The right to be heard at the hearing to show cause is waived if the defendant, after being served as provided by law with an order to show cause, engages in conduct that clearly shows that the defendant has relinquished the right to be heard on that order. The defendant's failure to file defenses by a motion or by a sworn or verified answer or to appear at the hearing presumptively constitutes conduct that clearly shows that the defendant has relinquished the right to be heard.

If the court finds that the defendant has waived the right to be heard, the court may promptly enter an order requiring payment in the amount provided or an order to vacate the premises. Under and order to vacate the premises, the order is delivered to the County Sheriff for eviction should the mortgagor continue to occupy the premises. If the court finds that the mortgagor has not waived the right to be heard on the order to show cause, the court will, at the hearing on the order to show cause, consider the affidavits and other showings made by the parties appearing and make a determination of the probable validity of the underlying claim alleged against the mortgagor and the mortgagor's defenses. If the court determines that the mortgagee is likely to prevail in the foreclosure action, the court shall enter an order requiring the mortgagor to make the payment to the mortgagee and provide for a remedy. However, the order shall be stayed pending final adjudication of the claims of the parties if the mortgagor files with the court a written undertaking executed by a surety approved by the court in an amount equal to the unpaid balance of the mortgage on the property, including all principal, interest, unpaid taxes, and insurance premiums paid by the mortgagee.

In the event the court enters an order requiring the mortgagor to make payments to the mortgagee, payments shall be payable at such intervals and in such amounts provided for in the mortgage instrument before acceleration or maturity. The obligation to make payments pursuant to any order entered under this subsection shall commence from the date of the motion filed hereunder. The order shall be served upon the mortgagor no later than 20 days before the date specified for the first payment. The order may permit, but shall not require the mortgagee to take all appropriate steps to secure the premises during the foreclosure action.

In the event the court enters an order requiring payments the order shall also provide that the mortgagee shall be entitled to possession of the premises upon the failure of the mortgagor to make the payment required in the order unless at the hearing on the order to show cause the court finds good cause to order some other method of enforcement of its order.

All amounts paid pursuant to this section shall be credited against the mortgage obligation in accordance with the terms of the loan documents, provided, however, that any payments made under this section will not constitute a cure of any default or a waiver or any other defense to the mortgage foreclosure action. Upon the filing of an affidavit with the clerk that the premises have not been vacated pursuant to the court order, the clerk shall issue to the sheriff a writ for possession which shall be governed by the provisions of Florida state laws.

It is important for people facing foreclosure to understand their rights and to take the proper steps to ensure these rights are protected. It is very possible that one can stop foreclosure on their property by utilizing the methods lenders provide to address their situation.

Posted by David Phaff on December 13, 2008 at 12:00 AM

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