Chapter 6-1 Introduction

6-1 Introduction

6-1:1 The Commencement of a Foreclosure Action

A mortgage foreclosure is an action in equity under Florida law.¹ A mortgage foreclosure action in Florida is conducted like other kinds of civil litigation, culminating in a judicial auction of the encumbered property to help satisfy the judgment.²

A plaintiff seeking to foreclose a mortgage in Florida initiates the action by filing a complaint with the clerk of court.³ In additional to the equitable remedy of mortgage foreclosure, a complaint may also assert legal claims for money damages under the promissory note or other legal and equitable claims.⁴ This chapter will discuss the considerations that a plaintiff should take when preparing a complaint in a mortgage foreclosure action.

6-1:2 Review of Title

As discussed in Chapter 5, the plaintiff should perform a title examination of the property to be foreclosed before filing its complaint. Doing so will identify parties whose interests in the property will need to be foreclosed for the plaintiff to obtain marketable title.⁵ A title review also will confirm the priority of the plaintiff's mortgage on the property.⁶ If a plaintiff fails to examine title before filing its foreclosure action, it may neglect to include necessary parties and its final judgment of foreclosure will not be effective as to those parties' interests.⁷ The failure to examine title before filing a complaint also may result in a waiver of claims that could be made under an applicable title insurance policy. Accordingly, an examination of title is an important preliminary step in the preparation of the complaint.

6-1:3 The Appropriate Venue and Forum for the Action

A plaintiff must file its complaint in the correct venue to ensure that the circuit court can exercise subject matter jurisdiction over the action.⁸ A circuit court generally cannot exercise in rem jurisdiction over property located outside the court's territorial boundaries.⁹ Therefore, a plaintiff must file its mortgage foreclosure complaint in the county in which the encumbered property lies.¹⁰ This is known as the "local action rule."¹¹

There is an exception to the local action rule: when a mortgage encumbers two or more pieces of property located in different counties, the plaintiff may file its mortgage foreclosure complaint in any of the counties in which any of the properties lie.¹² The properties do not need to be contiguous for this exception to apply.¹³

In contrast, an action to enforce only a promissory note—without seeking the foreclosure of a mortgage—must be filed in the county in which the promissory note was signed by the maker, by one of the makers, or in which the maker or one of the makers resides.¹⁴ Where the plaintiff files an action for mortgage foreclosure as well as to enforce a promissory note, and the plaintiff drops the mortgage foreclosure claim, the action may be subject to transfer if one of the defendants shows that venue is no longer proper in that county.¹⁵

As for the proper forum court, while the forum for most actions is determined by the amount in controversy, a lien foreclosure that falls within the county court's statutorily set threshold jurisdictional amount, which is set to increase in 2020 and 2023, may be filed in either the county court or circuit court.¹⁶ Frequently, mortgage foreclosure actions are filed in the circuit court.

A plaintiff is not required to plead specific facts in support of its selection of venue in its complaint.¹⁷ A general allegation that venue is appropriate in the county is sufficient. If one of the defendants believes that the foreclosure action was filed...