Filing a Foreclosure Lawsuit? Make Sure You Check the Local Rules

In Florida, mortgage foreclosure lawsuits are filed in the county where the property is located. Although Florida foreclosures are governed by Chapter 702 of the Florida Statutes, foreclosing lenders must also check the local rules of the court where the lawsuit is filed to make sure that they comply with any additional requirements.

What is the Filing Fee?

All mortgage foreclosure complaints must be accompanied with a filing fee. However, the filing fee varies depending on the value of the claim and the court. For example, in Duval County, the filing fee is: $300.00 for a claim amount up to $30,000; $401.00 for a claim between $30,000-$50,000; $906.00 for a claim between $50,000-$250,000; and $1,906.00 for a claim greater than $250,000. In addition, foreclosing lenders in Duval county will be required to pay an additional $140.00 sale fee at the time of filing the complaint.

Is Mediation Mandatory?

As of December 2011, the Supreme Court of Florida abolished the statewide mandatory mediation program for foreclosure lawsuits.  However, it is important for foreclosing lenders to check the local rules because some circuit courts may have adopted their own mandatory mediation program.

For example, the Tenth Judicial Circuit (Hardee, Highlands, and Polk counties), enacted its own homestead residential mortgage foreclosure mediation requirements. In the Tenth Circuit, the clerk of the court is required to attach a notice regarding the availability of mediation to all summons to be served on defendants in a foreclosure lawsuit. Either party may file a motion to the court within 30 days of service on the borrower of the mortgage foreclosure lawsuit, requesting that the lawsuit be referred to mediation.

How Can a Foreclosure Sale be Cancelled and Rescheduled?

A foreclosing lender may cancel and reschedule a mortgage foreclosure by filing a written motion with the court in accordance with Florida Rules of Civil Procedure, Form 1.996(c). However, some courts in Florida have expanded the requirements for cancelling and rescheduling foreclosure sales.

For example, in the Sixth Circuit (Pasco and Pinellas counties), a motion to cancel and reschedule a foreclosure sale must state the number of times the foreclosing plaintiff has previously requested cancelation of a sale and must include an affidavit with supporting grounds of the motion. Any proposed order prepared to cancel the foreclosure sale must include a date to reschedule the sale or include a blank space for a date to be filled in by the court or clerk. Further, the failure to publish a notice of sale in a newspaper is not a ground for canceling the foreclosure sale and does not impair the clerk’s authority to issue a certificate of sale. See Administrative Order No. 2019-004 PA/PT-CIR.

Are Telephonic Appearances Allowed?

Pursuant to Rule 2.530 of the Florida Rules of Judicial Administration, telephonic appearances may be used for motion hearings, pretrial conferences, or status conferences in Florida. However, some courts have prohibited the use of telephonic appearances in foreclosure lawsuits. For example, due to the case volume of foreclosure lawsuits in the Twelfth Circuit (DeSoto, Manatee, and Sarasota counties) and the Eighteenth Circuit (Brevard and Seminole counties), telephonic appearances are not allowed in any foreclosure proceeding. However, telephonic appearances are permitted in the Nineteenth Circuit (Indian River, Martin, Okeechobee, and St. Lucie counties).

What Documents Must be Filed Prior to a Final Hearing/Trial?

Before a foreclosing lender can obtain a final judgment of foreclosure at a motion for summary judgment or trial, many courts have created a checklist of documents that must be filed before the hearing/trial date. For example, in the Twelfth Circuit, the following documents must be electronically filed before a hearing or trial date can be scheduled:

1. Mortgage Foreclosure Summary Judgment Checklist;
2. Uniform Final Judgment of Foreclosure;
3. Copies of original documents;
4. Affidavit of Fees and Costs;
5. Certificate of Sale;
6. Certificate of Title; and
7. Certificate of Disbursements.

However, the required documents that must be filed to obtain a final judgment of foreclosure vary in each county. Therefore, it is important for lenders to check the local rules to make sure they file the required documents to obtain a final judgment of foreclosure at a motion for summary judgment or trial.

Conclusion

Foreclosing lenders must comply with Chapter 702 of the Florida Statutes, as well as any additional requirements of the court where the foreclosure lawsuit is filed. Failure to comply with the local rules may result in the foreclosure lawsuit being dismissed or delayed.

Authors:

• Austin B. Calhoun, Esq.
• Melissa Murrin, JD Candidate