HB 259

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
4	lienholders under certain court-ordered sales of
5	property to serve notice on property owners of the
6	possibility of relief through the filing of a bankruptcy
7	petition; specifying notice contents; providing for an
8	affirmative defense for failing to provide notice;
9	amending s. 56.021, F.S.; conforming provisions to
10	changes made by the act; providing applicability;
11	providing an effective date.
12
13	Be It Enacted by the Legislature of the State of Florida:
14
15	Section 1.  Section 702.55, Florida Statutes, is created
16	to read:
17	702.55  Notice of bankruptcy alternative to judicial or
18	sheriff's sale.--
19	(1)  In any foreclosure of a mortgage lien or other lien
20	against homestead property owned by a natural person or
21	persons, the mortgagee or lienholder must serve a separate
22	notice to the natural person property owner or owners
23	containing the following statement in conspicuous type:
24
25	NOTICE REGARDING REQUESTED PROPERTY SALE
26
27	If you are an individual owner of property that may be
28	affected by this action, and if any portion of the property is
29	your home or personal property, please read the following
30	notice carefully: A judicial or sheriff's sale of your
31	property that is subject to the lien of the plaintiff in this
32	case may occur shortly. UNDER CERTAIN CIRCUMSTANCES, the
33	United States Bankruptcy Code may provide a property owner the
34	ability to retain the property subject to the lien of the
35	plaintiff and reorganize the claimed indebtedness if a
36	bankruptcy petition is filed before the judicial or sheriff's
37	sale occurs. In most cases, an individual will be required to
38	complete a credit counseling briefing before being eligible to
39	file a bankruptcy case. Further, a mortgage foreclosure is a
40	complex process. People may approach you about "saving" your
41	home. YOU SHOULD BE CAREFUL ABOUT ANY SUCH PROMISES. There are
42	government agencies and nonprofit organizations you may
43	contact for helpful information about the foreclosure process.
44	For the name and telephone number of an organization near you,
45	please call the Florida Office of Financial Regulation.
46
47	(2)  The notice required by this section shall be served
48	together with the original process and in the manner permitted
49	for service of the complaint and, if so served, the fact of
50	service of the notice must be noted on the summons and the
51	return of service so that the clerk of the court and the
52	judicial officer may ascertain whether the notice has been
53	served. In the case of service of process by publication, the
54	notice need not be separate if the published service of
55	process includes the statement set forth in subsection (1),
56	and such publication of the statement shall constitute
57	compliance with this section. If the foreclosing mortgagee or
58	lienholder fails to serve the notice required by this section
59	with the original process or with the original publication of
60	service of process, the mortgagee or lienholder may cure such
61	failure by subsequently serving the notice in the manner
62	specified in this subsection at any time up to 5 business days
63	before the natural person property owner's answer is due to be
64	served. The notice need not be served on any defendant other
65	than the natural person or persons who are the record owner of
66	the property at the time the notice of lis pendens is
67	recorded.
68	(3)  The failure of the mortgagee or lienholder to serve
69	the notice required by this section constitutes an affirmative
70	defense available to a natural person property owner in an
71	action to foreclose the mortgage or other lien against
72	homestead property, and a natural person property owner who
73	raises the defense has the burden of proving that the property
74	was the homestead of such property owner on the date the
75	foreclosure action was filed. If the defense is timely raised
76	and proved by the natural person property owner, an in
77	personam or deficiency judgment may not be entered against
78	such property owner, but an in rem final judgment of
79	foreclosure may be entered against such property owner. If the
80	affirmative defense is not timely raised and proved, the
81	failure of a mortgagee or lienholder to timely serve the
82	notice required by this section does not bar the entry of an
83	in personam or deficiency judgment.
84	(4)  Failure to serve the notice required by this section
85	does not affect the validity or finality of the judgment of
86	foreclosure, the title or marketability of the real property
87	subject to the judicial sale, or the validity of the title
88	conveyed by the judicial sale.
89	Section 2.  Section 56.021, Florida Statutes, is amended
90	to read:
91	56.021  Executions; issuance and return, alias,
92	etc.--When issued, an execution is valid and effective during
93	the life of the judgment or decree on which it is issued. When
94	fully paid, the officer executing it shall make his or her
95	return and file it in the court that which issued the
96	execution. If the execution is lost or destroyed, the party
97	entitled thereto may have an alias, pluries, or other copies
98	on making proof of such loss or destruction by affidavit and
99	filing it in the court issuing the execution. However, if the
100	judgment debtor or property owner is a natural person,
101	execution may not be issued before the judgment creditor has
102	filed and served a notice upon the judgment debtor or property
103	owner in the same form as required by s. 702.55.
104	Section 3.  This act shall take effect July 1, 2008, and
105	shall apply only to foreclosure proceedings commenced, and to
106	writs of execution issued, after that date.

CODING: Words stricken are deletions; words underlined are additions.