Order to Show Cause – Florida Statute 701.10
In recent months we have been seeing more and more Plaintiff’s firms attempting to obtain final judgment through the use of Florida Statute 702.10. The reason being is that it can often be quicker than going for summary judgment or trying to obtain judgment at trial. It works like this: Plaintiff will file a Motion for Order to Show Cause for Entry of Final Judgment of Foreclosure and the court will review the file in chambers and without a hearing. If the court “finds that the complaint is verified, complies with s. 702.015, and alleges a cause of action to foreclose on real property, the court shall promptly issue an order directed to the other parties named in the action to show cause why a final judgment of foreclosure should not be entered.” Florida Statute 702.10(1). An order to show cause hearing is then held whereby the court will determine whether or not to enter final judgment.
However, when read in its entirety, it is much more difficult for a Plaintiff to obtain a final judgment using this statute. 702.10(1)(a)(3) states that the order sent out by the court alerting defendant to appear at an order to show cause hearing must state that the filing of defenses by a “motion, responsive pleading, an affidavit, or other papers before the hearing to show cause that raise a genuine issue of material fact which would preclude the entry of summary judgment or otherwise constitute a legal defense to foreclosure shall constitute cause for the court not to enter final judgment.” Per this paragraph, it appears that the mere filing of some sort of defense is enough to defeat an order to show cause. However this is just what the order must state.
702.10(1)(b) reiterates that “[i]f a defendant files defenses by a motion, a verified answer, affidavits, or other papers or presents evidence at or before the hearing which raise a genuine issue of material fact which would preclude entry of summary judgment OR otherwise constitute a legal defense to foreclosure, such action constitutes cause and precludes the entry of final judgment at the hearing to show cause.” (emphasis added). Per the plain reading of the statutes, a filing of some sort of defense will preclude the entry of final judgment at the order to show cause hearing.