A Guide to the Foreclosure Statutes for Florida, Part One
This article synopsizes the Florida Statutes regarding foreclosure and is intended for anyone looking to extend their knowledge of the Statutes (but probably wouldn't be helpful to other licensed Real Estate Attorneys intimately familiar with the Statutes). All of the statute information contained in this article comes from the Online Sunshine website (www.leg.state.fl.us), which is the "Official Internet Site of the Florida Legislature". Specifically, all the information comes from Title XL, Chapter 702 and is pertinent to all counties within Florida, including Jacksonville and St. Augustine.
A Brief Warning
It's important to know the limitations of the Florida State Statutes. They are an excellent starting point to understanding the laws surrounding any particular topic (such as foreclosure); however, they are not definitive of every possible situation and should not be used exclusively for legal decision making. For example, case law and federal law may in some instances supercede, clarify or direct the State Statutes. Also, individual discretion (such as that from judges) is extremely pertinent. And of course the power of experience cannot be overstated. So please, if you are needing legal assistance, contact one of the licensed Real Estate Attorneys at Heekin Law for a free consultation before making any legal decisions.
An Explanation of 702.01 - Equity
The first thing you'll probably notice about the Statutes is the writing style and legal terminology. In the first section (702.01), the word "equity" should be interpreted as "separate from counterclaims". So, to say that Florida mortgages should be foreclosed in equity, is to say that counterclaims will be tried separately (or "severed", as the Statute puts it). For the uninitiated, this wording probably feels pretty awkward, but once explained (hopefully) becomes clear. This section also defines that foreclosure claims will be tried without a jury; however, counterclaims may be tried with a jury (there's nothing Statutory against that).
An Explanation of 702.03 - Certain Foreclosures Validated
This section shows off the Florida Statutes' reference structures and greater body of knowledge associated with the Statutes not actually present in the State Statutes. It is a very specific Statute referencing Chapter 12095, Acts of 1927 ("An Act to Amend Section 3845 RGS Relating to Complaint in Foreclosure of Mortgages"). The Statute states that an uncertified copy of the mortgage in a foreclosure claim will be accepted if the foreclosure action is already pending and if the uncertified mortgage copy is provided in accordance with Chapter 12095, Acts of 1927. This, of course, isn't very helpful without knowing the provisions of Chapter 12095, Acts of 1927. For brevity, will continue forward, but if you'd like to know more about the Acts of 1927 please let us know and perhaps that will be the topic of a future article.
An Explanation of 702.035 - Legal Notice Concerning Foreclosure Proceedings
Here we have a perfect example of the specificity and lack of specificity of the Florida State Statutes regarding foreclosure. In essence, this section states that any legally required notice regarding a foreclosure must be handled by the foreclosure petitioner or their attorney. But the section also adds very specific rules regarding the acceptability of the required notice in regards to the size of the population of the relevant county and the reputability of the publication where the notice is displayed. So, if you live in a county with more than 1 million people according to the 2000 Official Decennial Census of the United States Census Bureau, the publication of the notice must be within a newspaper that has been entered as a periodical matter in a post office in the county, is published 5 days a week (excluding legal holidays) and has been published in this fashion for at least a year (or is a "direct successor" of a newspaper that has been published in this fashion for a year). Specific enough? Perhaps not. Notice that the Statute doesn't address counties with populations below 1 million? That's all part of the challenge of legal interpretation.
Foreclosure Statutes Continued...
At this point we will adjourn our discussion of the Florida Statutes regarding foreclosure until the next article, which will be released a week after this article. So don't miss the shocking conclusion next week of... "A Guide to the Foreclosure Statutes for Florida"!
Until next time, thanks for reading!