Florida Senate - 2007 SENATOR AMENDMENT
Bill No. CS for SB 1460
Barcode 104818
CHAMBER ACTION
Senate House
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04/25/2007 02:22 PM .
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11 Senator Joyner moved the following amendment:
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13 Senate Amendment (with title amendment)
14 Delete everything after the enacting clause
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16 and insert:
17 Section 1. Section 702.55, Florida Statutes, is
18 created to read:
19 702.55 Notice of bankruptcy alternative to judicial or
20 sheriff's sale.--
21 (1) In any foreclosure of a mortgage lien or other
22 lien against homestead property owned by a natural person or
23 persons, the mortgagee or lienholder must serve a separate
24 notice to the natural person property owner or owners
25 containing the following statement in conspicuous type:
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27 NOTICE OF PROPERTY SALE
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29 If you are an individual owner of property that
30 may be affected by this action, and if any
31 portion of the property is your home or
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Florida Senate - 2007 SENATOR AMENDMENT
Bill No. CS for SB 1460
Barcode 104818
1 personal property, please read the following
2 notice carefully: A judicial or sheriff's sale
3 of your property that is subject to the lien of
4 the plaintiff in this case may occur shortly.
5 UNDER CERTAIN CIRCUMSTANCES, the United States
6 Bankruptcy Code may provide a property owner
7 the ability to retain the liened property and
8 reorganize the claimed indebtedness if a
9 bankruptcy petition is filed before the
10 judicial or sheriff's sale occurs. In most
11 cases, an individual will be required to
12 complete a credit counseling briefing before
13 being eligible to file a bankruptcy case.
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15 (2) The notice required by this section shall be
16 served together with the original process and in the manner
17 permitted for service of the complaint, and, if so served, the
18 fact of service of the notice shall be noted on the summons
19 and the return of service so that the clerk of the court and
20 the judicial officer may ascertain whether the notice has been
21 served. In the case of service of process by publication, the
22 notice need not be separate if the published service of
23 process includes the statement set forth in subsection (1),
24 and such publication of the statement shall constitute
25 compliance with this section. If the foreclosing mortgagee or
26 lienholder fails to serve the notice required by this section
27 with the original process or with the original publication of
28 service of process, the mortgagee or lienholder may cure such
29 failure by subsequently serving the notice in the manner
30 specified in this subsection at any time up to 5 business days
31 before the natural person property owner's answer is due to be
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Florida Senate - 2007 SENATOR AMENDMENT
Bill No. CS for SB 1460
Barcode 104818
1 served. The notice need not be served on any defendant other
2 than the natural person or persons who are the record owner of
3 the property at the time the notice of lis pendens is
4 recorded.
5 (3) The failure of the mortgagee or lienholder to
6 serve the notice required by this section shall constitute an
7 affirmative defense available to a natural person property
8 owner in an action to foreclose the mortgage or other lien
9 against homestead property, and a natural person property
10 owner who raises the defense shall have the burden of proving
11 that the property is the homestead of such property owner. If
12 the defense is timely raised and proved by the natural person
13 property owner, an in personam or deficiency judgment may not
14 be entered against such property owner, but an in rem final
15 judgment of foreclosure may be entered against such property
16 owner. If the affirmative defense is not timely raised and
17 proved, the failure of a mortgagee or lienholder to timely
18 serve the notice required by this section shall be no bar to
19 the entry of an in personam or deficiency judgment.
20 (4) Failure to serve the notice required by this
21 section shall not affect the validity or finality of the
22 judgment of foreclosure, nor affect the title or marketability
23 of the real property subject to the judicial sale, nor affect
24 the validity of the title conveyed by the judicial sale.
25 Section 2. Section 56.021, Florida Statutes, is
26 amended to read:
27 56.021 Executions; issuance and return, alias,
28 etc.--When issued, an execution is valid and effective during
29 the life of the judgment or decree on which it is issued.
30 When fully paid, the officer executing it shall make his or
31 her return and file it in the court which issued the
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Florida Senate - 2007 SENATOR AMENDMENT
Bill No. CS for SB 1460
Barcode 104818
1 execution. If the execution is lost or destroyed, the party
2 entitled thereto may have an alias, pluries or other copies on
3 making proof of such loss or destruction by affidavit and
4 filing it in the court issuing the execution. However, if the
5 judgment debtor or property owner is a natural person,
6 execution may not be issued before the judgment creditor has
7 filed and served a notice upon such judgment debtor or
8 property owner in the same form as required by s. 702.55.
9 Section 3. Section 702.035, Florida Statutes, is
10 amended to read:
11 702.035 Legal notice concerning foreclosure
12 proceedings.--Whenever a legal advertisement, publication, or
13 notice relating to a foreclosure proceeding is required to be
14 placed in a newspaper, it is the responsibility of the
15 petitioner or petitioner's attorney to place such
16 advertisement, publication, or notice. For counties with more
17 than 1 million total population as reflected in the 2000 most
18 recent Official Decennial Census of the United States Census
19 Bureau as shown on the official website of the United States
20 Census Bureau, any notice of publication required by this
21 section shall be deemed to have been published in accordance
22 with the law if the notice is published in a newspaper that
23 has been entered as a periodical matter at a post office in
24 the county in which the newspaper is published, is published a
25 minimum of 5 days a week, exclusive of legal holidays, and has
26 been in existence and published a minimum of 5 days a week,
27 exclusive of legal holidays, for 1 year or is a direct
28 successor to a newspaper that has been in existence for 1 year
29 that has been published a minimum of 5 days a week, exclusive
30 of legal holidays. The advertisement, publication, or notice
31 shall be placed directly by the attorney for the petitioner,
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Florida Senate - 2007 SENATOR AMENDMENT
Bill No. CS for SB 1460
Barcode 104818
1 by the petitioner if acting pro se, or by the clerk of the
2 court. Only the actual costs charged by the newspaper for the
3 advertisement, publication, or notice may be charged as costs
4 in the action.
5 Section 4. This act shall take effect July 1, 2007,
6 and shall apply only to foreclosure proceedings commenced, and
7 to writs of execution issued, after that date.
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10 ================ T I T L E A M E N D M E N T ===============
11 And the title is amended as follows:
12 Delete everything before the enacting clause
13
14 and insert:
15 A bill to be entitled
16 An act relating to judicial and execution sales
17 of property; creating s. 702.55, F.S.;
18 requiring that, before certain court-ordered
19 sales of property, the lienholder serve notice
20 on the property owner of the possibility of
21 relief through the filing of a bankruptcy
22 petition; specifying the content of the notice;
23 providing for an affirmative defense for
24 failing to provide notice; amending s. 56.021,
25 F.S., relating to the required service of
26 notice of potential relief through bankruptcy;
27 conforming provisions to changes made by the
28 act; amending s. 702.035, F.S.; clarifying that
29 the number of days for publishing a notice
30 relating to a foreclosure proceeding excludes
31 legal holidays; providing an effective date.
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