Page 89 - Akerman | 2016 Guide to Doing Business in Florida

After bidding closes and the sale is concluded, the Clerk will issue a Certificate of Sale which identifies
the successful bidder at the sale. Pursuant to § 45.0315, Florida Statutes, the Certificate of Sale
eliminates all rights of redemption, unless the court has specified otherwise. Objections to a
foreclosure sale must be filed within 10 days after the Clerk files the Certificate of Sale. Objections are
rare, and even when they occur, are rarely granted. Assuming no one has objected to the foreclosure
sale, the Clerk will issue the Certificate of Title approximately 11 days after the sale. The Certificate of
Title operates as the deed to the property.
9.6.1 2013 Changes to Foreclosure Law and Procedure

During the 2013 Florida state legislative session, the Florida legislature adopted a bill that
resulted in significant changes to the foreclosure procedure in Florida. In addition to changes
to the law that took effect on July 1, 2013, the Legislature requested that the Florida Supreme
Court modify the Florida Rules of Civil Procedure to conform to the act and create forms for
use.

(a) New Complaint Requirements and Possession of the Original Note. For
residential foreclosures, the Complaint must affirmatively allege the plaintiff is
the holder of the note or the factual basis by which the plaintiff is entitled to
enforce the Note under Article 3 of the UCC. This change in the pleading
requirements also applies when servicers are prosecuting a foreclosure
action. If the plaintiff has been delegated authority to file foreclosure, the
complaint must describe the basis for the authority and identify with specificity
the document that gives the plaintiff authority.

To further substantiate standing and to ensure proper enforcement of any
mortgage to be foreclosed, the plaintiff must file a certification under penalty of
perjury when the complaint is filed that the plaintiff is in possession of the
original note, where the note is located, who verified possession and when
they did so. A complete copy of the note with all allonges must be attached.
The original note must be filed before judgment is entered. If the operative
promissory note has been lost, plaintiffs must comply with additional statutory
requirements before a foreclosure will be granted.
(b) Deficiency Judgments. Pursuant to the recent statutory changes, the statute
of limitations on “actions” for a deficiency judgment post-foreclosure expires
one year from “the day after the certificate is issued” by the clerk or the
mortgagee accepts a deed in lieu of foreclosure. The new law also limits any
deficiency in “owner-occupied residential property” to the difference between
the judgment amount and the fair market value of the property as of the sale
date.

9.7 Easements

An easement is generally defined as the right of one party to use land of another for a particular
purpose. An easement is different from other interests in land (e.g., licenses) in that an easement
constitutes an interest in land which runs with the land and usually is permanent in nature. A license, by
contrast, merely gives one permission to do a particular act on another’s land, does not run with title to
the land and is generally revocable at the pleasure of the grantor or after a given, usually relatively short,
duration.

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