IN THE SUPREME COURT OF FLORIDA

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1 Filing # E-Filed 01/29/ :46:37 PM IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE / Case No. SC COMMENTS OF THE SIXTH JUDICIAL CIRCUIT ON AMENDMENTS TO RULES OF CIVIL PROCEDURE RECEIVED, 01/29/ :48:32 PM, Clerk, Supreme Court Pursuant to this Court s invitation for comments on the amendments to Rules of Civil Procedure (General Rules of Pleading), (Pleading Mortgage Foreclosure Cases), Form 1.944(a) (Mortgage Foreclosure--when location of original note known), Form 1.944(b) (Mortgage Foreclosure--when location of original note unknown), Form 1.944(c) (Motion For Order To Show Cause), Form 1.944(d) (Order To Show Cause), the Honorable J. Thomas McGrady, Chief Judge of the Sixth Judicial Circuit, by and through undersigned counsel, files these Comments on the amendments to the Florida Rules of Civil Procedure Forms. I. Rule of Civil Procedure Form 1.944(a) Form 1.944(a) has been created to assist plaintiffs preparing complaints for mortgage foreclosure when the location of the original note at issue is known. Section (2), Florida Statutes, requires the plaintiff to either allege it is the actual holder of the original note or allege the specific factual basis of the

2 plaintiff's entitlement to enforce the note under Section , Florida Statutes. If the entity or person entitled to enforce the note has delegated authority to institute the foreclosure action to the plaintiff, Section (3), Florida Statutes, requires the plaintiff to describe the delegating authority and identify the document granting the plaintiff enforcement authority. Paragraph 3 of Form 1.944(a) allows the plaintiff to select one of three options, (a), (b), or (c). Subparagraph (a) asserts that the plaintiff is the holder of the note, subparagraph (b) asserts that the plaintiff is entitled to enforce the note under applicable law, and subparagraph (c) indicates that the plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of a person entitled to enforce the note. However, subparagraph (c) does not require the plaintiff to identify the person or entity delegating that authority as either the actual owner/holder of the original note, or, if the delegator is not the actual owner/holder, require the plaintiff to allege with specificity the factual basis by which the delegator would be otherwise entitled to enforce the note under Section (2), Florida Statutes. Form 1.944(a) should require the plaintiff to set forth the allegations required by Subsections (2) or (3), Florida Statutes. Failure to allege in a complaint that the person or entity delegating the authority to the plaintiff has standing to institute a foreclose action could result in the filing of unauthorized 2

3 actions. The Sixth Judicial Circuit suggests amending subparagraph (c) and adding new subparagraph (d) as follows: (c) Plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of..... (name of owner/holder)... the actual owner/holder of the original the person entitled to enforce the note. The document(s) that grant(s) plaintiff the authority to act on behalf of the holder of the original the person entitled to enforce the note is/are as follows (d) Plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of.... (name of non-owner/non-holder)... who is not the owner/holder but is the person or entity entitled to enforce the note under section (2), Florida Statutes, because.... (allege specific facts)... The document(s) that grant(s) plaintiff the authority to act on behalf of the person entitled to enforce the note is/are as follows (Suggested additions are underlined and deletions marked with strikethrough). These modifications clarify that when delegated the authority to institute a mortgage foreclosure action, the plaintiff must identify the delegating authority entitled to enforce the note and, if applicable, assert that the delegating authority is not the original owner/holder of the note but is entitled to enforce it under Section (2), Florida Statutes. 3

4 II. Rule of Civil Procedure Form 1.944(b) Form 1.944(b) has been created to assist plaintiffs prepare complaints for foreclosure of a mortgage when the location of the original note is unknown. Pursuant to Section (1)(a), Florida Statutes, a plaintiff is entitled to enforce a lost, destroyed, or stolen instrument if "[t]he person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred." Section (5)(b), Florida Statutes, requires the plaintiff to set forth facts in the complaint showing that the plaintiff is entitled to enforce the instrument under Section , Florida Statutes. Paragraph 5 of the Form includes four options to describe the plaintiff's authority to institute the foreclosure action on the lost, destroyed, or stolen note. Subparagraph 5 (d) sets forth the plaintiff's standing when the authority to institute the action has been delegated. However, as with Form 1.944(a), discussed above, subparagraph 5 (d) does not identify the person or entity delegating such authority as either the holder of the original note when it was lost, destroyed, or stolen; or as the person or entity entitled to enforce the note when it was lost, destroyed, or stolen, in accordance with Section (1)(a), Florida Statutes. 4

5 Form 1.944(b) should require plaintiffs to set forth the allegations required by statute. Failure to include those allegations in complaints could result in the filing of unauthorized actions. The Sixth Judicial Circuit suggests amending subparagraph 5 (d) and adding new subparagraphs 5 (e) and 5 (f) as follows: (d) Plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the holder of the original note at the time it was lost, destroyed, or stolen. person entitled to enforce the note, and t The document(s) that grant(s) plaintiff the authority to act on behalf of the person entitled to enforce the note is/are as follows.. (attach documents if not already attached). (e) Plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person or entity entitled to enforce the note under applicable law because...(allege specific facts)... at the time it was lost, destroyed, or stolen. The document(s) that grant(s) plaintiff the authority to act on behalf of the person entitled to enforce the note is/are as follows. (attach documents if not already attached). (f) Plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person or entity who directly or indirectly acquired ownership of the note from a person or entity that was entitled to enforce the note when loss of possession occurred as follows:..(allege facts as to transfer of ownership).. The document(s) that grant(s) plaintiff the authority to act on behalf of the person entitled to enforce the note is/are as follows. (attach documents if not already attached). (Suggested additions are underlined and deletions marked with strikethrough). These amendments would more fully set forth the possible circumstances in which a plaintiff may have been delegated authority to enforce a note under Section (1)(a), Florida Statutes. The plaintiff must allege those to satisfy the pleading requirements of Section , Florida Statutes. 5

6 III. Rule of Civil Procedure Form 1.944(c) Form 1.944(c) has been created to assist lienholders in the preparation of a "Motion for Order to Show Cause for the Entry of Final Judgment of Foreclosure." Section (1) sets forth in detail the required content of a lienholder's request for an Order to Show Cause against defendant(s) for the Court to summarily enter a final judgment of foreclosure. The statute does prohibit a lienholder from requesting such an Order if the residence is owner-occupied. Paragraph 7 of Form 1.977(c) requires the lienholder to state that the subject property "is not a residential property for which a homestead exemption for taxation was granted according to the rolls of the latest assessment by the County Property Appraiser." This is an improper restriction on the lienholder's ability to file a Motion for Order to Show Cause under Section (1), Florida Statutes. Section (2), Florida Statutes, prohibits a lienholder from obtaining an Order to Show Cause to require defendant(s) to make prejudgment payments during the pendency of the foreclosure action or to vacate the premises if the residence is owner-occupied, but there is no such prohibition for entry of a final judgment of foreclosure under Section (1), Florida Statutes. The show cause process under Section (1), Florida Statutes, only leads to a potential foreclosure judgment, not to prejudgment payment orders, and the residential/owner-occupied 6

7 property exclusion does not apply. The Sixth Judicial Circuit suggests omitting Paragraph 7 from Form 1.977(c). IV. Rule of Civil Procedure Form 1.944(d) Form 1.944(d) has been created to assist lienholders in the preparation of proposed orders to show cause why a final judgment of foreclosure should not be summarily entered pursuant to Section (1). Paragraph 10 of the Form contains the Court s finding that the subject property "is not a residential property for which a homestead exemption for taxation was granted according to the rolls of the latest assessment by the county property appraiser." As discussed above, this finding is not required for an entry of an order to show cause under Section (1), Florida Statutes. The Sixth Judicial Circuit suggests deleting Paragraph 10 from Form 1.977(d). V. Suggestions for New Forms The Sixth Judicial Circuit suggests creating additional forms to assist litigants in the preparation of motions for orders to show cause pursuant to Section (2), Florida Statutes, why defendant(s) should not be required to make prejudgment payments during the pendency of the foreclosure action or to vacate the premises. A form for preparation of a proposed "Order to Show Cause" under Section (2) would also be helpful to litigants. 7

8 CONCLUSION For the reasons stated above, the Sixth Judicial Circuit respectfully requests the Court to consider the amendments suggested above and consider adopting additional forms to assist litigants with preparation of a Section (2) "Motion for Order To Show Cause" and a proposed "Order to Show Cause" why defendant(s) should not be required to make prejudgment payments during the pendency of the foreclosure action or to vacate the premises. Respectfully submitted this 29th day of January, /s/ J. Thomas McGrady J. Thomas McGrady, Chief Judge Sixth Judicial Circuit th Street North Clearwater, FL Telephone: (727) memge@jud6.org Florida Bar No.: /s/ Michael L. Emge Michael L. Emge, Sr. Staff Attorney Sixth Judicial Circuit st Avenue North Suite 1000 St. Petersburg, FL Telephone: (727) memge@jud6.org Florida Bar No.:

9 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing COMMENTS OF THE SIXTH JUDICIAL CIRCUIT ON AMENDMENTS TO RULES OF CIVIL PROCEDURE has been furnished by to The Florida Bar s Civil Procedure Rules Committee Chair, Kevin B. Cook, Rogers Towers, P.A., 818 A1A N., Suite 208, Ponte Vedra Beach, FL , kcook@rtlaw.com; and The Florida Bar Staff Liaison to the Committee, Ellen Sloyer, 651 E. Jefferson St., Tallahassee, FL , esloyer@flabar.org, this 29th day of January, /s/ Michael L. Emge Michael L. Emge, Sr. Staff Attorney Sixth Judicial Circuit st Avenue North Suite 1000 St. Petersburg, FL Telephone: (727) memge@jud6.org Florida Bar No.:

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