Florida Senate - 2009 SB 228
By Senator Joyner
18-00228-09 2009228__
1 A bill to be entitled
2 An act relating to judicial and execution sales of
3 property; creating s. 702.55, F.S.; requiring a
4 leinholder to serve a certain notice on a homestead
5 owner before a foreclosure sale; specifying that the
6 notice must inform of bankruptcy as a potential
7 alternative to foreclosure and warning against
8 foreclosure “saving” schemes; providing for an
9 affirmative defense from foreclosure for failure to
10 provide notice; amending s. 56.021, F.S., relating to
11 the required service of notice of potential relief
12 through bankruptcy; conforming provisions to changes
13 made by the act; providing for application; providing
14 an effective date.
15
16 Be It Enacted by the Legislature of the State of Florida:
17
18 Section 1. Section 702.55, Florida Statutes, is created to
19 read:
20 702.55 Notice of bankruptcy alternative to judicial or
21 sheriff's sale.—
22 (1) In any foreclosure of a mortgage lien or other lien
23 against homestead property owned by a natural person or persons,
24 the mortgagee or lienholder must serve a separate notice to the
25 natural person property owner or owners containing the following
26 statement in conspicuous type:
27 NOTICE REGARDING REQUESTED PROPERTY SALE
28 If you are an individual owner of property that may be
29 affected by this action, and if any portion of the
30 property is your home or personal property, please
31 read the following notice carefully: A judicial or
32 sheriff's sale of your property that is subject to the
33 lien of the plaintiff in this case may occur shortly.
34 UNDER CERTAIN CIRCUMSTANCES, the United States
35 Bankruptcy Code may provide a property owner the
36 ability to retain the liened property and reorganize
37 the claimed indebtedness if a bankruptcy petition is
38 filed before the judicial or sheriff's sale occurs. In
39 most cases, an individual will be required to complete
40 a credit counseling briefing before being eligible to
41 file a bankruptcy case.
42 Further, a mortgage foreclosure is a complex process.
43 People may approach you about “saving” your home. YOU
44 SHOULD BE CAREFUL ABOUT ANY SUCH PROMISES. There are
45 government agencies and nonprofit organizations you
46 may contact for helpful information about the
47 foreclosure process. For the name and telephone number
48 of an organization near you, please call the United
49 States Department of Housing and Urban Development.
50 (2) The notice required by this section must be served
51 together with the original process and in the manner permitted
52 for service of the complaint, and, if so served, the fact of
53 service of the notice must be noted on the summons and the
54 return of service so that the clerk of the court and the
55 judicial officer may ascertain whether the notice has been
56 served. In the case of service of process by publication, the
57 notice need not be separate if the published service of process
58 includes the statement set forth in subsection (1), and such
59 publication of the statement constitutes compliance with this
60 section. If the foreclosing mortgagee or lienholder fails to
61 serve the notice required by this section with the original
62 process or with the original publication of service of process,
63 the mortgagee or lienholder may cure such failure by
64 subsequently serving the notice in the manner specified in this
65 subsection at any time up to 5 business days before the natural
66 person property owner's answer is due to be served. The notice
67 need not be served on any defendant other than the natural
68 person or persons who are the record owner of the property at
69 the time the notice of lis pendens is recorded.
70 (3) The failure of the mortgagee or lienholder to serve the
71 notice required by this section constitutes an affirmative
72 defense available to a natural person property owner in an
73 action to foreclose the mortgage or other lien against homestead
74 property, and a natural person property owner who raises that
75 defense has the burden of proving that the property was the
76 homestead of such property owner on the date the foreclosure
77 action was filed. If the defense is timely raised and proved by
78 the natural person property owner, an in personam or deficiency
79 judgment may not be entered against the property owner, but an
80 in rem final judgment of foreclosure may be entered against the
81 property owner. If the affirmative defense is not timely raised
82 and proved, the failure of the mortgagee or lienholder to timely
83 serve the notice required by this section is not a bar to the
84 entry of an in personam or deficiency judgment.
85 (4) Failure to serve the notice required by this section
86 does not affect the validity or finality of the judgment of
87 foreclosure, the validity of title or marketability of the real
88 property subject to the judicial sale, or the validity of title
89 conveyed by the judicial sale.
90 Section 2. Section 56.021, Florida Statutes, is amended to
91 read:
92 56.021 Executions; issuance and return, alias, etc.—When
93 issued, an execution is valid and effective during the life of
94 the judgment or decree on which it is issued. When fully paid,
95 the officer executing it shall make his or her return and file
96 it in the court that which issued the execution. If the
97 execution is lost or destroyed, the party entitled thereto may
98 have an alias, pluries, or other copies on making proof of such
99 loss or destruction by affidavit and filing it in the court
100 issuing the execution. However, if the judgment debtor or
101 property owner is a natural person, execution may not be issued
102 before the judgment creditor has filed and served a notice upon
103 such judgment debtor or property owner in the same form as
104 required by s. 702.55.
105 Section 3. This act shall take effect July 1, 2009, and
106 applies only to foreclosure proceedings commenced, and to writs
107 of execution issued, on or after that date.