. The location of the original promissory note is: …..(location)..….
3. The name and title of the person giving the certification is: …..(name
and title)..….
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4. The name of the person who personally verified such possession is:
…..(name)..….
5. The time and date on which possession was verified were: …..(time
and date)..….
6. Correct copies of the note (and, if applicable, all endorsements,
transfers, allonges, or assignments of the note) are attached to this certification.
7. I give this statement based on my personal knowledge.
Under penalties of perjury, I declare that I have read the foregoing
Certification of Possession of Original Note and that the facts stated in it are true.
Executed on …..(date)……
_________________________________
[Person Signing Certification]
NOTE: This form is for installment payments with acceleration. It omits
allegations about junior encumbrances, unpaid taxes, unpaid insurance premiums,
other nonmonetary defaults, and for a receiver. They must be added when proper
appropriate. CopiesA copy of the note and mortgage must be attached. This form
may require modification. This form is designed to incorporate the pleading
requirements of section 702.015, Florida Statutes (2013) and rule 1.115. It is also
designed to conform to section 673.3011, Florida Statutes (2013), except that part
of section 673.3011, Florida Statutes, which defines a person entitled to enforce an
instrument under section 673.3091, Florida Statutes. See form 1.944(b). Pursuant
to section 702.015, Florida Statutes (2013), a certification of possession of the
original promissory note must be filed contemporaneously with the Complaint
(form 1.944(a)) or, in the event that the plaintiff seeks to enforce a lost, destroyed,
or stolen instrument, an affidavit setting forth the facts required by law must be
attached to the complaint (form 1.944(b)).
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FORM 1.944(b). MORTGAGE FORECLOSURE
(When location of original note unknown)
COMPLAINT
Plaintiff, ABC, sues defendant, XYZ, and states:
1. This is an action to foreclose a mortgage on real property in ……….
County, Florida.
2, On …..(date)..…., defendant executed and delivered a promissory
note and a mortgage securing the payment of said note to …..(plaintiff or
plaintiff’s predecessor)…... The mortgage was recorded on …..(date).…., in
Official Records Book ….. at page ….. of the public records of ……… County,
Florida, and mortgaged the property described therein which was then owned by
and in possession of the mortgagor. A copy of the mortgage and note are attached
to the affidavit which is attached hereto as Composite Exhibit “1”; the contents of
the affidavit are specifically incorporated by reference.
3. Plaintiff is not in possession of the note but is entitled to enforce it.
4. (select a, b, c, or d) Plaintiff cannot reasonably obtain possession of
the note because
(a) the note was destroyed.
(b) the note is lost.
(c) the note is in the wrongful possession of an unknown person.
(d) the note is in the wrongful possession of a person that cannot be found
or is not amenable to service of process.
5. (select a, b, c, or d)
(a) At the time the original note was lost, plaintiff was the holder of the
original note secured by the mortgage.
(b) At the time the original note was lost, plaintiff was a person entitled to
enforce the note under applicable law because .....(allege specific facts)…...
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(c) Plaintiff has directly or indirectly acquired ownership of the note from
a person who was entitled to enforce the note when loss of possession occurred as
follows: …..(allege facts as to transfer of ownership)…...
(d) Plaintiff has been delegated the authority to institute a mortgage
foreclosure action on behalf of the person entitled to enforce the note, and the
document(s) that grant(s) plaintiff the authority to act on behalf of the person
entitled to enforce the note is/are as follows …………………………. (attach
documents if not already attached).
6. Plaintiff did not transfer the note or lose possession of it as the result
of a lawful seizure.
7. The property is now owned by defendant who holds possession.
8. Defendant has defaulted under the note and mortgage by failing to pay
the payment(s) due ..…(date(s))….. , and all subsequent payments ….. (identify
other defaults as applicable)……
9. Plaintiff declares the full amount payable under the note and mortgage
to be due.
10. Defendant owes plaintiff $......... that is due on principal on the note
and mortgage, interest from …..(date)….. , and title search expense for
ascertaining necessary parties to this action.
11. Plaintiff is obligated to pay its attorneys a reasonable fee for their
services. Plaintiff is entitled to recover its attorneys’ fees for prosecuting this
claim pursuant to …..(identify statutory and/or contractual bases, as
applicable)……
WHEREFORE, Plaintiff demands judgment foreclosing the mortgage, for
costs (and, where applicable, for attorneys’ fees), and if the proceeds of the sale are
insufficient to pay plaintiff’s claim, a deficiency judgment.
NOTE: An action for foreclosure of a mortgage on residential real property must
contain an oath, affirmation, or the following statement as required by rule
1.115(e).
VERIFICATION
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Under penalty of perjury, I declare that I have read the foregoing, and the
facts alleged therein are true and correct to the best of my knowledge and belief.
Executed on …..(date)…....
______________________________
(Person Signing Verification)
*****
AFFIDAVIT OF COMPLIANCE
STATE OF FLORIDA
COUNTY OF ……………
BEFORE ME, the undersigned authority, personally appeared
…..(name)….., who, after being first duly sworn, deposes and states, under penalty
of perjury:
1. I am the plaintiff (or plaintiff’s …………) (identify relationship to
plaintiff).
2. I am executing this affidavit in support of plaintiff’s Complaint
against defendant and I have personal knowledge of the matters set forth herein.
3. On …..(date)….. , the public records reflect that defendant executed
and delivered a mortgage securing the payment of the note to
…..(plaintiff/plaintiff’s predecessor)…… The mortgage was recorded on
…..(date)….. , in Official Records Book ……… at page ……… of the public
records of …….. County, Florida, and mortgaged the property described therein,
which was then owned by and in possession of the mortgagor, a copy of the
mortgage and the note being attached.
4. (select a, b, c, or d) Plaintiff cannot reasonably obtain possession of
the note because
(a) the note was destroyed.
(b) the note is lost.
(c) the note is in the wrongful possession of an unknown person.
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(d) the note is in the wrongful possession of a person who cannot be
found or is not amenable to service of process.
5. (select a, b, c, or d)
(a) At the time the original note was lost, plaintiff was the holder of the
original note secured by the mortgage.
(b) At the time the original note was lost, plaintiff was a person entitled to
enforce the note under applicable law because ......(allege specific facts)…...
(c) Since the note was lost, plaintiff has directly or indirectly acquired
ownership of the note from a person who was entitled to enforce the note when
loss of possession occurred as follows: …..(allege facts regarding transfer of
ownership)…...
(d) Plaintiff has been delegated the authority to institute a mortgage
foreclosure action on behalf of the person entitled to enforce the note, and the
document(s) that grant(s) plaintiff the authority to act on behalf of the person
entitled to enforce the note is/are as follows ………………………………. (attach
copy of document(s) or relevant portion(s) of the document(s)).
6. Below is the clear chain of the endorsements, transfers, allonges or
assignments of the note and all documents that evidence same as are available to
Plaintiff: …..(identify in chronological order all endorsements, transfers,
assignments of, allonges to, the note or other evidence of the acquisition,
ownership and possession of the note)…... Correct copies of the foregoing
documents are attached to this affidavit.
7. Plaintiff did not transfer the note or lose possession of it as the result
of a lawful seizure.
FURTHER, AFFIANT SAYETH NAUGHT.
__________________________
[signature]
…………………………………
[typed or printed name of affiant]
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STATE OF FLORIDA
COUNTY OF …………...
BEFORE ME, the undersigned authority appeared …..(name of affiant)…..,
who …..is personally known to me or …… produced identification ….. and
acknowledged that he/she executed the foregoing instrument for the purposes
expressed therein and who did take an oath.
WITNESS my hand and seal in the State and County aforesaid, this
…..(date)…...
______________________________
NOTARY PUBLIC, State of Florida
Print Name: …………………………
Commission Expires: ……………….
Committee Note
2014 Adoption. This form is for installment payments with acceleration. It
omits allegations about junior encumbrances, unpaid taxes, unpaid insurance
premiums, other nonmonetary defaults, and for a receiver. Allegations must be
added when appropriate. This form may require modification. This form is
designed to incorporate the pleading requirements of section 702.015, Florida
Statutes (2013), and rule 1.115. It is also designed to comply with section
673.3091, Florida Statutes (2013). Adequate protection as required by sections
702.11 (2013) and 673.3091(2), Florida Statutes (2013), must be provided before
the entry of final judgment.
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FORM 1.944(c) MOTION FOR ORDER TO SHOW CAUSE
PLAINTIFF’S MOTION FOR ORDER TO SHOW CAUSE
FOR ENTRY OF FINAL JUDGMENT OF FORECLOSURE
1. Plaintiff is a lienholder of real property located at …..(address)….. or
is a …..Condominium Association/Cooperative Association/Homeowner’s
Association……
2. The plaintiff has filed a verified complaint in conformity with
applicable law, which is attached.
3. The plaintiff requests this court issue an order requiring defendant(s)
to appear before the court to show cause why a final judgment of foreclosure
should not be entered against defendant(s).
4. The date of the hearing may not occur sooner than the later of 20 days
after service of the order to show cause or 45 days after service of the initial
complaint.
OR
COMMENT: Use the following when service is by publication:
4. When service is obtained by publication, the date for the hearing may
not be set sooner than 30 days after the first publication.
5. The accompanying proposed order to show cause affords defendant(s)
all the rights and obligations as contemplated by applicable law.
6. Upon the entry of the order to show cause, plaintiff shall serve a copy
of the executed order to show cause for entry of final judgment as required by law.
7. This is not a residential property for which a homestead
exemption for taxation was granted according to the rolls of the latest
assessment by the County Property Appraiser.
Plaintiff requests the court review this complaint and grant this motion for
order to show cause for entry of final judgment of foreclosure, and grant such
further relief as may be awarded at law or in equity.
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Plaintiff
Certificate of Service
Committee Note
2014 Adoption. This form is designed to comply with section 702.10,
Florida Statutes (2013).
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FORM 1.944(d) ORDER TO SHOW CAUSE
ORDER TO SHOW CAUSE
THIS CAUSE has come before the court on …..plaintiff’s/lien holder’s…..
motion for order to show cause for entry of final judgment of mortgage foreclosure
and the court having reviewed the motion and the verified complaint, and being
otherwise fully advised in the circumstances, finds and it is
ORDERED AND ADJUDGED that:
1. The defendant(s) shall appear at a hearing on foreclosure on
..…(date)….. at ...…(time)….. before the undersigned judge, in the
..…(county)….. Courthouse at ..…(address)….., to show cause why the attached
final judgment of foreclosure should not be entered against the defendant(s) in this
cause. This hearing referred to in this order is a “show cause hearing.”
2. This ORDER TO SHOW CAUSE shall be served on the defendant(s)
in accordance with the Florida Rules of Civil Procedure and applicable law as
follows:
a. If the defendant(s) has/have been served under Chapter 48, Florida
Statutes, with the verified complaint and original process has already been
effectuated, service of this order may be made in the manner provided in the
Florida Rules of Civil Procedure; or, if the other party is the plaintiff in the action,
service of the order to show cause on that party may be made in the manner
provided in the Florida Rules of Civil Procedure.
b. If the defendant(s) has/have not been served under Chapter 48, Florida
Statutes, with the verified complaint and original process, the order to show cause,
together with the summons and a copy of the verified complaint, shall be served on
the party in the same manner as provided by law for original process.
3. The filing of defenses by a motion or verified answer at or before the
show cause hearing constitutes cause for which the court may not enter the
attached final judgment.
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4. Defendant(s) has/have the right to file affidavits or other papers at the
time of the show cause hearing and may appear at the hearing personally or by an
attorney.
5. If defendant(s) file(s) motions, they may be considered at the time of
the show cause hearing.
6. Defendant(s)’ failure to appear either in person or by an attorney at the
show cause hearing or to file defenses by motion or by a verified or sworn answer,
affidavits, or other papers which raise a genuine issue of material fact which
would preclude entry of summary judgment or which would otherwise constitute a
legal defense to foreclosure, after being served as provided by law with the order
to show cause, will be deemed presumptively a waiver of the right to a hearing. In
such case, the court may enter a final judgment of foreclosure ordering the clerk
of the court to conduct a foreclosure sale. An order requiring defendant(s) to
vacate the premises may also be entered.
7. If the mortgage provides for reasonable attorneys’ fees and the
requested fee does not exceed 3% of the principal amount owed at the time the
complaint is filed, the court may not need to hold a hearing to adjudge the
requested fee to be reasonable.
8. Any final judgment of foreclosure entered under section 702.10(1)
Florida Statutes, shall be only for in rem relief; however, entry of such final
judgment of foreclosure shall not preclude entry of an in personam money
damages judgment or deficiency judgment where otherwise allowed by law.
9. A copy of the proposed final judgment is attached and will be
entered by the court if defendant(s) waive(s) the right to be heard at the show
cause hearing.
10. The court finds that this is not a residential property for which a
homestead exemption for taxation was granted according to the rolls of the
latest assessment by the county property appraiser.
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DONE AND ORDERED at …..(county)..…, Florida .....(date)……
_____________________
CIRCUIT JUDGE
Copies to:
Committee Note
2014 Adoption. This form is designed to comply with section 702.10(1),
Florida Statutes (2013).
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FORM 1.996(a). FINAL JUDGMENT OF FORECLOSURE
FINAL JUDGMENT
This action was tried before the court. On the evidence presented
IT IS ADJUDGED that:
1. Amounts Due. Plaintiff, …..(name and address)….., is due
Principal $..............................
Interest to date of this
judgment …………………….
Title search expenses …………………….
Taxes …………………….
Attorneys’ fees …………………….
Finding as to
reasonable number
of hours: …………………….
Finding as to
reasonable hourly
rate: ……………………
Other: ……………………
(*The requested attorneys’ fees are a flat rate fee that the firm’s client has
agreed to pay in this matter. Given the amount of the fee requested and the
labor expended, the Court finds that a lodestar analysis is not necessary and
that the flat fee is reasonable.)
Attorneys’ fees total ……………………..
Court costs, now taxed ……………………..
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Other: ………….. ………………….…...
Subtotal $..................................
LESS: Escrow balance ………………….…...
LESS: Other ……………….….…..
TOTAL $..................................
That shall bear interest at a rate of 7% per year.
2. Lien on Property. Plaintiff holds a lien for the total sum superior to
all claims or estates of defendant(s), on the following described property in
……………….. County, Florida:
(describe property)
3. Sale of Property. If the total sum with interest at the rate described
in paragraph 1 and all costs accrued subsequent to this judgment are not paid, the
clerk of this court shall sell the property at public sale on .....(date)….., to the
highest bidder for cash, except as prescribed in paragraph 4, at the courthouse
located at ….(street address of courthouse)…. in …………… County in …..(name
of city)….., Florida, in accordance with section 45.031, Florida Statutes (2013),
using the following method (CHECK ONE):
□….. At .....(location of sale at courthouse; e.g., north door)....., beginning at
.....(time of sale)..... on the prescribed date.
□ ….. By electronic sale beginning at .....(time of sale)..... on the prescribed date at
.....(website)......
4. Costs. Plaintiff shall advance all subsequent costs of this action and
shall be reimbursed for them by the clerk if plaintiff is not the purchaser of the
property for sale, provided, however, that the purchaser of the property for sale
shall be responsible for the documentary stamps payable on the certificate of title.
If plaintiff is the purchaser, the clerk shall credit plaintiff’s bid with the total sum
with interest and costs accruing subsequent to this judgment, or such part of it as is
necessary to pay the bid in full.
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5. Distribution of Proceeds. On filing the certificate of title the clerk
shall distribute the proceeds of the sale, so far as they are sufficient, by paying:
first, all of plaintiff’s costs; second, documentary stamps affixed to the certificate;
third, plaintiff’s attorneys’ fees; fourth, the total sum due to plaintiff, less the items
paid, plus interest at the rate prescribed in paragraph 1 from this date to the date of
the sale; and by retaining any remaining amount pending further order of this
court.
6. Right of Redemption/Right of Possession. On filing the certificate
of sale, defendant(s) and all persons claiming under or against defendant(s) since
the filing of the notice of lis pendens shall be foreclosed of all estate or claim in the
property and defendant’s right of redemption as prescribed by section 45.0315,
Florida Statutes (2013) shall be terminated, except as to claims or rights under
chapter 718 or chapter 720, Florida Statutes, if any. Upon the filing of the
certificate of title, the person named on the certificate of title shall be let into
possession of the property.
7. Attorneys’ Fees.
[If a default judgment has been entered against the mortgagor]
Because a default judgment has been entered against the mortgagor and
because the fees requested do not exceed 3% of the principal amount owed at the
time the complaint was filed, it is not necessary for the court to hold a hearing or
adjudge the requested attorneys’ fees to be reasonable.
[If no default judgment has been entered against the mortgagor]
The court finds, based upon the affidavits/testimony presented and upon
inquiry of counsel for the plaintiff that ___ hours were reasonably expended by
plaintiff's counsel and that an hourly rate of $______ is appropriate. Plaintiff’s
counsel represents that the attorneys’ fees awarded does not exceed its contract fee
with the plaintiff. The court finds that there is/are no reduction or enhancement
factors for consideration by the court pursuant to Florida Patients Compensation
Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). (If the court has found that there are
reduction or enhancement factors to be applied, then such factors must be
identified and explained herein).
[If the fees to be awarded are a flat fee]
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The requested attorneys’ fees are a flat rate fee that the firm’s client has
agreed to pay in this matter. Given the amount of the fee requested and the
labor expended, the court finds that a lodestar analysis is not necessary and
that the flat fee is reasonable.
78. Jurisdiction Retained. Jurisdiction of this action is retained to enter
further orders that are proper including, without limitation, a deficiency judgment.
IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE
ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF
PERSONS WHO ARE ENTITLED TO BE PAID FROM THE SALE
PROCEEDS PURSUANT TO THE FINAL JUDGMENT.
IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO
FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM
WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF
YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY
REMAINING FUNDS.
[If the property being foreclosed on has qualified for the homestead tax exemption
in the most recent approved tax roll, the final judgment shall additionally contain
the following statement in conspicuous type:]
IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE
FUNDS YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER
OR ANY OTHER REPRESENTATION AND YOU DO NOT HAVE TO
ASSIGN YOUR RIGHTS TO ANYONE ELSE IN ORDER FOR YOU TO
CLAIM ANY MONEY TO WHICH YOU ARE ENTITLED. PLEASE
CONTACT THE CLERK OF THE COURT, (INSERT INFORMATION FOR
APPLICABLE COURT) WITHIN 10 DAYS AFTER THE SALE TO SEE IF
THERE IS ADDITIONAL MONEY FROM THE FORECLOSURE SALE
THAT THE CLERK HAS IN THE REGISTRY OF THE COURT.
IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP
YOU CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY
CAREFULLY ALL PAPERS YOU ARE REQUIRED TO SIGN, ASK
SOMEONE ELSE, PREFERABLY AN ATTORNEY WHO IS NOT
RELATED TO THE PERSON OFFERING TO HELP YOU, TO MAKE
SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND
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THAT YOU ARE NOT TRANSFERRING YOUR PROPERTY OR THE
EQUITY IN YOUR PROPERTY WITHOUT THE PROPER
INFORMATION. IF YOU CANNOT AFFORD TO PAY AN ATTORNEY,
YOU MAY CONTACT (INSERT LOCAL OR NEAREST LEGAL AID OFFICE
AND TELEPHONE NUMBER) TO SEE IF YOU QUALIFY FINANCIALLY
FOR THEIR SERVICES. IF THEY CANNOT ASSIST YOU, THEY MAY
BE ABLE TO REFER YOU TO A LOCAL BAR REFERRAL AGENCY OR
SUGGEST OTHER OPTIONS. IF YOU CHOOSE TO CONTACT (NAME
OF LOCAL OR NEAREST LEGAL AID OFFICE AND TELEPHONE
NUMBER) FOR ASSISTANCE, YOU SHOULD DO SO AS SOON AS
POSSIBLE AFTER RECEIPT OF THIS NOTICE.
ORDERED at ...................., Florida, on .....(date).......
___________________
Judge
NOTE: Paragraph 1 must be varied in accordance with the items unpaid, claimed,
and proven. The form does not provide for an adjudication of junior lienors’
claims nor for redemption by the United States of America if it is a defendant. The
address of the person who claims a lien as a result of the judgment must be
included in the judgment in order for the judgment to become a lien on real estate
when a certified copy of the judgment is recorded. Alternatively, an affidavit with
this information may be simultaneously recorded. For the specific requirements,
see section 55.10(1), Florida Statutes; Hott Interiors, Inc. v. Fostock, 721 So. 2d
1236 (Fla. 4th DCA 1998).
Committee Notes
1980 Amendment. The reference to writs of assistance in paragraph 7 is
changed to writs of possession to comply with the consolidation of the 2 writs.
2010 Amendment. Mandatory statements of the mortgagee/property
owner‘s rights are included as required by the 2006 amendment to section 45.031,
Florida Statutes. Changes are also made based on 2008 amendments to section
45.031, Florida Statutes, permitting courts to order sale by electronic means.
- 24 -
Additional changes were made to bring the form into compliance with
chapters 718 and 720 and section 45.0315, Florida Statutes, and to better align the
form with existing practices of clerks and practitioners. The breakdown of the
amounts due is now set out in column format to simplify calculations. The
requirement that the form include the address and social security number of all
defendants was eliminated to protect the privacy interests of those defendants and
in recognition of the fact that this form of judgment does not create a personal final
money judgment against the defendant borrower, but rather an in rem judgment
against the property. The address and social security number of the defendant
borrower should be included in any deficiency judgment later obtained against the
defendant borrower.
2014 Amendment. These amendments added titles, updated statutory
reference to time for right of redemption, and added a paragraph on attorneys’ fees.
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FORM 1.996(b). FINAL JUDGMENT OF FORECLOSURE FOR
REESTABLISHMENT OF LOST NOTE
FINAL JUDGMENT
This action was tried before the court. On the evidence presented
IT IS ADJUDGED that:
1. Amounts Due. Plaintiff, …. (name and address) ….., is due
Principal $...............................
Interest to date of this
judgment …………………….
Title search expenses …………………….
Taxes …………………….
Attorneys’ fees total ……………………..
Court costs, now taxed ……………………..
Other: ………….. ……………………...
Subtotal $.................................
LESS: Escrow balance ……………………..
LESS: Other ……………….…….
TOTAL $...............................
2. Lien on Property. Plaintiff holds a lien for the total sum superior to
all claims or estates of defendant(s), on the following described property
……………….. County, Florida:
(describe property)
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3. Sale of Property. If the total sum with interest at the rate described
in paragraph 1 and all costs accrued subsequent to this judgment are not paid, the
clerk of this court shall sell the property at public sale on .....(date)….., to the
highest bidder for cash, except as prescribed in paragraph 4, at the courthouse
located at ….(street address of courthouse)…. in …………… County in
………(name of city)….., Florida, in accordance with section 45.031, Florida
Statutes (2013), using the following method (CHECK ONE):
At .....(location of sale at courthouse; e.g., north door)....., beginning at
.....(time of sale)..... on the prescribed date.
By electronic sale beginning at .....(time of sale)..... on the prescribed date at
.....(website)......
4. Costs. Plaintiff shall advance all subsequent costs of this action and
shall be reimbursed for them by the clerk if plaintiff is not the purchaser of the
property for sale, provided, however, that the purchaser of the property for sale
shall be responsible for the documentary stamps payable on the certificate of title.
If plaintiff is the purchaser, the clerk shall credit plaintiff’s bid with the total sum
with interest and costs accruing subsequent to this judgment, or such part of it as is
necessary to pay the bid in full.
5. Distribution of Proceeds. On filing the certificate of title the clerk
shall distribute the proceeds of the sale, so far as they are sufficient, by paying:
first, all of plaintiff’s costs; second, documentary stamps affixed to the certificate;
third, plaintiff’s attorneys’ fees; fourth, the total sum due to plaintiff, less the items
paid, plus interest at the rate prescribed in paragraph 1 from this date to the date of
the sale; and by retaining any remaining amount pending further order of this
court.
6. Right of Redemption/Right of Possession. On filing the certificate
of sale, defendant(s) and all persons claiming under or against defendant(s) since
the filing of the notice of lis pendens shall be foreclosed of all estate or claim in the
property and defendant’s right of redemption as prescribed by section 45.031,
Florida Statutes (2013) shall be terminated, except as to claims or rights under
chapter 718 or chapter 720, Florida Statutes, if any. Upon the filing of the
certificate of title, the person named on the certificate of title shall be let into
possession of the property.
7. Attorneys’ Fees.
- 27 -
[If a default judgment has been entered against the mortgagor]
Because a default judgment has been entered against the mortgagor and
because the fees requested do not exceed 3% of the principal amount owed at the
time the complaint was filed, it is not necessary for the court to hold a hearing or
adjudge the requested attorneys’ fees to be reasonable.
[If no default judgment has been entered against the mortgagor]
The court finds, based upon the affidavits/testimony presented and upon
inquiry of counsel for the plaintiff that ___ hours were reasonably expended by
plaintiff's counsel and that an hourly rate of $______ is appropriate. Plaintiff’s
counsel represents that the attorney fee awarded does not exceed its contract fee
with the plaintiff. The court finds that there are no reduction or enhancement
factors for consideration by the court pursuant to Florida Patients Compensation
Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). (If the court has found that there are
reduction or enhancement factors to be applied, then such factors must be
identified and explained herein).
[If the fees to be awarded are a flat fee]
The requested attorneys’ fees are a flat rate fee that the firm’s client has
agreed to pay in this matter. Given the amount of the fee requested and the
labor expended, the court finds that a lodestar analysis is not necessary and
that the flat fee is reasonable.
8. Re-establishment of Lost Note. The court finds that the plaintiff has
re-established the terms of the lost note and its right to enforce the instrument as
required by applicable law. Plaintiff shall hold the defendant(s) maker of the note
harmless and shall indemnify defendant(s) for any loss defendant(s) may incur by
reason of a claim by any other person to enforce the lost note. Adequate protection
has been provided as required by law by the following means: …..(identify means
of security under applicable law: a written indemnification agreement, a surety
bond, include specific detail)…...
Judgment is hereby entered in favor of the plaintiff as to its request to
enforce the lost note.
- 28 -
9. Jurisdiction Retained. Jurisdiction of this action is retained to
enforce the adequate protection ordered and to enter further orders that are proper
including, without limitation, a deficiency judgment.
IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE
ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF
PERSONS WHO ARE ENTITLED TO BE PAID FROM THE SALE
PROCEEDS PURSUANT TO THE FINAL JUDGMENT.
IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO
FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM
WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF
YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY
REMAINING FUNDS.
[If the property being foreclosed on has qualified for the homestead tax exemption
in the most recent approved tax roll, the final judgment shall additionally contain
the following statement in conspicuous type:]
IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE
FUNDS YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER
OR ANY OTHER REPRESENTATION AND YOU DO NOT HAVE TO
ASSIGN YOUR RIGHTS TO ANYONE ELSE IN ORDER FOR YOU TO
CLAIM ANY MONEY TO WHICH YOU ARE ENTITLED. PLEASE
CHECK WITH THE CLERK OF THE COURT, (INSERT INFORMATION
FOR APPLICABLE COURT) WITHIN 10 DAYS AFTER THE SALE TO SEE
IF THERE IS ADDITIONAL MONEY FROM THE FORECLOSURE SALE
THAT THE CLERK HAS IN THE REGISTRY OF THE COURT.
IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP
YOU CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY
CAREFULLY ALL PAPERS YOU ARE REQUIRED TO SIGN, ASK
SOMEONE ELSE, PREFERABLY AN ATTORNEY WHO IS NOT
RELATED TO THE PERSON OFFERING TO HELP YOU, TO MAKE
SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND
THAT YOU ARE NOT TRANSFERRING YOUR PROPERTY OR THE
EQUITY IN YOUR PROPERTY WITHOUT THE PROPER
INFORMATION. IF YOU CANNOT AFFORD TO PAY AN ATTORNEY,
YOU MAY CONTACT (INSERT LOCAL OR NEAREST LEGAL AID OFFICE
AND TELEPHONE NUMBER) TO SEE IF YOU QUALIFY FINANCIALLY
- 29 -
FOR THEIR SERVICES. IF THEY CANNOT ASSIST YOU, THEY MAY
BE ABLE TO REFER YOU TO A LOCAL BAR REFERRAL AGENCY OR
SUGGEST OTHER OPTIONS. IF YOU CHOOSE TO CONTACT (NAME
OF LOCAL OR NEAREST LEGAL AID OFFICE AND TELEPHONE
NUMBER) FOR ASSISTANCE, YOU SHOULD DO SO AS SOON AS
POSSIBLE AFTER RECEIPT OF THIS NOTICE.
ORDERED at ……………….., Florida, on …..(date)……
___________________
Judge
NOTE: Paragraph 1 must be varied in accordance with the items unpaid, claimed,
and proven. The form does not provide for an adjudication of junior lienors’
claims or for redemption by the United States of America if it is a defendant. The
address of the person who claims a lien as a result of the judgment must be
included in the judgment in order for the judgment to become a lien on real estate
when a certified copy of the judgment is recorded. Alternatively, an affidavit with
this information may be simultaneously recorded. For the specific requirements,
see section 55.10(1), Florida Statutes; Hott Interiors, Inc. v. Fostock, 721 So. 2d
1236 (Fla. 4th DCA 1998).
Committee Note
2014 Amendment. This new form is to be used when the foreclosure
judgment re-establishes a lost note.
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FORM 1.996(bc). MOTION TO CANCEL AND RESCHEDULE
FORECLOSURE SALE
Plaintiff moves to cancel and reschedule the mortgage foreclosure sale
because:
1. On …..(date)….. this Ccourt entered a Final Judgment of Foreclosure
pursuant to which a foreclosure sale was scheduled for , 20 …..(date)…...
2. The sale needs to be canceled for the following reason(s):
a. Plaintiff and Ddefendant are continuing to be involved in loss
mitigation;
b. Defendant is negotiating for the sale of the property that is the
subject of this matter and Pplaintiff wants to allow the Ddefendant an opportunity
to sell the property and pay off the debt that is due and owing to Pplaintiff.
c. Defendant has entered into a contract to sell the property that is
the subject of this matter and Pplaintiff wants to give the Ddefendant an
opportunity to consummate the sale and pay off the debt that is due and owing to
plaintiff.
d. Defendant has filed a Chapter Petition under the
Federal Bankruptcy Code;
e. Plaintiff has ordered but has not received a statement of
value/appraisal for the property;
f. Plaintiff and Ddefendant have entered into a Forbearance
Agreement;
g. Other
3. If this Court cancels the foreclosure sale, Pplaintiff moves that it be
rescheduled.
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I hereby certify that a copy of the foregoing Mmotion has been furnished by
U.S. mail postage prepaid, facsimile or hand delivery…..(method of service)…. to
…..(name(s))….. this day of , 20 on …..(date)…...
NOTE. This form is used to move the court to cancel and reschedule a foreclosure
sale.
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