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Amendment to Fla. Stat. §702.06

It shall be legislative policy to promote the private ownership of homes within the State of Florida, and to encourage Lenders to provide loans for that purpose upon procedures and terms which are fair to be both Borrowers and Lenders. The Legislature is aware of unprecedented mortgage foreclosures of private, primary residences within this State, and considers that trend to be a threat to its established policy. The Legislature is also aware that all borrowers must repay amounts loaned for the purchase of housing, or Lenders cannot and will not make loans for this purpose. This amendment is therefore intended to encourage mortgage companies doing business in Florida: a) to provide procedures and programs by which private owners of primary residence homes can restructure loan payments if necessary to avoid foreclosure; and b) to confirm the jurisdiction and authority of circuit courts in this State to consider the equity and basic fairness of methods of advertising, documenting and collecting of such loans when determining whether or not to award a deficiency, and c) to encourage non-judicial alternatives to foreclosure of primary residences.

Now therefore, considering the foregoing, Fla. Stat. §702.06, which presently reads as follows:

“In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court, but the complainant shall also have the right to sue at common law to recover such deficiency, provided no suit at law to recover such deficiency shall be maintained against the original mortgagor in cases where the mortgage is for the purchase price of the property involved and where the original mortgagee becomes the purchaser thereof at foreclosure sale and also is granted a deficiency decree against the original mortgagor.”

shall be amended as follows:

(1) In all suits for the foreclosure of mortgages heretofore or hereafter executed, the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court, but the complainant shall also have the right to sue at common law to recover such deficiency, provided no suit at law to recover such deficiency shall be maintained against the original mortgagor in cases where the mortgage is for the purchase price of the property involved and where the original mortgagee becomes the purchaser thereof at foreclosure sale and also is granted a deficiency decree against the original mortgagor that no complainant shall be entitled to both a deficiency decree in the foreclosure action and a judgment at law for the same deficiency.

(2) Any independent action at law filed under this section must be filed within one year after the date of any public sale in a foreclosure of the property, and any motion for deficiency in a pending foreclosure action must be filed within one year after the public sale in the action.

(3) As to non-investment residential homes, including condominium, cooperative, or townhome form of ownership, the common law that unless cause be shown to decline entry of a deficiency, a judgment for deficiency will be entered, is hereby amended and replaced by the following:

Upon request of the Borrower/Mortgagor, the trial court will consider:

(a) Whether or not the Mortgagee has made available to Mortgagor a timely procedure for good faith renegotiation or mortgage modification, short-sale, or similar requests to the mortgagee; and,

(b) The degree to which Mortgagor’s default was the result of circumstances not with reasonable diligence expected by mortgagor and not reasonably within the control of the mortgagor; and,

(c) The degree to which, under the terms of the note, mortgage, and other closing documents, (including mortgagor’s credit statement or application when the loan was approved), the Mortgagee can reasonably be said to have made its loan solely in reliance upon the value of the collateral, or in substantial disregard of the income or other assets of the mortgagor, and

(d) Such other matters as should equitably be considered by the court in exercise and protection of State Policy.

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