          Supreme Court of Florida
                                  ____________

                                  No. SC13-684
                                  ____________


 IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE
    1.490 AND NEW FLORIDA RULE OF CIVIL PROCEDURE 1.491.

                                 [March 13, 2014]

PER CURIAM.

      Previously in this case, the Court amended Florida Rule of Civil Procedure

1.490 (Magistrates), as proposed by the Trial Court Budget Commission

(Commission), and published those amendments for comments. See In re Amend.

Fla. Rule Civ. Pro. 1.490, 113 So. 3d 777 (Fla. 2013). After considering the

comments filed with the Court and the Commission’s response, we essentially

move the amendments to rule 1.490 adopted in our May 9, 2013, opinion to a new

Florida Rule of Civil Procedure 1.491 (General Magistrates for Residential

Foreclosure Matters). 1

      As was the case with the May 9, 2013, amendments to rule 1.490, new rule

1.491 is adopted to help alleviate the residential mortgage foreclosure case backlog

      1. We have jurisdiction. See art. V, § 2(a), Fla. Const.
Florida courts are facing by expanding the use of general magistrates in mortgage

foreclosure cases by authorizing referral of those cases to general magistrates

based on implied consent of the parties. Id. at 778-79. The deletion of the

amendments to rule 1.490 and adoption of new rule 1.491 were suggested by the

Florida Bar’s Civil Procedure Rules Committee (Rules Committee) in its comment

filed in this case. The Commission does not oppose moving the rules governing

general magistrates for residential foreclosure matters to a new rule, but offers its

own proposals.

      After considering the proposed amendments offered by the Rules Committee

and the proposals offered by Commission, we amend rule 1.490 and adopt new

rule 1.491, as proposed by the Commission. The majority of the prior amendments

to rule 1.490 are deleted and moved to new rule 1.491. As urged by the

Commission, we retain the amendment to rule 1.490(d) that prohibits magistrates

from practicing in the same case type. This is consistent with new rule 1.491(c)

which governs magistrates appointed to residential mortgage foreclosure matters.

Also, as proposed by the Commission, in order to clarify the time periods for

objecting to a referral, new rule 1.491(b)(1)(A) is adopted to read, “A written

objection to the referral to a magistrate handling residential mortgage foreclosures

must be filed within 10 days of the service of the order of referral or within the

time to respond to the initial pleading, whichever is later.” (Emphasis added). The



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remainder of new rule 1.491 essentially mirrors the provisions governing general

magistrates for residential foreclosure matters being deleted from rule 1.490.

      We again thank the Commission and the Commission’s Foreclosure

Initiative Workgroup for their efforts in assisting the Court in addressing Florida’s

residential mortgage foreclosure case backlog. We also thank the Civil Procedure

Rules Committee for its valuable input on the rules. 2

      Accordingly, the Florida Rules of Civil Procedure are amended as reflected

in the appendix to the opinion. New language is indicated by underscoring;

deletions are indicated by struck-through type. The amendments shall become

effective immediately upon the release of this opinion.

      It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Rules of Civil Procedure

Honorable Margaret O. Steinbeck, Chair, Trial Court Budget Commission, Punta
Gorda, Florida, and Susan Dawson, Senior Attorney, Office of the State Courts
Administrator, Tallahassee, Florida,

      2. If the Rules Committee determines that new rule 1.491 should be
amended in light of amendments to rule 1.490 that the Court adopted after the
Committee suggested the adoption of the new rule in this case, the Committee
should file a new report proposing the amendments. See In re Amend. Fla. Rules
Civ. Pro., 38 Fla. L. Weekly S836 (Fla. Nov. 14, 2013).


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for Petitioner




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                                     APPENDIX

RULE 1.490          MAGISTRATES

       (a) General Magistrates. Judges of the circuit court may appoint as
many general magistrates from among the members of the Bar in the circuit as the
judges find necessary, and the general magistrates shall continue in office until
removed by the court. The order making an appointment shall be recorded. Every
person appointed as a general magistrate shall take the oath required of officers by
the Constitution and the oath shall be recorded before the magistrate discharges
any duties of that office. The chief judge of each judicial circuit shall appoint such
number of magistrates to handle only residential mortgage foreclosures from
among the members of the Bar in the circuit as are necessary to expeditiously
preside over all actions and suits for the foreclosure of a mortgage on residential
real property; and any other matter concerning the foreclosure of a mortgage on
residential real property as allowed by the administrative order of the chief judge.
Magistrates appointed to handle residential mortgage foreclosure matters only shall
not be required to give bond or surety.

      (b)    [No Change]

      (c)    Reference.

             (1) No reference shall be to a magistrate, either general or special,
without the consent of the parties, except consent to a magistrate for residential
mortgage foreclosure actions and suits may be express or may be implied in
accordance with the requirements of this rule.

                    (A) A written objection to the referral to a magistrate
handling residential mortgage foreclosures must be filed within 10 days of the
service of the order of referral.

                     (B) If the time set for the hearing is less than 10 days after
service of the order of referral, the objection must be filed before commencement
of the hearing.
                     (C) If the order of referral is served within the first 20 days
after the service of the initial process, the time to file an objection is extended to
the time within which to file a responsive pleading.




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                   (D) Failure to file a written objection to a referral to the
magistrate handling residential mortgage foreclosures within the applicable time
period is deemed to be consent to the order of referral.

             (2) The order of referral to a magistrate handling residential
mortgage foreclosures shall be in substantial conformity with this rule and shall
contain the following language in bold type:

      A REFERRAL TO A MAGISTRATE FOR A RESIDENTIAL
      MORTGAGE FORECLOSURE MATTER REQUIRES THE
      CONSENT OF ALL PARTIES. YOU ARE ENTITLED TO HAVE
      THIS MATTER HEARD BEFORE A JUDGE. IF YOU DO NOT
      WANT TO HAVE THIS MATTER HEARD BEFORE THE
      MAGISTRATE, YOU MUST FILE A WRITTEN OBJECTION TO
      THE REFERRAL WITHIN 10 DAYS OF THE TIME OF SERVICE
      OF THIS ORDER. IF THE TIME SET FOR THE HEARING IS
      LESS THAN 10 DAYS AFTER THE SERVICE OF THIS ORDER,
      THE OBJECTION MUST BE MADE BEFORE THE HEARING. IF
      THIS ORDER IS SERVED WITHIN THE FIRST 20 DAYS AFTER
      SERVICE OF PROCESS, THE TIME TO FILE AN OBJECTION IS
      EXTENDED TO THE TIME WITHIN WHICH A RESPONSIVE
      PLEADING IS DUE. FAILURE TO FILE A WRITTEN
      OBJECTION WITHIN THE APPLICABLE TIME PERIOD IS
      DEEMED TO BE CONSENT TO THE REFERRAL. REVIEW OF
      THE REPORT AND RECOMMENDATIONS MADE BY THE
      MAGISTRATE SHALL BE BY EXCEPTIONS AS PROVIDED IN
      THIS RULE. A RECORD, WHICH INCLUDES A TRANSCRIPT
      OF PROCEEDINGS, MAY BE REQUIRED TO SUPPORT THE
      EXCEPTIONS.

When a reference is made to a magistrate, either party may set the action for
hearing before the magistrate.

      (d) – (j)    [No Change]

                                 Committee Notes

                                      [No Change]

                                Court Commentary


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                                        [No Change]


RULE 1.491.         GENERAL MAGISTRATES FOR RESIDENTIAL
                    FORECLOSURE MATTERS

       (a) General Magistrates. Judges of the circuit court may appoint as
many general magistrates from among the members of the Bar in the circuit as the
judges find necessary, and the general magistrates shall continue in office until
removed by the court. The order making an appointment shall be recorded. Every
person appointed as a general magistrate shall take the oath required of officers by
the Constitution and the oath shall be recorded before the magistrate discharges
any duties of that office. The chief judge of each judicial circuit shall appoint such
number of magistrates to handle only residential mortgage foreclosures from
among the members of the Bar in the circuit as are necessary to expeditiously
preside over all actions and suits for the foreclosure of a mortgage on residential
real property; and any other matter concerning the foreclosure of a mortgage on
residential real property as allowed by the administrative order of the chief judge.
Magistrates appointed to handle residential mortgage foreclosure matters only shall
not be required to give bond or surety.

      (b)    Reference.

             (1) No reference shall be to a magistrate, either general or special,
without the consent of the parties, except consent to a magistrate for residential
mortgage foreclosure actions and suits may be express or may be implied in
accordance with the requirements of this rule.

                    (A) A written objection to the referral to a magistrate
handling residential mortgage foreclosures must be filed within 10 days of the
service of the order of referral or within the time to respond to the initial pleading,
whichever is later.

                    (B) If the time set for the hearing is less than 10 days after
service of the order of referral, the objection must be filed before commencement
of the hearing.
                    (C) Failure to file a written objection to a referral to the
magistrate handling residential mortgage foreclosures within the applicable time
period is deemed to be consent to the order of referral.

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             (2) The order of referral to a magistrate handling residential
mortgage foreclosures shall be in substantial conformity with this rule and shall
contain the following language in bold type:

      A REFERRAL TO A MAGISTRATE FOR A RESIDENTIAL
      MORTGAGE FORECLOSURE MATTER REQUIRES THE
      CONSENT OF ALL PARTIES. YOU ARE ENTITLED TO HAVE
      THIS MATTER HEARD BEFORE A JUDGE. IF YOU DO NOT
      WANT TO HAVE THIS MATTER HEARD BEFORE A
      MAGISTRATE, YOU MUST FILE A WRITTEN OBJECTION TO
      THE REFERRAL WITHIN 10 DAYS OF THE TIME OF SERVICE
      OF THIS ORDER OR WITHIN THE TIME TO RESPOND TO THE
      INITIAL PLEADING, WHICHEVER IS LATER. IF THE TIME
      SET FOR THE HEARING IS LESS THAN 10 DAYS AFTER THE
      SERVICE OF THIS ORDER, THE OBJECTION MUST BE MADE
      BEFORE THE HEARING. FAILURE TO FILE A WRITTEN
      OBJECTION WITHIN THE APPLICABLE TIME PERIOD IS
      DEEMED TO BE CONSENT TO THE REFERRAL. REVIEW OF
      THE REPORT AND RECOMMENDATIONS MADE BY THE
      MAGISTRATE SHALL BE BY EXCEPTIONS AS PROVIDED IN
      THIS RULE. A RECORD, WHICH INCLUDES A TRANSCRIPT
      OF PROCEEDINGS, MAY BE REQUIRED TO SUPPORT THE
      EXCEPTIONS.

When a reference is made to a magistrate, either party may set the action for
hearing before the magistrate.

       (c) General Powers and Duties. Every magistrate shall perform all of
the duties that pertain to the office according to the practice in chancery and under
the direction of the court. Process issued by a magistrate shall be directed as
provided by law. Hearings before any magistrate, examiner, or commissioner shall
be held in the county where the action is pending, but hearings may be held at any
place by order of the court within or without the state to meet the convenience of
the witnesses or the parties. All grounds of disqualification of a judge shall apply
to magistrates. Magistrates shall not practice law of the same case type in the court
or circuit the magistrate is appointed to serve.

      (d) Hearings. The magistrate shall assign a time and place for
proceedings as soon as reasonably possible after the reference is made and give

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notice to each of the parties. If any party fails to appear, the magistrate may
proceed ex parte or may adjourn the proceeding to a future day, giving notice to
the absent party of the adjournment. The magistrate shall proceed with reasonable
diligence in every reference and with the least practicable delay. Any party may
apply to the court for an order to the magistrate to speed the proceedings and to
make the report and to certify to the court the reason for any delay. Unless
otherwise ordered by the court, all hearings shall be held in the courthouse of the
county where the action is pending. The evidence shall be taken by the magistrate
or by some other person under the magistrate’s authority in the magistrate’s
presence and shall be filed with the magistrate‘s report. The magistrate shall have
authority to examine the parties on oath upon all matters contained in the reference
and to require production of all books, papers, writings, vouchers, and other
documents applicable to it and to examine on oath orally all witnesses produced by
the parties. The magistrate shall admit evidence by deposition or that is otherwise
admissible in court. The magistrate may take all actions concerning evidence that
can be taken by the court and in the same manner. All parties accounting before a
magistrate shall bring in their accounts in the form of accounts payable and
receivable, and any other parties who are not satisfied with the account may
examine the accounting party orally or by interrogatories or deposition as the
magistrate directs. All depositions and documents that have been taken or used
previously in the action may be used before the magistrate.

      (e) Magistrate’s Report. The provisions for the requirement of the
magistrate’s report in rule 1.490 shall apply to proceedings under this rule.

       (f)    Filing Report; Notice; Exceptions. The provisions for filing the
report, notice, and exceptions to the report, including requirements for a record, in
rule 1.490 shall apply to proceedings under this rule.

                                 Committee Notes

2014 Adoption. This rule is the result of an emergency petition by the Trial Court
Budget Commission and is intended to alleviate the backlog of residential
mortgage foreclosure cases that Florida courts are currently facing.




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