Florida Statute section 702.10 – Expedite Foreclosure Procedure

Florida Statute section 702.10 provides for an expedited procedure by which a mortgagee can seek to foreclose on a mortgage.  Through this statutory section, a mortgagee can accelerate a foreclosure case by moving the court to conduct a hearing to show cause, and if no cause shown, the mortgagee can obtain a final judgment of foreclosure.  Barrnunn, LLC v. Talmer Bank and Trust, et al., Case No. 2D12-446 (Fla. 2d DCA Feb. 1, 2013).

In that regard, section 702.10(1) provides that a mortgagee in a foreclosure proceeding may move the court for an order to show cause for the entry of final judgment.  Upon such request, the court is required to review the complaint, and if the complaint is verified and alleges a cause of action for foreclosure, the court must issue the order setting a date and time for a hearing.  The statute furthermore sets forth specific guidelines regarding when the hearing must be held; the hearing can be no later than 60 days after service of the order to show cause; it also sets forth various provisions that must be included in the order to show cause. 

When conducting the show cause hearing, the trial court is to engage in a two-part analysis: (1) The court must determine if the right to be heard has been waived as set forth in subsection (b) of section 702.10(1).  If the court determines that the defendant has waived that right, the court is obligated to enter final judgment for the plaintiff pursuant to subsection (d) of the statute.  (2) If there is no waiver, the court must then determine whether the defendant has shown cause not to enter the judgment; and where the defendant has filed defenses by motion at or before the hearing, subsection (b) of the statute makes it clear that the court is precluded from entering final judgment.  Barrnunn, LLC.

In Barnunn, LLC, the trial court entered a final judgment of foreclosure in favor of the mortgagee, Talmer Bank and Trust (“Talmer”).  On August 15, 2011, Talmer filed a complaint against Barnunn and others seeking to foreclose on a mortgage, and on the same day Talmer filed a motion pursuant to section 702.10(1) requesting that the trial court enter an order to show cause. Three days later, the order was entered setting the show cause hearing for October 5, 2011.  On September 30, 2011, Barnunn and another defendant filed a lengthy motion to dismiss the complaint, raising a number of issues including that allegations in the complaint were contradicted by exhibits attached to it.  Thereafter, the hearing was held, and the trial court entered a final judgment of foreclosure on January 11, 2012, finding in part that the motion to dismiss did not present any meritorious defenses.  Barnunn appealed, contending that it was error for the trial court to enter a final judgment after it had filed its motion to dismiss. 

On appeal, Talmer argues that the trial court properly used the show cause hearing to hear the defendant’s motion to dismiss, deny it as meritless, and enter a final judgment.  The appellate court disagreed on grounds that this interpretation conflicted directly with the clear and unambiguous language of subsection (b) which declared that the filing of defenses “constitutes cause and precludes the entry of a final judgment”.  Accordingly, the final judgment of foreclosure was reversed, and the cause was remanded for further proceedings.

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