The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B)
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"Because the court's consideration of the issue of adequate protection is a condition of entering a judgment that reestablishes a lost note, its failure to provide adequate protection, or to make a finding that none is needed under the circumstances, requires reversal and remand for the court to consider the issue." Blitch , 185 So.3d at 646. As noted in Blitch , the requirement of adequate protection is generally satisfied "through a written indemnification agreement in the final judgment, the posting of a surety bond, a letter of credit, a deposit of cash collateral with the court, or ‘[s]uch other security as the court may deem appropriate under the circumstances.’ " Id. (quoting § 702.11(1)(e), Fla. Stat. (2014) ).
Because “surrender” means “giving up of a right or claim,” debtors who surrender their property can no longer contest a foreclosure action. When the debtors act to preserve their rights to the property “by way of adversarial litigation,” they have not “relinquish[ed] ... all of their legal rights to the property, including the rights to possess and use it.” White , 487 F.3d at 206 (emphasis omitted). The “retention of property that is legally insulated from collection is inconsistent with surrender.” Id. at 207. Ordinarily, when debtors surrender property to a creditor, the creditor obtains it immediately and is free to sell it. Assocs. Commercial Corp. v. Rash , 520 U.S. 953, 962, 117 S.Ct. 1879, 138 L.Ed.2d 148 (1997). Granted, a creditor must take some legal action to recover real property—namely, a foreclosure action. See Fla. Stat. Ann. §§ 702.01 –702.11. Foreclosure proceedings ensure that debtors do not have to determine unilaterally issues of priority if there are multiple creditors or surplus if the value of the property exceeds the liability. See Plummer , 513 B.R. at 144. Debtors who surrender property must get out of the creditor's way. “[I]n order for…
We do not consider the application, if any, of section 702.11, Florida Statutes (2014), because the homeowners failed to raise this argument as part of their motion for involuntary dismissal, so it was waived.
Nevertheless, a judgment of foreclosure does not always require surrender of the original note. For example, where a plaintiff satisfies the requirements for the enforcement of a lost, destroyed, or stolen instrument, the plaintiff may foreclose on a property even where the plaintiff no longer has possession of the original note. See § 673.3091, Fla. Stat. (2004). The danger that the original note might be negotiated to a bona fide purchaser for value is abrogated by the requirement that the one seeking to enforce a lost note must indemnify the defendant. Id. ; see also § 702.11, Fla. Stat. (2013).
§ 673.3091, Fla. Stat. (2014) (emphasis added). As this statutory language makes clear, and contrary to the Blitches' argument here, adequate protection is not an element of the Bank's prima facie case. Instead, it is a post-proof condition of the entry of the final judgment. See Fifth Third Bank v. Alaedin & Majdi Invs., Inc., No. 8:11–CV–2206–T–17TBM, 2012 WL 1137104, at *3 (M.D.Fla. Apr. 4, 2012) (noting that after the plaintiff showed that it was entitled to enforce the note at the time it lost the note, “the Court is required to address the issue of providing adequate protection to the defaulting party against loss that might occur if a claim were brought by another party to enforce the instrument”); see also Correa v. U.S. Bank Nat'l Ass'n, 118 So.3d 952, 956 n. 2 (Fla. 2d DCA 2013) (stating that “[i]f the court is concerned that another person might attempt to enforce the original note, it may require security in favor of the payor to ensure adequate protection” (emphasis added)); Beaumont v. Bank of New York Mellon, 81 So.3d 553, 555 (Fla. 5th DCA 2012) (after discussing the deficiencies in the bank's proof, stating “[t]he trial court was also required to address the…
The Committee also agrees with comments suggesting that subdivision (d) of the rule be amended to add a reference to section 702.11, Florida Statutes, for completeness and clarity of “the adequate protections which must be provided before entry of judgment.” Subdivision (d) of the rule addresses lost, destroyed, or stolen instruments. In such cases the claimant is required to provide “adequate protection” against “loss that might occur by reason of a claim by another person to enforce the instrument.” § 673.3091(2), Fla. Stat. (2015). Section 702.11, Florida Statutes, also addresses adequate protection for lost, destroyed, or stolen notes in mortgage foreclosure and lists the acceptable reasonable means of providing adequate protection, “if so found by the court.” § 702.11(1), Fla. Stat. (2015). Accordingly, because both sections 673.3091(2) and 702.11(1) are important provisions regarding adequate protections, we adopt the amendment to subdivision (d) as proposed by the Committee.
The Legislature finds that this act is remedial in nature and applies to all mortgages encumbering real property and all promissory notes secured by a mortgage, whether executed before, on, or after the effective date of this act. In addition, the Legislature finds that s. 702.015, Florida Statutes, as created by this act, applies to cases filed on or after July 1, 2013; however, the amendments to s. 702.10, Florida Statutes, and the creation of s. 702.11, Florida Statutes, by this act, apply to causes of action pending on the effective date of this act.
2014 Adoption. This form is for installment payments with acceleration. It omits allegations about junior encumbrances, unpaid taxes, unpaid insurance premiums, other nonmonetary defaults, and for a receiver. Allegations must be added when appropriate. This form may require modification. This form is designed to incorporate the pleading requirements of section 702.015, Florida Statutes (2013), and rule 1.115. It is also designed to comply with section 673.3091, Florida Statutes (2013). Adequate protection as required by sections 702.11 (2013) and 673.3091(2), Florida Statutes (2013), must be provided before the entry of final judgment.
702.11. Adequate protections for lost, destroyed, or stolen notes in mortgage foreclosure
An extensive set of procedural rules governs claims under the Act. See 20 C.F.R. §§ 702.11 to .394 (1985). Disputed claims, if not resolved at an informal hearing before the deputy commissioner, generally proceed to a formal proceeding before an ALJ. See id. §§ 702.316, .331, .332. Prior to the hearing, each party must submit prehearing statements enumerating the issues that will be raised at the hearing. See id. § 702.317; U.S. Dept. of Labor, OWCP, LS-18, "Prehearing Statement." Although the hearing progresses according to the issues in the prehearing statements, issues not included in the statements can be heard even though the hearing would have to be extended. See id. § 702.336.
. . . (quoting § 702.11(1)(e), Fla. Stat. (2014) ). . . .
. . . Opinion of Iowa Court of Appeals, Defendant's Exhibit E, 3 (citing IOWA CODE § 702.11 ). . . .
. . . . §§ 702.01-702.11. . . .
. . . . §§ 702.01-702.11. . . .
. . . We do not consider the application, if any, of section 702.11, Florida Statutes (2014), because the homeowners . . .
. . . .; see also § 702.11, Fla. . . .
. . . .” § 702.11(1)(e), Fla. Stat. (2014). . . .
. . . with comments suggesting that subdivision (d) of the rule be amended to add a reference to section 702.11 . . . Section 702.11, Florida Statutes, also addresses adequate protection for lost, destroyed, or stolen notes . . . Stat. (2015)., Accordingly, because both sections 673.3091(2) and 702.11(1) are important provisions . . . Adequate protection as required and identified under sections 673.3091(2) and 702.11(1), Florida Statutes . . . Adequate protection as required by sections' 702.11 (2013) and 673.3091(2), Florida Statutes (2013), . . .
. . . after July 1, 2013; however, the amendments to s. 702.10, Florida Statutes, and the creation of s. 702.11 . . .
. . . Adequate protection as required by sections 702.11 (2013) and 673.3091(2), Florida Statutes (2013), must . . .
. . . Section 702.11(1), Florida Statutes (2013), explains the concept of adequate protection: 702.11. . . .
. . . Iowa Code §§ 702.11(1); 708.2(4). . . .
. . . This reduced Navigant’s conclusion to a range of $611.21 and $702.11. Dr. . . .
. . . Compare Iowa Code § 711.2 (robbery in the first degree), § 724.26 (possession of a firearm by felon), § 702.11 . . .
. . . Id. at 196-97 (citing Iowa Code § 702.11). . . . Iowa Code § 702.11. . . . Instead, the forcible felonies provided in section 702.11 are capable of being categorized as either . . . Compare id. § 902.12 (listing offenses subject to 100% provision), with id. § 702.11 (defining forcible . . .
. . . See Iowa Code §§ 702.11 (classifying certain offenses as forcible felonies), 708.4 (willful injury), . . . Id. at 196-97 (citing Iowa Code § 702.11). . . . Iowa Code § 702.11. . . . Instead, the forcible felonies provided in section 702.11 are capable of being categorized as either . . . Compare id. § 902.12 (listing offenses subject to 85% rule), with id. § 702.11 (defining forcible felony . . .
. . . Iowa Code § 702.11. . . . Iowa Code § 702.11. . . .
. . . . §§ 702.11; 707.2 (West 1993). . . . Iowa Code Ann. § 702.11 (West 1993). . . .
. . . . §§ 702.11 to .394 (1985). . . .
. . . Reg. pp. 1830, 1831. 702.11(a) (2) (i). § 702.11(c) (1). . . .