HB 0337 and SB 968, if enacted, would amend Florida Statutes 718.116 by providing condominium owners who are delinquent on their assessments an opportunity to receive a “notice of delinquency”.  The notice would specify each assessment sought by the association, the date of the assessment or charge, and the corresponding interest, fee and cost attached to such unpaid assessments.  Notice would need to be provided prior to any restriction, penalty or condition being placed upon that unit owner.  It also would prohibit a condominium association from imposing penalties during a 20 day notice period or while an objection made during the notice period is unresolved.  The notice requirement would not apply if the association has been in lien collection or foreclosure proceedings against the same unit owner within the proceeding 12 months or if the unit owner acknowledges in writing he or she owes the debt to the association.  Once past the notice period, delinquent unit owners could be restricted from running for office, holding office, serving on committee, leasing their unit or using common areas.

The Senate version of the bill is passing through committee and is presently with the Judiciary Committee.  The House version of the bill is now in the Criminal and Civil Justice Policy Council.   So far, other than minor editing of the language, both versions of the bill are being treated fairly favorably.

Condominium Association boards should also be aware that there are numerous other potential bills that may affect their governance.  To contact your legislator on any of these issues or to review these bills or track their progress, go to online sunshine at http://www.leg.state.fl.us.

Please contact Bogin, Munns and Munns if you desire a legal opinion or analysis of these bills or how these proposed laws would effect your association.  With nine offices including South Daytona and Melbourne, Bogin, Munns and Munns can assist condominium associations in our coastal communities navigate these proposed legislative changes.

– Jeremy Hill, Esq., is a personal injury attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Mr. Hill works out of our Daytona office.  He welcomes questions and comments regarding the above and can be reached at jhill@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement.

You have a home that you are leasing to a tenant.  Your tenant fails to pay you rent and refuses to vacate the property.  You may or may not be able to evict the tenant for non-payment or otherwise remove the tenant from the property.  Your ability to do so greatly depends on the type of written agreement entered into by and between you and the tenant.

If you entered into a typical written lease agreement with your tenant, you would most likely be able to evict the tenant after giving the tenant the proper 3 day notice to pay rent or vacate.  You may thereafter file an action for possession with the county court to regain possession of the property.  This eviction procedure is on an expedited docket and may be completed in less than 30 days.

If the lease agreement contains an option to purchase, however, you may find that you are prevented from filing an eviction due to the tenant’s timely exercise of its option to purchase.  A lease with an option to purchase is typically entered into when a buyer wants to purchase the home but needs some time to acquire a down-payment or build up his credit score.  The lease with an option to purchase gives the buyer the right to purchase the property from the owner within a certain period of time at a mutually accepted purchase price.

Under Florida law, once the tenant exercises its option to purchase, the tenant is then considered an equitable owner of the property and cannot be evicted.  The proper legal method for removing the tenant in this instance is ejectment.  Ejectment is a statutory remedy found under Florida Statute Ch. 66 providing a person with a superior title interest in a property to request that the court order the current occupant to vacate the property restoring possession to the superior title owner.  The occupant, however, may file a betterment petition with the court seeking reimbursement for the value of the improvements made by the occupant to the property while possessing the property.  Ejectment actions are also under the jurisdiction of the circuit court and not the county court.  Thus, these actions usually are more time consuming and expensive to prosecute.

It is imperative that a landlord/owner of a property consult with a competent real estate attorney to determine their rights, obligations, and remedies concerning rental property issues prior to entering into any agreement with a prospective tenant.

– Henry M. Cooper, Esq., is a shareholder and handles the residential real estate practice of Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  He welcomes questions and comments regarding the above and can be reached at hcooper@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement.

In most situations, unfortunately, yes.

Florida Courts, traditionally, have said that the owner of a motor vehicle is responsible for accidents and injuries caused by that vehicle, even when the vehicle is driven by a friend or family member. The courts have gone so far as to state that when a vehicle is used negligently, it becomes a “dangerous instrumentality” on the roadway.

For years, rental car companies were held to that standard, and they shared in the responsibility for accidents caused by vehicles that they owned. This changed dramatically on August 10, 2005, when a new federal highway improvement law was enacted (The Safe, Accountable, Flexible, Efficient Transportation Equity Act, 49 U.S.C. sec. 30106). This is a federal law, designed, in part, to improve roadways, which also included an amendment protecting rental car companies. The rental car companies were no longer responsible for damage done by their drivers, and lawsuits were not allowed against the companies.

Of course, there was an exception to this new rule, which is currently being litigated in courts across the country, including the Florida Supreme Court. The protection of these companies was limited in certain states;  in some states, you could continue to sue the company, and in others, you could not. In the first year following this new law, the Florida trial courts were divided on whether you could still sue a rental car company in our state. Some courts allowed lawsuits, some did not.

In law school, we learn that there are 2 sides to every argument. So, here is the reasoning behind the 2 sides of the argument. Those who support the federal law are concerned about holding the vehicle owner responsible, when it is an individual driver who caused the accident. In addition, they believe that the rental and leasing industry is important, and needs to be protected.

The side that opposes the federal law believes that it is an unfair stretch of federal power, and interferes with state laws and state rights. Traditionally, concepts like negligence and responsibility for accidents have been a part of the state law system. Also, this side believes that the victim of the accident needs to be protected, and preventing lawsuits against the owner of the vehicle could result in victims suffering significant medical expenses and pain and suffering, with no adequate remedy.

Currently, the application of this law is being challenged in the Vargas case (Rafael Vargas v. Enterprise Leasing Co., 993 So. 2d 614 (Fla. 4^th DCA  2008)) which was heard by the Florida Supreme Court on March 1, 2010. This case has already been presented to a trial court and an appellate court in Florida. Both courts have agreed with Enterprise, and ruled that a lawsuit against the company was not allowed.

Now, we wait and see what the Court has to say. Unless they decide to overrule the appellate court, rental car companies, not victims, will continue to be protected in Florida.

William Galione, Esq., is an experienced personal injury attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Mr. Galione works out of the Gainesville office of the firm and welcomes questions and comments regarding the above and can be reached at wgalione@boginmunns.com .

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

You may not recall the information you provided on your insurance application, but your insurance company does.  If you neglected to provide full and accurate responses to the questions on your application for insurance, you may not have insurance coverage. Insurance companies are allowed to void an insurance policy if the company finds that a there was a material misrepresentation made in the insurance application. [1] A material misrepresentation is defined as a misrepresentation, omission or concealment of fact that would have changed the insurance premium charged and/or caused the insurance company to decline coverage.  Whether you did or did not intend to omit information or mislead the insurance company is of no consequence.  The only issue is whether the information, if known, would have changed the insurance premium or caused the insurer to decline coverage.

Any inaccurate or incomplete response to the questions on your insurance application may constitute a material misrepresentation. The most common misrepresentation is the failure to list all of the people living in your residence.  Insurance companies do not have a certain period of time to discover or notify you of the material misrepresentation.  Typically insurers discover material misrepresentations once you make a claim for insurance coverage.   It is possible and very common for someone to pay insurance premiums for years only to have their insurance company void their insurance coverage once a claim is made.  A material misrepresentation can cause you to be uninsured when you need insurance the most.

Do not think you have insurance coverage, know you have insurance coverage.  If you are applying for insurance, answer all of the questions on the application completely.  Do not dismiss questions as being unimportant.  Do not believe a representative that tells you certain information is not necessary.  Provide all of the information requested on the insurance application.  Retain a copy of the insurance application and the business card of the insurance agent for your records.  Once you have insurance, review the insurance policy to make sure it accurately reflects the information you provided to the insurance company.  If not, notify the insurance company of the errors in writing.

If you already have insurance, request a copy of your insurance application from all of your insurance companies.  Review your responses.  If there is any information that is incomplete or has changed, send your insurance company a letter correcting or supplementing your insurance application.  These changes may result in your insurance premiums increasing or your insurance company declining coverage.  However, it is better to pay more or get new insurance than to have an insurance policy that may be voided.

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[1] When the insurance company voids a policy, the insurance company will reimburse the insurance premiums paid, but they will not provide insurance coverage for the claim.  The value of the insurance coverage is often greater than the premium reimbursement.

– Aaryn Fuller, Esq., is an experienced personal injury attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  She welcomes questions and comments regarding the above and can be reached at afuller@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement.

Typically, a realtor/property manager conducts a detailed investigation concerning the prospective buyer/tenant to ensure that this person is capable of performing his obligations under the subject transaction.  However, how many realtors/ property managers perform the same due diligence with their clients?  In this market, it is vital that you as a realtor/property manager perform proper due diligence when asked by an owner to sell and/or manage a residential property.  At minimum, prior to accepting the listing/management agreement you should perform the following due diligence of your potential client:

1.         Research the public records to ensure that your client is the title owner of record to the property.

2.         If you have a corporate client, make sure the person you are dealing with is the authorized representative of the company.

3.         Research the clerk of the county court records to verify your client does not have a pending foreclosure suit, Notice of Lis Pendens, or bankruptcy.

4.         Research the county tax records to determine if your client is current on his taxes.  If not, that is the first red flag.

5.         Call the homeowners association and find out if your client is current on his assessments.  This is also a sign that your client is experiencing financial difficulty.

6.         Request from your client proof of payment of the last 4-5 mortgage payments to determine whether he is delinquent or not.

7.         Request from your client a current certificate of insurance on the property.  You do not want to manage an uninsured property.

Florida real estate law and regulations are very comprehensive and contain very specific requirements that are constantly evolving.  It is imperative that a realtor or property manager consult with a competent real estate attorney concerning rental property issues.

– Henry M. Cooper, Esq., is a shareholder and handles the residential real estate practice of Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  He welcomes questions and comments regarding the above and can be reached at hcooper@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement.

Have you heard in the news that you can get paid for letting your home go through foreclosure?  There is a new government program that does provide financial incentives to the borrower.  The U.S. Treasury Department issued Supplemental Directive 09-09 which is being called HAFA.  HAFA is a part of a previous program called HAMP (Home Affordable Modification Program).

HAMP provided guidelines for Loan Modifications while HAFA provides guidelines for Short Sales and Deeds-in-Lieu of Foreclosure.

• A “Loan Modification” is where the borrower keeps the house and the mortgage but the terms of the mortgage are changed to make the payment more affordable.
• A “Short Sale” is where the home is sold for less than is owed on the mortgage.  This is done with the mortgage lender’s approval.
• A “Deed-in-Lieu of Foreclosure” is where the borrower gives the home to the mortgage lender in exchange for canceling the mortgage loan.

The lender must first evaluate the borrower for a Loan Modification under HAMP.  The new HAFA directives will require lenders to then consider whether a borrower is eligible for a Short Sale or a Deed-in-Lieu.  The new HAFA directives will take effect on April 5, 2010, and expire on December 31, 2012.

All of the following criteria must be met to be eligible for HAMP and HAFA:

1. The home is the borrower’s homestead property;
2. The mortgage is a First Mortgage originated before Jan. 2, 2009;
3. The mortgage is delinquent or reasonably will be in the future;
4. The current mortgage balance is less than $729,750.01; and
5. The mortgage payment exceeds 31% of the borrower’s gross income.

If a borrower qualifies for a Short Sale under the new HAFA directives, the lender will be required to forgive any deficiency on the mortgage loan.  This will be a big help to borrowers because many borrowers who sold their home in a Short Sale are now being pursued by collections agencies to collect the deficiencies owed to the banks.  The HAFA Short Sale directives prohibit the lenders from reducing Realtor commissions below 6% and provide the following financial incentives:

1. • $1,500 for borrower relocation assistance
   • $1,000 for services to cover administrative and processing costs
   • $1,000 match for investors for allowing a total of up to $3,000 in short sale proceeds to be distributed to 2^nd mortgage holders

The new directives require the borrower to make an effort to sell the home through a Short Sale before they can sign a Deed-in-Lieu of Foreclosure.  If the lender accepts a Deed-in-Lieu (DIL) under the new HAFA directives, the lender may not require a cash contribution or promissory note from the borrower and must forfeit the ability to pursue a deficiency judgment against the borrower.

The borrower may request their lender evaluate whether they are eligible for a Short Sale or DIL.  If the borrower is not eligible, then the lender must notify them in writing and explain why.

Bogin, Munns & Munns, P.A. is a full-service law firm with experienced commercial lawyers who represent many banks and mortgage lenders.  If you are a loan servicer who is interested in legal representation and assistance with the HAMP and HAFA directives, you can call our office at (407) 578-1334 to schedule a consultation.

– Zana Dupee, Esq., is an experienced attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Mrs. Dupee works out of the Gainesville office of the firm and welcomes questions and comments regarding the above and can be reached at zdupee@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

1. Use caution when proceeding through intersections, look to the left, then right, then left again.
2. When stopping at a traffic light and the light changes to green, use the “5 second rule” and wait 5 seconds before proceeding.
3. Leave a safe distance between your car and others.  A general rule is for every 10 miles per hour of speed, leave at least one car length space between your vehicle and the vehicle ahead.
4. Maintain a constant speed.  Don’t continually slow down or speed up.
5. Don’t encourage or participate in aggressive driving.
6. Properly maintain your vehicle, including checking the tire pressure and tire condition.
7. Adjust the seats and mirrors.
8. Be aware of road conditions and reduce your speed below the speed limit if the road conditions warrant doing so.
9. Keep your lights on at dusk and dawn and during the rain.
10. DO NOT DRINK AND DRIVE!
11. Look, as far ahead as possible while driving, this will give you the maximum amount of time to react.  Keep your eyes moving; do not fix your eyes on only one spot.
12. Pull over when using your cell phone, picking up items from the floor, checking maps, changing music, eating or engaging in personal grooming.
13. Make certain your children are properly restrained in the back seat so they will not be a distraction.
14. Avoid being late which will increase the chance of careless driving.

– Alida Darias, Esq., is an experienced personal injury attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Ms. Darias works out of the Clermont office of the firm and welcomes questions and comments regarding the above and can be reached at adarius@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

My first boss always told clients that there are three things you need for any claim.  First, you need liability.  Somebody had to do something wrong.  In a car accident this usually means someone hit you from behind, ran a stop sign or red light, or otherwise engaged in some improper driving.  If someone has fallen in a store or other facility, this element is sometimes often hard to explain.  The general public, and even some lawyers (who are misinformed), believe that just because you fell on their property and got hurt that they are responsible.  This is not true.  The store operator must have done something wrong that caused or contributed to the injury.  Often times this may be that they failed to correct a dangerous condition that they could have discovered with reasonable effort.  For example, where a freezer is leaking water and a small puddle accumulates causing someone to slip, that is going to create a tough question for the jury.  However, the larger the puddle, the longer that the condition was there to have been discovered by the store operator.  If it can be shown that the store operator would have discovered it with reasonable inspections, and did not, then they have done something wrong, and hence have at least some liability in the matter.

The second element that is required is that you have to have damages.  Generally in my personal injury practice this means you have to be injured as a result of the liability mentioned above.  If you were in an automobile accident with no damage to you or the car, you have no claim regardless of how wrong it was for the other driver to have run into you.

The third element is some source of money to pay for the damages.  If you were rear ended by someone going 100 miles per hour, and have a broken leg and a broken arm, but the person that hit you has no insurance, no money, and you have no uninsured motorist coverage, you have no way to recover on your claim.  Certainly you would be entitled to take that person to court (which could cost thousands of dollars).  You would get a piece of paper called a judgment that would say that person owes you lots of money, but you could not get that person to pay you money they do not have.

– Mark Cornelius, Esq., is an experienced personal injury attorney and shareholder with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Mr. Cornelius works out of the Orlando office of the firm and welcomes questions and comments regarding the above and can be reached at mark@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

The residential leasing market has been dramatically changed due to the Great Recession that has given rise to new laws and regulations promulgated by the federal government.  Now more than ever, residential rental property managers need to be aware of these new laws and regulations to avoid unintended legal consequences for themselves and their clients.

The Fair Credit Report Act was amended to include new identity theft regulations.  Officially titled “Identity Theft Red Flags and Address Discrepancies Under the Fair and Accurate Credit Transactions Act of 2003” (the “Act”), this Act was created to detect, prevent, and mitigate identity theft for all users of credit and other consumer report information.  As this type of information is routinely used by residential property managers to verify the financial ability and background of a prospective tenant, the Act imposes certain requirements on residential property managers to detect, prevent, and mitigate “Red Flags”.  The Act defines a Red Flag as a “pattern, practice, or specific activity that indicates the possible existence of identity theft.”

The Act requires that the residential rental property manager have certain reasonable policies and procedures in situations where the residential rental property manager obtains a prospective tenant’s personal identifiable information from a credit or other consumer report.  These reasonable policies must include the ability to (a) identify relevant Red Flags that may occur when the residential rental property manager obtains the personal identifiable information from the prospective tenant, (b) detect any Red Flags upon review of the provided personal identifiable information from the prospective tenant, (c) appropriately respond to any detected Red Flags, and (d) update the policy to reflect changes in risks to the rental property owner and the residential rental property manager.  It is highly recommended that you document these policies and procedures in writing.

One of the more common Red Flags is an address discrepancy.  The residential rental property manager must have reasonable verification and fraud prevention policies in place to verify a prospective tenant’s identity when there is a discrepancy in the prospective tenant’s address.  In most circumstances, the Red Flag will occur when the residential rental property manager receives a Notice of Address Discrepancy from a consumer reporting agency.  This Notice informs the residential rental property manager that there is a discrepancy between the address found in the tenant’s credit report and the address listed on the rental application.  To comply with the Act, the residential rental property manager may (a) verify the information contained in the credit report directly with the prospective tenant, or (b) compare the information contained in the credit report with other information found in other reports or sources (e.g. drivers license).  The residential property manager, however, does not have a duty to report any discovered fraud.

Fortunately, the date for mandatory compliance for this Act has been extended until June 2010 by the Federal Trade Commission.  This enables the residential rental property manager to have sufficient time to retain the services of a real estate attorney to assist them with the development of these policies to ensure compliance with this Act.

– Henry M. Cooper, Esq., is a shareholder and handles the residential real estate practice of Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  He welcomes questions and comments regarding the above and can be reached at hcooper@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement.

On February 11, 2010, the Florida Supreme Court made significant changes to the Florida Rules of Civil Procedure as they pertain to initiating new residential foreclosure actions in Florida’s Courts.  The Court’s opinion follows a series of changes that are being made on the local court level to stave off the glut of residential foreclosure filings that are clogging the court system.

In its recent opinion, the following rule changes are made applicable to new residential foreclosure filings:

• Fla. R. Civ. P. 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. This means that the lender must swear to, or “verify”, the veracity of the factual allegations being made in the complaint.   The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.
• Form 1.924 – Affidavit of Diligent Search, is modified as follows.  First, the form is standardized and thus more user-friendly.  There is a new section for the affiant to insert the “Attempts to Serve Process and Results”.  There is also a “catch-all” section for the affiant to list all additional efforts made to locate defendant.   Furthermore, there is now a section which reads: “I inquired of the occupant of the premises whether the occupant knows the location of the borrower-defendant, with the following results: ________.”   A major change is also that the Affidavit of Diligent Search is now signed by the person who actually performed the search – likely a process server – and not the attorney on the case who may not have personal knowledge of the process server’s efforts.
• The opinion now requires the use of a new form, 1.996(b) – Motion to Cancel and Reschedule Foreclosure Sale.  A party cancelling a foreclosure sale is required to provide a reason for the cancellation.  Said the Court:     Currently, many foreclosure sales set by the final judgment and handled by the clerks of court are the subject of vague last-minute motions to reset sales without giving any specific information as to why the sale is being reset. It is important to know why sales are being reset so as to determine when they can properly be reset, or whether the sales process is being abused. . . . Again, this is designed at promoting effective case management and keeping properties out of extended limbo between final judgment and sale.
• The opinion adopted a new form of Final Judgment of Foreclosure.  This new form has many changes to include clarity, bring the form in line with current statutory provisions and requirements, increase readability, and to conform to prevailing practices in the courts.

These amendments went into effect upon release of the Court’s opinion on February 11, 2010.