Rogers Towers: HB 87 – A Summary of Florida’s New Foreclosure Law – Part 2: A Closer Look at F.S. 702.015

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One of the new statutes created by HB 87 is 702.015. I referenced this in a prior blog post on July 11, 2013. In reviewing the statute in detail, I find it somewhat unclear as to whether the statute applies only to residential foreclosures or to both residential and commercial foreclosures, depending upon which section is being considered.

Section 1 states the legislative intent behind the statute, that being to expedite the “foreclosure process” with no distinction between residential and commercial cases. Section 2 specifically states that it applies only to residential cases and requires that foreclosure complaints involving one to four family residential dwellings (including condominiums and cooperatives) contain certain specific allegations that the plaintiff is the holder of the original note at the time the suit is commenced. In addition, the complaint must specify the factual basis by which the plaintiff is the person with standing to enforce the obligation. Section 3 does not specifically differentiate between residential and commercial cases and it states that a party that has been “delegated the authority to institute a mortgage foreclosure action” must identify the document that grants the authority to act on behalf of person entitled to enforce the note. Section 4 states that if the plaintiff has the original note in its possession, it now must file an affidavit certifying its possession. This must be filed at the time the complaint is filed and must comply with the informational requirements of the statute copies of the original note and all allonges must be attached to the certification (and, by implication, the complaint as well). Again, Section 4 does not differentiate between residential and commercial cases. Nor does Section 5, which says in cases where the original note is lost, the plaintiff must attach to the complaint an affidavit detailing the chain of endorsements, transfers or assignments of the note and setting forth facts to show that the plaintiff is entitled to enforce the instrument with copies of all documents evidencing the plaintiff’s entitlement attached to the affidavit. The remaining sections, 5 and 6, deal with sanctions which may be imposed upon a plaintiff for non-compliance and the exemption of timeshare foreclosures from the statute.

Was the specific reference in Section 2 to residential cases intended to carry throughout the remaining sections of the statute or was the true intent to limit only Section 2 to residential cases and have the remaining sections applicable to all cases? Until we have some case law for guidance, practitioners may find it best to simply apply the requirements of F.S. 702.015 to all cases, regardless of whether they involve residential or commercial property.

Topics:  Foreclosure, Mortgages, New Legislation

Published In: Finance & Banking Updates, Residential Real Estate Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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