Florida Foreclosure Laws Affected by Governor Scott's Signing of HB 87

19 June 2013 Publication
Author(s): Mark J. Wolfson

Legal News Alert: Bankruptcy & Business Reorganizations

On June 7, 2013, Florida Gov. Rick Scott signed HB 87, affecting the state’s foreclosure laws. By its terms, the statute is effective immediately. Below are some of the highlights:


Fla. Stat. 702.06 is revised to state that in the case of owner-occupied residential property, the amount of the deficiency may not exceed the difference between the judgment and the FMV as of the date of the sale. There is also a rebuttal presumption that a residential property for which there is a homestead exemption is an owner-occupied property.

Finality of Mortgage Foreclosure Judgment

Fla. Stat. 702.036 is created to clarify the finality of mortgage foreclosure judgments. Specifically, any action to set aside, invalidate, or challenge the validity of a final judgment of foreclosure or to re-establish a lien or encumbrance is relegated only to monetary damages if certain conditions are met: 1) proper service, 2) final judgment was to the property, 3) appeals periods have run, and 4) a non-affiliated third-party bidder purchased the property. The statute then goes on to address the rights of the true owner/holder when that final judgment is received via a lost note affidavit.

Limitations on Deficiencies (Residential)

Fla. Stat. 95.11(5)(h) is created so that a plaintiff has one year in which to institute a deficiency claim on a residential property. This provision is particularly important for those loans that have an SBA or other government junior, as the same may have a one-year redemption period.

Lost Note Affidavits (Residential)

Fla. Stat. 702.015 is created to address a lost note affidavit for residential loans. First, the complaint must contain affirmative allegations as to it holding/owning the note and its entitlement to enforce them. Second, in the alternative, the complaint must contain allegations as to how the right to sue was delegated to the plaintiff if it is now the owner/holder. Third, contemporaneously with the complaint, a plaintiff must file a certification regarding the original note. Fourth, contemporaneously with the complaint, a plaintiff must file its lost note affidavit.

Lost Note Indemnification

Fla. Stat. 702.11 is created to state lost note indemnification means 1) a written indemnification agreement, 2) a surety bond, 3) a letter of credit, 4) deposit or cash collateral, or 5) other security the court deems appropriate.

Order to Show Cause

Fla. Stat. 702.10 is revised to enlarge the order to show cause provisions. The statute now expands the right to an OSC to all lienholders (i.e., condo/HOA). The statute also addresses the timing and responses to an OSC.

Rules of Civil Procedure

HB 87 concludes by requesting revisions to the Florida Rules of Civil Procedure to provide expedited foreclosure proceedings and develop additional forms to use.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and our colleagues. If you have any questions about this update or would like to discuss this topic further, please contact your Foley attorney or the following:

Mark J. Wolfson
Tampa, Florida