Florida’s New Rules and Procedures Governing Mortgage Foreclosures

Lenders take heed: the Florida Supreme Court recently amended the Florida Rules of Civil Procedure governing mortgage foreclosures. Additionally, the high court promulgated several standard forms, which reflect the amended rules. The recent rule amendments and forms are in response to the recent legislation regarding mortgage foreclosures, including the new Section 702.015, Florida Statutes, which set forth the new pleading requirements for foreclosure complaints. The purpose of the statute is to “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.”[1]

For instance, Rule 1.110(b) was modified, as the language requiring verification of the foreclosure complaint under penalty of perjury was removed and incorporated into the new Rule 1.115(e). Rule 1.115 requires an allegation, in the complaint, that the claimant is the holder of the original note secured by the mortgage. Along with the complaint, the holder must “contemporaneously” file a certification of possession of the original promissory note, under penalty of perjury, with copies of the original note attached. Rule 1.115(c), Fla. R. Civ. P. The certification must set forth the location of the note, the name and title of the person making the certification, the name of the person who personally verified such possession, and the time and date on which possession was verified. Until there is guidance as to the interpretation of the term “contemporaneous”, as stated in the statute and new rule, mortgagees should file the certificate of possession and the complaint simultaneously. If the mortgagee seeks to enforce a lost, destroyed or stolen instrument, the claimant must specifically allege, under penalty of perjury, the chain of assignments or transfers giving rise to the claimant’s rights to enforcement the instrument. Rule 1.115(d), Fla. R. Civ. P.

Fortunately, the Court made revisions to several forms to reflect the new statutory pleading requirements. Forms 1.944(a) and (b) were revised to detail and allege the claimants’ standing to enforce the note and mortgage with specificity. Note that Form 1.994(b) includes an “Affidavit of Compliance”. Form 1.944 (a) and (d), the “Motion for Order to Show Cause” and the “Order to Show Cause” forms reflect compliance with Section 702.10(1), Florida Statutes. Form 1.996(a), “Final Judgment of Foreclosure”, was modified with added titles, updated statutory reference to time for right of redemption and an added paragraph on attorneys’ fees.  Lastly, Form 1.996(b), “Final Judgment of Foreclosure for Reestablishment of Lost Note”, was revised significantly to be used when the foreclosure judgment re-establishes a lost note.

These recent additions and amendments have resulted in significant changes to the rules and forms regarding foreclosures, and the rules are effective as of December 11, 2014. Lenders and mortgagees should carefully review these new rules and seek qualified counsel for guidance.

[1] Ch. 2013-173, § 3, Laws of Fla.