Understanding Florida's Foreclosure Process: The Importance of Section 702.10

What is Florida's Section 702.10?

Enacted in 1993, a little-known law in Florida allows lenders to seek an expedited process to foreclose on their mortgages. Florida Statute, section 702.10, gives lenders the ability to file a motion for an Order to Show Cause at the same time as they file the Complaint for foreclosure. This motion requests that the court enter an order requiring the defendant to appear at a hearing. The defendant must "show cause" why a final judgment of foreclosure should not be entered against them.

The Court's Discretion

Under section 702.10, the judge reviewing the motion for an Order to Show Cause is not required to hold a hearing. They can issue the order if certain statutory prerequisites are satisfied. If the judge decides to issue the Order to Show Cause, a hearing must be set within 20 to 60 days after serving the order on the defendant. This means that a lender could potentially obtain a final judgment of foreclosure within just a few months after filing its lawsuit.

Steps for Defendants

Once the defendant receives the Order to Show Cause, they must take specific steps to prevent the entry of a final judgment of foreclosure. The case law interpreting section 702.10 suggests that a final judgment cannot be entered if the defendant is "materially" defending the case. In plain terms, this statute outlines a process to expedite foreclosure cases that are "not materially defended." As stated in BarrNunn, LLC v. Talmer Bank and Trust, 106 So. 3d 51, 53 (Fla. 2d DCA 2013), the law does not intend to allow foreclosures when there is a genuine defense put forth by the borrower.

Importance of Valid Defenses

However, "materially" defending the case implies that defendants can assert valid defenses or other reasons why the Order to Show Cause should not be granted. A Florida court noted that, “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.” This principle is outlined in the case Overture Realty, LLC v. City of Madeira Beach, 357 So. 3d 221, 222 (Fla. 2d DCA 2023).

The Overture Realty Case

The Overture Realty case brings forth another important issue: whether the standard for entering a summary judgment applies to Show Cause hearings. Florida case law on this matter appears to be inconclusive. However, it seems the summary judgment standard should not apply. As discussed in BarrNunn, if a defendant is "materially" defending the case, a final judgment of foreclosure should not be granted.

Urgency of Action

It’s vital to act quickly if you have been served with an Order to Show Cause after being sued by a lender for foreclosure. Ensuring that you assert any valid defenses can be the difference between losing your home and winning your case. Delaying your response may lead to a "fast track" foreclosure, which could limit your options to contest the final judgment.

Conclusion

In summary, Florida's section 702.10 provides an expedited process for lenders seeking foreclosure. Understanding this law and its implications is crucial for anyone facing foreclosure. If you find yourself in this situation, consult with a knowledgeable attorney immediately. Taking proactive measures can help to defend your rights and may prevent a rush to judgment that could lead to losing your home. Remember, knowing your legal options can significantly influence the outcome of your case.

If you are looking for further information or recommendations on how to navigate the foreclosure process, consider reaching out to a legal professional. Ensuring you understand your rights and having a solid defense in place can make all the difference during this challenging time.