Mortgage Foreclosure Procedures

IN THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO AND PINELLAS COUNTIES, FLORIDA

ADMINISTRATIVE ORDER NO. 2010-025 PA/PI-CIR

RE: MORTGAGE FORECLOSURE PROCEDURES

In Administrative Order 2009-065, this Court updated various foreclosure procedures and forms to address the increasing volume of mortgage foreclosure cases in the Sixth Judicial Circuit. The Order required notice to homeowners, regardless of homestead status, of the option to participate in mediation. The Order also included provisions for compliance with the federal Protecting Tenants at Foreclosure Act of 2009, Pub. L. No. 111-22, 123 Stat. 1660 (codified as amended in scattered sections of 12 U.S.C. and 42 U.S.C.).

On December 28, 2009, the Chief Justice of the Florida Supreme Court issued Administrative Order AOSC09-54, “In re: Final Report and Recommendations on Residential Foreclosure Cases.” This Order provided for each judicial circuit to create a residential mortgage foreclosure mediation program for homestead properties.

This Court adopted Administrative Order 2010-016 to implement a residential mortgage foreclosure mediation program and reconcile that program with existing foreclosure provisions and existing mediation services. However, the Court now finds that technical adjustments are necessary before the foreclosure mediation program can begin. Therefore, under the authority granted the Chief Judge by Article V, section 2(d) of the Florida Constitution, section 43.26, Florida Statutes, and Florida Rules of Judicial Administration 2.215 and 2.545, it is

ORDERED:

I. APPLICATION OF THIS ORDER

A. Scope

This Administrative Order sets forth procedures for the two types of mediation available in the Sixth Judicial Circuit. The first of these types is the Foreclosure Mediation Program (Foreclosure Program), which is for homestead properties only. Owners of homestead properties will be referred automatically to the Foreclosure Program and must affirmatively opt out of the Foreclosure Program as detailed more fully in Sections II and III, below.

The second type of mediation is the Sixth Circuit’s Civil Mediation Program (Circuit Civil Mediation), and it is available for all non-homestead residential properties, any other residential foreclosure deemed ineligible for the Foreclosure Program, and commercial foreclosure cases. Parties will not be referred automatically to Circuit Civil Mediation. Instead, a party must request to participate in Circuit Civil Mediation by filing a motion with the Court. This procedure is discussed more fully in Section IV, below.

This Administrative Order applies only to foreclosure of mortgages. It does not apply to foreclosure of other liens such as condominium or association liens for assessments; however, the Court may still order such matters to mediation in accordance with the provisions of chapter 44, Florida Statutes.

This Administrative Order is divided into six sections.

Section I describes the scope of this Order and defines terms used in this Order.

Section II sets forth the procedures for determining eligibility for the Foreclosure Mediation Program (Foreclosure Program). Section II applies to residential foreclosures only.

Section III addresses Foreclosure Program procedures once eligibility for the Foreclosure Program has been determined and applies to all residential homestead mortgage foreclosures determined to be eligible for the Foreclosure Program. Owners of such property will be automatically referred to the Foreclosure Mediation Program. For Section III to apply, the mortgage must involve homestead property.

Section IV sets forth procedures for mortgage foreclosures that are not eligible for automatic referral to the Foreclosure Mediation Program. This includes all non-homestead residential foreclosures, any other residential foreclosures deemed ineligible for the Foreclosure Program, and commercial foreclosures. Parties will not be referred automatically to Circuit Civil Mediation. Instead, a party must request to participate in Circuit Civil Mediation by filing a motion with the Court.

Section V addresses procedures applicable to all mortgage foreclosure cases, residential and commercial. These procedures include the scheduling of summary judgment hearings and foreclosure sales.

Section VI addresses procedures applicable to motions for writs of possession arising from the mortgage foreclosure of any residential property, regardless of homestead status.

B. Definitions

As used in this Administrative Order,

1. “Borrower” or “Defendant/ Borrower” refers to the individual, individuals, entity, or entities against whom the foreclosure action is directed. For sections II and III, the Borrower means the owner of homestead property.

2. “Circuit Civil Mediation” refers to the Sixth Judicial Circuit’s longstanding civil mediation program.

3. “Foreclosure counselor” refers to a counselor who is trained in advising persons of options available when facing a mortgage foreclosure, who has no criminal history of committing a felony or crime of dishonesty, and who is certified by the United States Department of Housing and Urban Development (HUD) or National Foreclosure Mitigation Counseling Program (NFMC) as a counselor experienced in mortgage delinquencies and default resolution counseling.

4. “Foreclosure Program” refers to the Foreclosure Mediation Program established by this Administrative Order.

5. “Foreclosure Program Manager” refers to Mediation Managers, Inc., which provides Foreclosure Program services under contract with the Sixth Judicial Circuit.

6. “Homestead” refers to residential property for which a homestead real estate tax exemption was granted according to the certified rolls of the last assessment by the county property appraiser prior to the filing of the suit to foreclose the mortgage.

7. “Lender” or “Plaintiff/Lender” refers to the entity bringing the foreclosure case.

8. “Mediator” refers to a Florida Supreme Court Certified Circuit Court Mediator specially trained to mediate residential mortgage foreclosure cases.

9. “Party,” for purposes of sections II and III, refers to the Lender, the Borrower, their attorneys, and any other person or entity who has filed a pleading or entered a notice of appearance.

10. “Program fees” refers to the two-stage payment the Lender must submit directly to the Foreclosure Program Manager for pre-mediation and mediation expenses of the Foreclosure Program.

11. “Qualified pre-suit mediation” refers to mediation conducted prior to the commencement of foreclosure proceedings that (1) was conducted by either the Foreclosure Program or a Florida Supreme Court Certified Circuit Court Mediator specially trained to mediate residential foreclosures; (2) included the Borrower’s participation in foreclosure counseling; and (3) included a supervised exchange of Lender and Borrower financial disclosures.

12. “Submitted” or “transmitted,” unless defined otherwise in a particular provision of this Administrative Order, refers to sending information to the Program Manager or the parties by means of an electronic system.

II. ELIGIBILITY FOR THE FORECLOSURE MEDIATION PROGRAM

This section sets forth the procedures for determining eligibility for the Foreclosure Mediation Program (Foreclosure Program). This section applies to residential foreclosures only.

A. Notices in the Foreclosure Mediation Program

All written notices to parties and to the Foreclosure Program Manager required under section II and section III may be provided by email, if an email address has been provided to the Foreclosure Program Manager.

B. Lender’s Responsibilities

1. For each residential mortgage foreclosure case the Lender’s attorney must:

a. File a complaint in accordance with Florida Rules of Civil Procedure 1.110(b) that includes an oath, affirmation, or the following statement: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

b. File with the complaint a completed Form A - Plaintiff’s Certificate verified by the Lender’s attorney. If the case involves multiple plaintiffs, only one Form A - Plaintiff’s Certificate must be filed.

c. Provide the Clerk of the Circuit Court (Clerk) with sufficient copies of the complaint, summons, Form A - Plaintiff’s Certificate, and Notice from the Court to Homeowner, Form B, for service on all defendants.

d. Within one (1) business day of the assignment of a case number but not later than five (5) business days after the filing of the foreclosure case,

i. electronically transmit to the Foreclosure Program Manager the case number; contact information for the Lender and the Borrower, including telephone number and email address if known; and a copy of Form A – Plaintiff’s Certificate, using the web enabled information platform; and

ii. submit a pre-mediation fee of $400 to the Foreclosure Program Manager.

2. All time limits for the Foreclosure Program do not begin to run until a verified complaint and verified Form A - Plaintiff’s Certificate is filed with the Clerk.

C. Clerk of the Circuit Court’s Responsibilities

In the event a Lender files a residential mortgage foreclosure complaint that is not verified or fails to file a verified Form A - Plaintiff’s Certificate, for purposes of this Administrative Order, the case is deemed not to have commenced. The Clerk shall not issue a summons until a verified complaint and a verified Form A - Plaintiff’s Certificate is filed.

D. Process Server’s Responsibilities

1. For every residential mortgage foreclosure case filed, the process server must note on the return of service that the summons was served with the complaint, Form A - Plaintiff’s Certificate, and Notice from the Court to Homeowner, Form B.

2. If personal service is obtained at an address that is not the property subject to the foreclosure, the process server must:

a. Note the location where service was obtained and any other contact information for the Borrower; and

b. Provide a copy of the return of service to the Foreclosure Program Manager.

E. Foreclosure Program Manager’s Responsibilities

1. For each residential mortgage foreclosure case filed, the Foreclosure Program Manager must:

a. Confirm that Form A - Plaintiff’s Certificate has been filed with the Clerk;

b. Electronically receive from the Lender a copy of Form A - Plaintiff’s Certificate and keep a record of such forms;

c. Receive payment of $400 from the Lender for pre-mediation services; and

d. Promptly determine whether the case is automatically referred to mediation by reviewing Form A - Plaintiff’s Certificate to verify that:

i. the original note and mortgage are subject to the provisions of the federal Truth In Lending Act, Regulation Z;

ii. the property is homestead property;

iii. the parties have not already completed qualified pre-suit mediation; and

iv. at the time the case is filed, the Lender and Borrower have not agreed in writing to opt out of the Program.

2. If the Foreclosure Program Manger determines from Form A – Plaintiff’s Certificate that the case is not eligible for automatic referral to the Foreclosure Program, the Foreclosure Program Manager must:

a. File a Notice of Ineligibility for the Foreclosure Mediation Program, Form C, with the Clerk and send a copy to all parties within ten (10) days of receipt of the Form A – Plaintiff’s Certificate; and

b. Refund $375, which is the pre-mediation fee less a processing fee.

III. PROCEDURES FOR CASES AUTOMATICALLY REFERRED TO THE FORECLOSURE MEDIATION PROGRAM

This section applies to all residential homestead mortgage foreclosure cases determined to be eligible for the Foreclosure Mediation Program. For this section to apply, the mortgage must be on homestead property. Such cases are automatically referred to the Foreclosure Mediation Program. This Administrative Order constitutes a referral to mediation pursuant to section 44.102, Florida Statutes, and Florida Rules of Civil Procedure 1.700 – 1.730 for cases determined eligible for the Foreclosure Mediation Program

A. Determination of Borrower’s Participation

1. Foreclosure Program Manager’s Responsibilities

a. If all the requirements of Form A - Plaintiff’s Certificate are satisfied, the Foreclosure Program Manager must contact the Borrower (if the Borrower has not already contacted the Foreclosure Program Manager) to determine if the Borrower resides in the property. At least two attempts to contact the Borrower must be made by first class U.S. Mail; and at least four additional attempts must be made, at least two of which must be by a personal telephone call. The other two attempts may be made by personal telephone call, personal visit, email, or automated telephone call.

b. If the Borrower does not reside in the property, the case is not eligible for the Foreclosure Mediation Program. The Foreclosure Program Manager must file a Notice of Ineligibility for the Foreclosure Mediation Program, Form C, with the Clerk and send a copy to all parties. All notices must be filed with the Clerk within ten (10) days of determining that the case is ineligible.

c. If the case is not eligible because the Borrower does not reside in the property, the Foreclosure Program Manager must refund $125 to the Lender, the portion of the pre-mediation fee attributable to foreclosure counseling.

d. If the Foreclosure Program Manager is not successful in contacting the Borrower within sixty (60) days, the Foreclosure Program Manager must file a Notice of Borrower Nonparticipation in the Foreclosure Mediation Program, Form D, with the Clerk and send a copy to the parties.

e. If the Foreclosure Program Manager has made contact with the Borrower, the Foreclosure Program Manager must:

i. explain the Foreclosure Program to the Borrower, including the requirement to file financial information and participate in foreclosure counseling. The Foreclosure Program Manager must further explain that financial information necessary for the Foreclosure Program should not be filed with the Clerk;

ii. if the Borrower does not have an attorney, notify the Borrower of his or her right to consult with an attorney and also advise the Borrower about pro bono, lawyer referral, and legal aid services. If the Borrower has an attorney, the Foreclosure Program Manager must provide the attorney with an outline of the Foreclosure Program including foreclosure counseling, mediation, the financial information required from the Borrower before participation in mediation, and the Borrower’s ability to opt out of the Program. If the Borrower does not opt out of the program, the Borrower is considered to have waived any right to have communications proceed exclusively through the attorney. Thereafter the Foreclosure Program Manager must provide to counsel a copy of any written communications including requests for information that it gives to the Borrower; and

iii. determine whether the Borrower will participate in or opt out of the Foreclosure Program. If the Borrower opts out of the Foreclosure Program, the Foreclosure Program Manager must file a Notice of Borrower Nonparticipation in the Foreclosure Mediation Program, Form D, with the Clerk and send a copy to the parties.

f. If the Borrower cannot be located, makes no contact with the Foreclosure Program Manager, or chooses not to participate in the Foreclosure Program, the Foreclosure Program Manager must refund $125 to the Lender, the portion of the pre-mediation fee attributable to foreclosure counseling.

2. Borrower’s Responsibilities

a. Even though the case has been referred to mediation, the Borrower must timely file an answer or other responsive pleading to the foreclosure. Rule 1.140, Fla. R. Civ. P.

b. If the Borrower receives a Notice of Ineligibility for the Foreclosure Mediation Program, Form C, the Borrower may file a Motion to Participate in the Foreclosure Mediation Program, Form E, for one of the following reasons:

i. the original note and mortgage are subject to the provisions of the federal Truth In Lending Act, Regulation Z; the property is homestead property; and the Borrower resides in the property;

ii. there was no stipulation between the Lender and the Borrower agreeing that they would not participate in the Foreclosure Program;

iii. a qualifying pre-suit mediation did not occur; or

iv. a qualifying pre-suit mediation occurred, but no settlement was reached and the Borrower’s financial circumstances have changed since that mediation.

The Motion to Participate in the Foreclosure Mediation Program should be filed with the Court as soon as possible after service of the Notice of Ineligibility. A form motion is attached as Form E.

c. If the Borrower’s case is referred to mediation, the Borrower must cooperate with the Foreclosure Program Manager and inform the Foreclosure Program Manager whether the Borrower desires to participate in the Program. If the Borrower fails to communicate with the Foreclosure Program Manager within sixty (60) days of the filing of the complaint, the Borrower will be deemed to have elected not to participate in the Foreclosure Program.

B. Pre-Foreclosure Mediation Program Procedures Once Participation is Confirmed

1. Foreclosure Program Manager’s Responsibilities

If the Borrower informs the Foreclosure Program Manager that the Borrower wishes to participate in the Foreclosure Mediation Program, the Foreclosure Program Manager must:

a. Refer the Borrower to a foreclosure counselor on a rotation basis prior to scheduling the mediation. The Court prefers for foreclosure counseling to take place in person unless the Borrower requests a conference by telephone. The Foreclosure Program Manager also must inform the Borrower that failure to meet with the foreclosure counselor and provide applicable financial documents within ninety (90) days of the filing of the complaint will result in the Borrower being removed from the Foreclosure Program.

b. Inform the foreclosure counselor that he or she must advise the Borrower and provide assistance the Borrower in selecting and completing the appropriate financial disclosure form for mediation. The Foreclosure Program Manager must also assure that the foreclosure counselor is capable of transmitting the financial disclosure form to the Foreclosure Program Manager by electronic means or that other means are available to the Borrower to electronically transmit financial disclosures.

c. Advise the Borrower that the Borrower must submit one of the following three financial disclosure documents no later than ninety (90) days from the filing of the case: Borrower’s Financial Disclosure for Mediation – Loan Modification, Form F-1; Borrower’s Financial Disclosure for Mediation – Short Sale, Form F-2; or Borrower’s Financial Disclosure for Mediation – Deed in Lieu of Foreclosure, Form F-3. The Foreclosure Program Manager also must explain to the Borrower that the foreclosure counselor will help the Borrower determine which one of these forms is most appropriate for the Borrower’s financial situation. The Foreclosure Program Manager must further advise the Borrower that failure to submit one of these forms by the deadline will result in the case being removed from the Foreclosure Program.

d. Promptly transmit the Borrower’s financial disclosure form to the Lender.

e. Advise the Borrower that the Borrower has the right to receive information from the Lender prior to mediation. If the Borrower chooses to exercise that right, the Foreclosure Program Manager must:

i. inform the Borrower that the Borrower must complete a Borrower’s Request for Lender’s Disclosure for Mediation, Form G, and submit it in writing to the Foreclosure Program Manager no later than twenty-five (25) days before the mediation;

ii. promptly transmit the Borrower’s Request to the Lender; and

iii. receive from the Lender the information requested no later than five (5) days prior to the mediation. The Foreclosure Program Manager must immediately deliver the information to the Borrower.

f. Schedule the mediation. Unless otherwise agreed to by the parties, the mediation must be scheduled:

i. not earlier than sixty (60) but not greater than 120 days from the filing of the complaint;

ii. at least thirty (30) days after the Borrower’s financial disclosure is transmitted to the Lender; and

iii. not before the Borrower has met with the foreclosure counselor.

Upon scheduling or any rescheduling of the mediation, the Foreclosure Program Manager must promptly file a Notice of Foreclosure Mediation Program Session with the Clerk and send a copy to the parties. If the parties agree to schedule mediation later than 120 days after the filing of the complaint, the Foreclosure Program Manager must file a Notice of Extension of Time to Complete Foreclosure Mediation Program, Form H, with the Clerk. This Notice must include the date by which mediation under the Foreclosure Program will be concluded.

g. Receive payment of $350 from the Lender for mediation.

h. If, after mediation is scheduled the Borrower informs the Foreclosure Program Manager that the Borrower no longer wishes to participate in the Program or the Foreclosure Program Manager receives a notice that the parties have settled at least five (5) business days prior to the mediation, the Foreclosure Program Manager must refund to the Lender the $350 mediation fee. If the notice of settlement is not received at least five (5) business days prior to the mediation, no refund will be provided.

2. Borrower’s Responsibilities

a. The Borrower must:

i. meet with the foreclosure counselor to which the Foreclosure Program has referred the Borrower for assistance with selecting and completing one of the following three financial disclosure documents: Borrower’s Financial Disclosure for Mediation – Loan Modification, Form F-1; Borrower’s Financial Disclosure for Mediation – Short Sale, Form F-2; or Borrower’s Financial Disclosure for Mediation – Deed in Lieu of Foreclosure, Form F-3.

ii. submit the Borrower’s appropriate financial disclosure form for mediation to the Foreclosure Program Manager. The Borrower may have the foreclosure counselor electronically transmit the information or may provide it directly to the Foreclosure Program Manager.

Failure to comply with this subsection will result in removal of the case from the Foreclosure Program.

b. If the Borrower wishes to receive any of the following information from the Lender, the Borrower must submit the Borrower’s Request for Lender’s Disclosure for Mediation, Form G, to the Foreclosure Program Manager no later than twenty-five (25) days prior to the mediation:

i. documentary evidence that the Lender is the owner and holder in due course of the note and mortgage being sued upon;

ii. a history showing the application of all payments by the Borrower during the life of the loan;

iii. a statement of the Lender’s position on the present net value of the loan; or

iv. the most current appraisal of the property available to the Lender.

3. Lender’s Responsibilities

a. Within ten (10) days after notice of the mediation session is issued by the Foreclosure Program Manager, Lender must submit a fee of $350 to the Foreclosure Program Manager for mediation.

b. If the Foreclosure Program Manager has transmitted a Borrower’s Request for Lender’s Disclosure for Mediation to the Lender, Form G, the Lender must transmit the requested information no later than five (5) business days prior to mediation to the Foreclosure Program Manager.

c. If the Lender designates a new representative to be present at mediation who is not listed on the original Form A - Plaintiff’s Certificate, the Lender’s attorney must submit an Amended Form A - Plaintiff’s Certificate listing the new representative no later than five (5) business days prior to the mediation.

d. If the Lender’s representative wishes to appear at mediation through the use of communication equipment, the Lender’s attorney must file a Notice of Attendance at Mediation Through the Use of Communication Equipment and Designation of Authority to Sign Settlement Agreement, Form I, no later than five (5) business days before the mediation is scheduled. This Notice may designate the Lender’s attorney as the person who physically will be present at the mediation with full authority on behalf of the Lender to sign any settlement agreement.

4. Confidentiality of Disclosures

The Lender, Foreclosure Program Manager, foreclosure counselor, information technology provider, and any other third-party vendor must keep confidential all personal financial information or any other protected information disclosed by the Borrower. This information may not be released except as authorized or permitted by federal or state law, or with the written consent of the Borrower, or as authorized by the Court. Any violation of this provision will subject the violator to all available civil and criminal sanctions.

C. Foreclosure Mediation Program Session Procedures

1. Attendance

a. The following persons must be physically present at the mediation: the Lender’s attorney, the Borrower, and the Borrower’s attorney, if any.

The Lender’s representative designated in Form A - Plaintiff’s Certificate or Amended Form A - Plaintiff’s Certificate may appear physically or through the use of communications equipment, provided that the Lender has filed the Notice of Attendance at Mediation Through the Use of Communication Equipment, Form I, at least five (5) business days prior to the mediation. If the Lender’s representative attends mediation through the use of communications equipment, the representative must remain present on the equipment at all times during the mediation session.

b. The following persons may be present at the mediation: a representative of any junior lienholder with full settlement authority or, if the junior lienholder is a governmental entity, the authority to recommend settlement to the governing body, and counsel for any junior lienholder.

c. At the outset of the mediation, the Foreclosure Program Manager must take a written roll to confirm the presence of all required parties. The Foreclosure Program Manager also must note on the roll if the Lender’s representative does not have full authority to settle either by failure to be listed on Form A - Plaintiff’s Certificate or Amended Form A or Lender’s failure to file an Amended Form A - Plaintiff’s Certificate at least five (5) business days prior to the mediation.

2. The Mediator’s Report

a. If the mediation does not occur because a properly authorized Lender’s representative or Borrower failed to appear, or if the mediation results in an impasse, the report of the mediator to the Court must list the parties who were present at the mediation but make no further comment on the reasons for the impasse. Lender’s Form A – Plaintiff’s Certificate and any Amended Form A – Plaintiff’s Certificate also must be attached to the report for the Court to determine if a properly authorized Lender’s representative was present.

b. If a partial or final settlement is reached, it must be reduced to writing and signed by all parties and their counsel, if any. In accordance with Florida Rules of Civil Procedure 1.730(b), the mediator must report the existence of the signed or transcribed agreement to the Court without comment within ten (10) days after the mediation. If only a partial settlement was reached, the mediator must report the lack of an agreement on any matter that was not resolved, but without further comment or recommendation to the Court.

3. Confidentiality

Unless otherwise provided by law, all mediation communication, including information provided to the Foreclosure Program Manager that is not filed with the Court, is confidential and inadmissible in any subsequent legal proceeding pursuant to chapter 44, Florida Statutes, the Florida Rules of Civil Procedure, and the Florida Rules for Certified and Court-Appointed Mediators. However, the written roll and Foreclosure Program Manager’s notation of whether Lender’s representative has authority to settle are not confidential.

4. Lender’s Responsibilities

If the Lender’s representative attended the mediation through the use of communications equipment, and the mediation results in an impasse, the Lender must file a Certification of Attendance at Mediation Through the Use of Communications Equipment, Form J, with the Clerk no later than five (5) business days after the mediation session. Failure to timely file this certification may result in sanctions against the Lender, including but not limited to requiring the physical appearance of the Lender’s representative at a second mediation, taxation of the costs of a second mediation to the Lender, or dismissal of the case.

D. Notification of Nonparticipation or Noncompliance

1. If the Lender fails to participate or comply for any reason listed below, the Foreclosure Program Manager must first contact the Lender in an effort to achieve compliance. If this fails, the Foreclosure Program Manager must file Notice of Lender’s Failure to Comply with Foreclosure Mediation Program, Form K, with the Clerk and provide copies to the parties and the assigned judge on a periodic basis as requested but in no event less frequently than monthly. This notice must document the Foreclosure Program Manager’s efforts to obtain compliance.

a. Failure to File Form A - Plaintiff’s Certificate.

b. Failure to submit Form A - Plaintiff’s Certificate to the Foreclosure Program Manager.

c. Filing a false, inaccurate or misleading Form A - Plaintiff’s Certificate.

d. Failure to pay the administrative services portion of the Foreclosure Program fees when the suit is filed.

e. Failure to pay the mediation services portion of the Foreclosure Program fees within ten (10) days after the notice of mediation session is filed.

f. Failure to submit the case number and contact information for the Borrower to the Foreclosure Program Manager.

g. Failure of Lender’s attorney to attend mediation.

h. Failure of a Lender’s representative listed in Form A - Plaintiff’s Certificate, or a timely-filed Amended Form A - Plaintiff’s Certificate, to appear.

i. Failure of a Lender’s representative with full authority to sign a settlement agreement to appear.

j. Failure of Lender to file a timely Notice of Attendance at Mediation Through the Use of Communication Equipment and Designation of Authority to Sign Settlement Agreement, Form I.

k. Failure of the Lender to attend by communications equipment at all times during the mediation.

l. Failure of the Lender to file within five (5) days after the mediation, a Certification of Attendance at Mediation Through the Use of Communications Equipment, Form J.

m. Failure of the Lender to respond to Borrower’s Request for Lender’s Disclosure for Mediation, Form G, at least five (5) days prior to Mediation.

n. For any other instance of noncompliance or nonparticipation, the Foreclosure Program Manager may file a written motion stating with particularity the grounds for the motion and the relief or order sought.

2. The Foreclosure Program Manager must track the status of each residential mortgage foreclosure case and if necessary contact the Borrower within a sufficient time prior to a deadline to allow for compliance by the deadline. If the Borrower fails to participate or comply for any reason listed below, the Foreclosure Program Manager must file Notice of Borrower Nonparticipation in the Foreclosure Mediation Program, Form D, with the Clerk and send a copy to the parties.

a. Failure to file Borrower’s Financial Disclosure for Mediation – Loan Modification, Form F-1; Borrower’s Financial Disclosure for Mediation – Short Sale, Form F-2; or Borrower’s Financial Disclosure for Mediation – Deed in Lieu of Foreclosure, Form F-3, within ninety (90) days after the case was filed.

b. Failure to meet with a foreclosure counselor within ninety (90) days after the case was filed.

c. Failure to participate in mediation within 120 days after the case was filed.

d. For any other instance of noncompliance or nonparticipation, the Foreclosure Program Manager may file a written motion stating with particularity the grounds for the motion and the relief or order sought.

E. Possible Court Actions Following Mediation Under Foreclosure Mediation Program

1. If the Lender’s attorney or Lender’s representative fails to appear at mediation, the Court may dismiss the case without prejudice, order Lender’s counsel or Lender’s representative to appear at mediation, or impose such other sanctions as the Court deems appropriate, including but not limited to attorney’s fees and costs.

2. If the Borrower or Borrower’s attorney fails to appear at the mediation, the Court may impose such sanctions as it deems appropriate, including but not limited to attorney’s fees and costs.

3. If the case is not resolved through the mediation process, the Court may tax the Foreclosure Program fees paid by the Lender as a cost and apply them to the final judgment of foreclosure.

F. Program Fees

1. The Lender must pay all Foreclosure Program fees, which are to be paid in two segments:

a. a pre-mediation fee of $400, due upon the filing of the complaint; and

b. a mediation fee of $350, due within ten (10) days of the filing of the Notice of Foreclosure Mediation Program Session.

2. Foreclosure Program fees paid for the initial mediation also will include a second mediation. However, if additional mediation sessions are needed, the Lender will be responsible for the payment of additional Foreclosure Program fees unless the parties agree otherwise. The total Foreclosure Program Fees for the third or any subsequent mediation session are $350.

3. If a case initially determined to be ineligible for the Foreclosure Program is later referred to the Foreclosure Program by the Court, the Foreclosure Program Manager may not charge any additional fee beyond the total Program fee of $750.

4. The Lender is entitled to a refund of Foreclosure Program fees as follows:

a. If the Foreclosure Program Manager determines that the case is not eligible for the Program because:

i. the Truth in Lending Act does not apply;

ii. the property is not homestead property;

iii. the parties completed a qualified pre-suit mediation; or

iv. the parties entered a valid agreement to opt out of the Foreclosure Program,

the Foreclosure Program Manager must refund $375.

b. If the Foreclosure Program Manager is unable to contact the Borrower or determines that the Borrower does not reside in the property; or if the Borrower elects not to participate in the Program, the Foreclosure Program Manager must refund $125, the portion of the pre-mediation fee attributable to foreclosure counseling.

c. Once mediation is scheduled, if the Borrower notifies the Foreclosure Program Manager that the Borrower no longer wishes to participate in the Program; or if the Foreclosure Program Manager receives a notice of settlement at least five (5) business days prior to the mediation, the Foreclosure Program Manager must refund $350, the mediation fee.

G. Designation of Attorney Liaison

Any law firm that has more than five (5) Foreclosure Mediation Program cases pending in the Sixth Judicial Circuit on behalf of the same Lender while this Administrative Order is in effect must appoint two Foreclosure Mediation Program liaisons, one of whom must be an attorney and the other a representative of the Lender or the entity servicing Lender’s mortgages. The law firm must provide written notice of the name, telephone number with extension, email, and mailing address of both liaisons to the Chief Judge and the Foreclosure Program Manager within thirty (30) days of the filing of the sixth Foreclosure Mediation Program case or the effective date of this Administrative Order, whichever is later. Subsequent written notices are due on the first Monday of each February thereafter while this Administrative Order is in effect.

The liaisons must be familiar with this Administrative Order and be capable of answering questions concerning the status of pending cases and the Lender’s internal procedures on processing foreclosures. They should also be readily accessible to discuss administrative and logistical issues affecting the progress of Lender’s cases through the Foreclosure Program. Lender’s counsel must promptly inform the Chief Judge and the Foreclosure Program Manager of any changes in the designation of liaisons or their contact information.

IV. PROCEDURES FOR CASES NOT ELIGIBLE FOR THE FORECLOSURE MEDIATION PROGRAM, INCLUDING COMMERCIAL FORECLOSURES

The following provisions apply to residential mortgage foreclosure cases that are not eligible for automatic referral to the Foreclosure Mediation Program and also apply to commercial foreclosure cases.

A. Residential Foreclosure Cases Not Eligible for Automatic Referral to the Foreclosure Mediation Program

1. A Borrower in a residential mortgage foreclosure case pending as of July 1, 2010, may file a Motion to Participate in the Foreclosure Mediation Program, Form E, if the case has not already been set for a summary judgment hearing and:

a. the Borrower has a current homestead exemption for the subject property;

b. the Borrower currently resides in the property;

c. the note and mortgage is subject to the federal Truth in Lending Act, Regulation Z; and

d. the Borrower has not completed a qualified pre-suit mediation or a qualified pre-suit mediation occurred but the Borrower’s financial situation has changed since the mediation.

2. A Borrower in a residential mortgage foreclosure case pending as of July 1, 2010, who does not meet the criteria listed in paragraph 1, above, may file a Defendant’s Motion to Participate in Circuit Civil Mediation, Form L. This Motion should be filed with the Court as soon as possible.

3. A Borrower who has received a Notice of Ineligibility for the Foreclosure Mediation Program, Form C, may file a Defendant’s Motion to Participate in Circuit Civil Mediation, Form L. This Motion should be filed with the Court as soon as possible after service of the Notice of Ineligibility.

4. A Borrower who has received a Notice of Ineligibility for the Foreclosure Mediation Program but who believes that the case is eligible for the Foreclosure Mediation Program may file a Motion to Participate in the Foreclosure Mediation Program, Form E, based upon the following reasons:

a. the original note and mortgage are subject to the provisions of the federal Truth In Lending Act, Regulation Z; the property is homestead property; and the Borrower resides in the property;

b. there was no stipulation between the Lender and Borrower agreeing that they would not participate in the Foreclosure Program;

c. a qualifying pre-suit mediation did not occur; or

d. a qualifying pre-suit mediation occurred, but no settlement was reached and the Borrower’s financial circumstances have changed since that mediation.

The motion should be filed with the Court as soon as possible after service of the Notice of Ineligibility.

B. Commercial Foreclosure Cases

Commercial foreclosure cases are not eligible for the Foreclosure Mediation Program. A Borrower in a commercial foreclosure case may file a Motion to Participate in Circuit Civil Mediation in accordance with section 44.102, Florida Statutes, and Florida Rules of Civil Procedure 1.700 – 1.730.

C. Authority to Order Mediation

Nothing in this Administrative Order limits the Court’s ability to order any case to Circuit Civil Mediation in accordance with section 44.102, Florida Statutes, and Florida Rules of Civil Procedure 1.700 – 1.730. The provisions in this Administrative Order supplement and do not replace existing statutory and rule provisions regarding referral to mediation.

V. PROCEDURES APPLICABLE TO ALL MORTGAGE FORECLOSURE CASES

This section addresses procedures applicable to all mortgage foreclosure cases, residential and commercial.

A. Summary Judgment Hearings

1. Certificate Filed Prior to Requesting Summary Judgment Hearing Date

Prior to requesting a summary judgment hearing for a mortgage foreclosure, the attorney of record for the Lender must file with the Clerk a Certificate of Compliance with Foreclosure Procedures, Form M. This certifies that the attorney has completed the necessary steps prior to setting the matter for hearing.

2. Foreclosure Judgment Packet Prior to Hearing

Unless the presiding judge provides otherwise, the Lender’s attorney must deliver a foreclosure judgment packet to the presiding judge’s office at least five (5) business days prior to the scheduled hearing on a motion for summary judgment. The packet must include:

a. proposed Uniform Final Judgment of Foreclosure, Form N, including sufficient copies for conforming and stamped, addressed envelopes for all parties;

b. original Promissory Note (unless previously filed, in which case previous filing should be noted);

c. a copy of the Certificate of Compliance with Foreclosure Procedures, Form M; and

d. a copy of the Notice of Hearing.

3. Uniform Judgment of Foreclosure

All proposed final judgments of foreclosure must be in the format of the Uniform Final Judgment of Foreclosure for the Sixth Judicial Circuit, attached hereto as Form N, unless otherwise specifically approved by the judge entering the final judgment. Any changes to Form N must be brought to the attention of the presiding judge at the final judgment hearing.

B. Foreclosure Sales

1. Notice of Sale

The Lender is responsible for completing and submitting the Notice of Sale directly to the appropriate newspaper. Notices must be prepared and published in accordance with chapters 45 and 702, Florida Statutes. The Lender must file the original Notice of Sale and Affidavit of Proof of Publication with the Clerk no later than twenty-four (24) hours prior to the sale. Failure to comply with these procedures may result in the cancellation of the sale.

2. Cancellation of Sale

If a Lender wishes to cancel a sale, a written motion must be filed in substantial compliance with Florida Rules of Civil Procedure Form 1.996(b). The motion also must state the number of times the Lender has previously requested the cancellation of a sale.

C. Bankruptcy

If, prior to the commencement of a foreclosure sale, the Clerk receives a suggestion of bankruptcy on behalf of a named defendant in that foreclosure case, the Clerk is directed to cancel the foreclosure sale. The Clerk must not cancel the sale if the presiding judge or a United States Bankruptcy Judge directs otherwise. The Lender must file with the Court any order from a United States Bankruptcy Judge that restricts the Clerk from cancelling the sale. The filing of this order must be as a separate filing and not as an attachment or exhibit.

D. Clerk of the Circuit Court Responsibilities

1. Retention of Documents

All original mortgages and promissory notes in each mortgage foreclosure case are required to be surrendered to the Court, and the Clerk must retain such documents in the court file. The Clerk shall not return any of these instruments to the parties absent specific order of the Court. Any other exhibits in the Court file may not be released by the Clerk until ninety (90) days after the judgment becomes final.

2. Clerk’s Default

For all residential foreclosure cases filed on or after July 1, 2010, and cases filed prior to July 1, 2010, in which the Court has granted a motion to participate in Foreclosure Program or Circuit Civil Mediation:

a. The Lender shall not file a motion for default until the Foreclosure Program Manager issues a Notice of Ineligibility or Notice of Nonparticipation, or the mediator files a report indicating that the mediation has failed to achieve a settlement.

b. The Clerk of the Circuit Court shall not enter a Clerk’s default until the Foreclosure Program Manager files a Notice of Ineligibility, Notice of Nonparticipation, or the mediator files a report indicating that the mediation has failed to achieve a settlement. If a Lender files a motion for the entry of a default by the Clerk of the Circuit Court in violation this section, the Clerk shall take no action on the motion.

3. Clerk’s Orders of Dismissal

The Clerk shall not prepare an order of dismissal pursuant to Florida Rules of Civil Procedure 1.070(j) for failure to effect service within 120 days if a Notice of Extension of Time to Complete Foreclosure Mediation Program, Form H, has been filed in the case.

E. Additional Procedures

The judicial practice preferences of each judge, which may contain a judge’s individualized procedures for mortgage foreclosure cases, may be found on the Circuit’s website at: http://www.jud6.org/LegalCommunity/PracticeRequirementsofJudges.html.

VI. WRITS OF POSSESSION

The following provisions apply to motions for a writ of possession arising from the mortgage foreclosure of any residential property, regardless of homestead status.

A. Certification Regarding Tenant

An attorney who files a motion for a writ of possession must include a certification regarding the status of any tenants on the property.

1. If there are no tenants other than the Borrower or the spouse, child or parent of the Borrower, a Certification of No Tenants, attached hereto as Form O, must be filed.

2. If there are tenants other than the Borrower or the spouse, child or parent of the Borrower, a Certification of Notice to Tenants, attached hereto as Form P, must be filed. This notice must certify that the tenants have been provided notice as required by the federal Protecting Tenants at Foreclosure Act.

B. Consideration by the Court

When a motion for a writ of possession is filed and accompanied by a Certification of No Tenants, the Clerk shall forward the motion and Certification for review to the section that heard the underlying foreclosure case.

C. Hearing

When a motion for a writ of possession is filed and accompanied by a Certification of Notice to Tenants, the moving party must contact the judicial assistant for the section judge and set the motion for hearing on the uniform motion calendar or such other time as may be directed. Notice of the hearing must be provided to all tenants. At the hearing on the motion, the moving party must bring:

1. a copy of the Certification of Notice to Tenants;

2. a copy of the Final Judgment of Foreclosure; and

3. a copy of the Notice of Sale.

D. Issuance of Writ by Clerk

If a Final Judgment of Foreclosure authorizes the Clerk to issue a writ of possession without further action of the Court, the Clerk shall not do so unless the procedures established in this Administrative Order for a Certification of No Tenants or a Certification of Notice to Tenants have been followed and the Court has specifically authorized the writ.

This Administrative Order rescinds Administrative Order Number 2010-016 PA/PI-CIR effective immediately, and reinstates Administrative Order Number 2009-065 PA/PI-CIR effective immediately. The remainder of this Administrative Order takes effect July 1, 2010, at which time Administrative Order 2009-065 PA/PI-CIR is rescinded.

DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida, this 21 day of May 2010.

ORIGINAL SIGNED May 21, 2010

BY J. THOMAS MCGRADY, CHIEF JUDGE

INDEX OF EXHIBITS TO ADMINISTRATIVE ORDER 2010-025

Form A - FORM A - Plaintiff’s Certificate - NOTE: SEE AO 2012-002

Form B - NOTICE FROM THE COURT TO HOMEOWNER - NOTE: SEE AO 2012-002

Form C - NOTICE OF INELIGIBILITY FOR THE FORECLOSURE MEDIATION PROGRAM

Form D - NOTICE OF BORROWER NONPARTICIPATION IN THE FORECLOSURE MEDIATION PROGRAM

Form E – MOTION TO PARTICIPATE IN THE FORECLOSURE MEDIATION PROGRAM

Form F-1 - BORROWER’S FINANCIAL DISCLOSURE FOR MEDIATION - LOAN MODIFICATION

Form F-2 - BORROWER’S FINANCIAL DISCLOSURE FOR MEDIATION SHORT SALE

Form F-3 - BORROWER’S FINANCIAL DISCLOSURE FOR MEDIATION – DEED IN LIEU OF FORECLOSURE