Senate Bill sb1460e1

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    CS for SB 1460                                 First Engrossed



  1                      A bill to be entitled

  2         An act relating to judicial and execution sales

  3         of property; creating s. 702.55, F.S.;

  4         requiring that, before certain court-ordered

  5         sales of property, the lienholder serve notice

  6         on the property owner of the possibility of

  7         relief through the filing of a bankruptcy

  8         petition; specifying the content of the notice;

  9         providing for an affirmative defense for

10         failing to provide notice; amending s. 56.021,

11         F.S., relating to the required service of

12         notice of potential relief through bankruptcy;

13         conforming provisions to changes made by the

14         act; amending s. 702.035, F.S.; clarifying that

15         the number of days for publishing a notice

16         relating to a foreclosure proceeding excludes

17         legal holidays; providing an effective date.

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19  Be It Enacted by the Legislature of the State of Florida:

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21         Section 1.  Section 702.55, Florida Statutes, is

22  created to read:

23         702.55  Notice of bankruptcy alternative to judicial or

24  sheriff's sale.--

25         (1)  In any foreclosure of a mortgage lien or other

26  lien against homestead property owned by a natural person or

27  persons, the mortgagee or lienholder must serve a separate

28  notice to the natural person property owner or owners

29  containing the following statement in conspicuous type:

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31                     NOTICE OF PROPERTY SALE


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    CS for SB 1460                                 First Engrossed



 1  

 2         If you are an individual owner of property that

 3         may be affected by this action, and if any

 4         portion of the property is your home or

 5         personal property, please read the following

 6         notice carefully: A judicial or sheriff's sale

 7         of your property that is subject to the lien of

 8         the plaintiff in this case may occur shortly.

 9         UNDER CERTAIN CIRCUMSTANCES, the United States

10         Bankruptcy Code may provide a property owner

11         the ability to retain the liened property and

12         reorganize the claimed indebtedness if a

13         bankruptcy petition is filed before the

14         judicial or sheriff's sale occurs. In most

15         cases, an individual will be required to

16         complete a credit counseling briefing before

17         being eligible to file a bankruptcy case.

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19         (2)  The notice required by this section shall be

20  served together with the original process and in the manner

21  permitted for service of the complaint, and, if so served, the

22  fact of service of the notice shall be noted on the summons

23  and the return of service so that the clerk of the court and

24  the judicial officer may ascertain whether the notice has been

25  served. In the case of service of process by publication, the

26  notice need not be separate if the published service of

27  process includes the statement set forth in subsection (1),

28  and such publication of the statement shall constitute

29  compliance with this section. If the foreclosing mortgagee or

30  lienholder fails to serve the notice required by this section

31  with the original process or with the original publication of


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    CS for SB 1460                                 First Engrossed



 1  service of process, the mortgagee or lienholder may cure such

 2  failure by subsequently serving the notice in the manner

 3  specified in this subsection at any time up to 5 business days

 4  before the natural person property owner's answer is due to be

 5  served. The notice need not be served on any defendant other

 6  than the natural person or persons who are the record owner of

 7  the property at the time the notice of lis pendens is

 8  recorded.

 9         (3)  The failure of the mortgagee or lienholder to

10  serve the notice required by this section shall constitute an

11  affirmative defense available to a natural person property

12  owner in an action to foreclose the mortgage or other lien

13  against homestead property, and a natural person property

14  owner who raises the defense shall have the burden of proving

15  that the property is the homestead of such property owner. If

16  the defense is timely raised and proved by the natural person

17  property owner, an in personam or deficiency judgment may not

18  be entered against such property owner, but an in rem final

19  judgment of foreclosure may be entered against such property

20  owner. If the affirmative defense is not timely raised and

21  proved, the failure of a mortgagee or lienholder to timely

22  serve the notice required by this section shall be no bar to

23  the entry of an in personam or deficiency judgment.

24         (4)  Failure to serve the notice required by this

25  section shall not affect the validity or finality of the

26  judgment of foreclosure, nor affect the title or marketability

27  of the real property subject to the judicial sale, nor affect

28  the validity of the title conveyed by the judicial sale.

29         Section 2.  Section 56.021, Florida Statutes, is

30  amended to read:

31  


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    CS for SB 1460                                 First Engrossed



 1         56.021  Executions; issuance and return, alias,

 2  etc.--When issued, an execution is valid and effective during

 3  the life of the judgment or decree on which it is issued.

 4  When fully paid, the officer executing it shall make his or

 5  her return and file it in the court which issued the

 6  execution. If the execution is lost or destroyed, the party

 7  entitled thereto may have an alias, pluries or other copies on

 8  making proof of such loss or destruction by affidavit and

 9  filing it in the court issuing the execution. However, if the

10  judgment debtor or property owner is a natural person,

11  execution may not be issued before the judgment creditor has

12  filed and served a notice upon such judgment debtor or

13  property owner in the same form as required by s. 702.55.

14         Section 3.  Section 702.035, Florida Statutes, is

15  amended to read:

16         702.035  Legal notice concerning foreclosure

17  proceedings.--Whenever a legal advertisement, publication, or

18  notice relating to a foreclosure proceeding is required to be

19  placed in a newspaper, it is the responsibility of the

20  petitioner or petitioner's attorney to place such

21  advertisement, publication, or notice. For counties with more

22  than 1 million total population as reflected in the 2000 most

23  recent Official Decennial Census of the United States Census

24  Bureau as shown on the official website of the United States

25  Census Bureau, any notice of publication required by this

26  section shall be deemed to have been published in accordance

27  with the law if the notice is published in a newspaper that

28  has been entered as a periodical matter at a post office in

29  the county in which the newspaper is published, is published a

30  minimum of 5 days a week, exclusive of legal holidays, and has

31  been in existence and published a minimum of 5 days a week,


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    CS for SB 1460                                 First Engrossed



 1  exclusive of legal holidays, for 1 year or is a direct

 2  successor to a newspaper that has been in existence for 1 year

 3  that has been published a minimum of 5 days a week, exclusive

 4  of legal holidays. The advertisement, publication, or notice

 5  shall be placed directly by the attorney for the petitioner,

 6  by the petitioner if acting pro se, or by the clerk of the

 7  court. Only the actual costs charged by the newspaper for the

 8  advertisement, publication, or notice may be charged as costs

 9  in the action.

10         Section 4.  This act shall take effect July 1, 2007,

11  and shall apply only to foreclosure proceedings commenced, and

12  to writs of execution issued, after that date.

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