Florida's "Fast Track" Foreclosure Law

Enacted in 1993, a little known law in Florida allows lenders to seek an expedited process to foreclose on their mortgage. Florida Statute, section 702.10, permits a lender to file, even at the time the Complaint for foreclosure is filed, a motion for an Order to Show Cause. Such a motion asks the Court to enter an Order requiring the defendant to appear at a hearing and "show cause" why a final judgment of foreclosure should not be entered. Section 702.10, also provides that the judge reviewing the motion for an Order to Show Cause need not have a hearing on the motion, and may issue the Order as long as certain statutory prerequisites are met. If the judge decides to issue the Order to Show Cause, a hearing must be set within 20-60 days after serving the Order on the defendant. This means that a lender could possibly obtain a final judgment of foreclosure with just a few months of filing its lawsuit.

Once received, the defendant must take certain steps, and should make certain filings, in order to prevent the entry of a final judgment of foreclosure. While not entirely clear, the case law reviewing and interpreting Section 702.10 seems to indicate that a final judgment of foreclosure cannot be entered if the defendant is "materially" defending the case. Stated differently, the statute contemplates a procedure to expedite that portion of a mortgage foreclosure case that is "not materially defended," BarrNunn, LLc v. Talmer Bank and Trust, 106 So. 3d 51, 53 (Fla. 2d DCA 2013). And, while also not entirely clear, "materially" defended seems to indicate that as long as a defendant has asserted a valid defense(s) or other reasons why the Order to Show Cause should not be entered, a final judgment of foreclosure should not be entered. As stated by one Florida court, “If a defendant files anything before or at the show cause hearing that ‘raise[s] a genuine issue of material fact which would preclude entry of summary judgment,’ the trial court may not employ the show cause procedures of the statute.”  Overture Realty, LLC v. City of Madeira Beach, 357 So. 3d 221, 222 (Fla. 2d DCA 2023).

The Overture Realty case, however, raises another issue -- whether the standard for entry of a summary judgment applies to Show Cause hearings. While Florida case law seems to be silent on the issue, it would appear that it does not, or should not. Again, as discussed in BarrNunn, as long as a defendant is "materially" defending case, a final judgment of foreclosure should not be entered. The most important point is that if you are sued by a lender for foreclosure, and are subsequently served with an Order to Show Cause, you must quickly take critical steps to prevent a "fast track" foreclosure from taking place.