Chapter 1-1 Introduction

1-1 Introduction

Florida is one of the approximately 15 judicial foreclosure states that requires judicial intervention to foreclose a mortgage.¹ Mortgage foreclosures in Florida are governed by statutes and guided by local procedures. While each jurisdiction operates according to the available court resources and the volume of foreclosure filings, the law provides a blueprint which must be followed in every foreclosure action in Florida. Due to the high volume of foreclosure actions in the state of Florida and the associated litigation, this blueprint is constantly evolving. This book is a resource for those foreclosure actions which are litigated, but a basic understanding of the process provides the foundation upon which a case is built and defended. This first chapter is intended to provide the skeleton, but the chapters that follow will supply the muscle.

1-1:1 Elements of Foreclosure

Mortgage foreclosure is an action in equity.² The elements of a mortgage foreclosure action are consistent with those of any claim for breach of contract.³ A mortgagee must first demonstrate the existence of a contract (the mortgage and corresponding promissory note) which was executed by the mortgagor.⁴ Where the party attempting to foreclose is not the mortgagee named on the contract, the plaintiff must demonstrate that it has 'standing' to foreclose.⁵ For a complete discussion of standing, see Chapter 4: Standing to Foreclose.

Once the existence of a contract and the identity of the proper parties are established, the plaintiff must show that the mortgagor has breached the mortgage contract.⁶ Finally, the plaintiff must demonstrate that it has suffered damages.⁷ If the mortgage contract contains any conditions precedent to foreclosure, satisfaction of conditions precedent becomes an additional element necessary to proving entitlement to foreclose.⁸ For a complete discussion of conditions precedent to foreclosure, see Chapter 2: Default and Acceleration.

1-1:2 Title Reports/Discovery of Junior Liens

Prior to the filing of a foreclosure action in Florida, the plaintiff must obtain and examine a title report to discover the existence of all junior lienholders and potential defects in title. Junior lienholders are necessary parties to the action and must be specifically identified in the lis pendens and final judgment, or their liens will be unaffected by the judgment.⁹ For a complete discussion of title considerations in foreclosure, see Chapter 5: Title Considerations...