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A bill to be entitled

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An act relating to judicial and execution sales of

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property; creating s. 702.55, F.S.; requiring that, before

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certain court-ordered sales of property, the lienholder

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serve notice on the property owner of the possibility of

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relief through the filing of a bankruptcy petition and

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also warning against purported foreclosure "saving"

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schemes; specifying the content of the notice; providing

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for an affirmative defense for failing to provide notice;

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amending s. 56.021, F.S., relating to the required service

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of notice of potential relief through bankruptcy;

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conforming provisions to changes made by the act;

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providing an effective date.

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

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     Section 1.  Section 702.55, Florida Statutes, is created to

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read:

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     702.55 Notice of bankruptcy alternative to judicial or

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sheriff's sale.--

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

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against homestead property owned by a natural person or persons,

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the mortgagee or lienholder must serve a separate notice to the

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natural person property owner or owners containing the following

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statement in conspicuous type:

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NOTICE REGARDING REQUESTED PROPERTY SALE

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If you are an individual owner of property that may be

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affected by this action, and if any portion of the

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property is your home or personal property, please read

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the following notice carefully: A judicial or sheriff's

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sale of your property that is subject to the lien of

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the plaintiff in this case may occur shortly. UNDER

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CERTAIN CIRCUMSTANCES, the United States Bankruptcy

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Code may provide a property owner the ability to retain

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the liened property and reorganize the claimed

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indebtedness if a bankruptcy petition is filed before

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the judicial or sheriff's sale occurs. In most cases,

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an individual will be required to complete a credit

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counseling briefing before being eligible to file a

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bankruptcy case.

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Further, a mortgage foreclosure is a complex process.

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People may approach you about "saving" your home. YOU

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SHOULD BE CAREFUL ABOUT ANY SUCH PROMISES. There are

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government agencies and nonprofit organizations you may

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contact for helpful information about the foreclosure

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process. For the name and telephone number of an

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organization near you, please call the Florida Office

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of Financial Regulation.

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     (2) The notice required by this section must be served

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together with the original process and in the manner permitted

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for service of the complaint, and, if so served, the fact of

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service of the notice must be noted on the summons and the

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

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judicial officer may ascertain whether the notice has been

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

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notice need not be separate if the published service of process

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includes the statement set forth in subsection (1), and such

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publication of the statement constitutes compliance with this

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section. If the foreclosing mortgagee or lienholder fails to

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serve the notice required by this section with the original

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process or with the original publication of service of process,

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the mortgagee or lienholder may cure such failure by

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subsequently serving the notice in the manner specified in this

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subsection at any time up to 5 business days before the natural

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person property owner's answer is due to be served. The notice

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need not be served on any defendant other than the natural

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person or persons who are the record owner of the property at

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the time the notice of lis pendens is recorded.

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

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the notice required by this section constitutes an affirmative

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defense available to a natural person property owner in an

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action to foreclose the mortgage or other lien against

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homestead property, and a natural person property owner who

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raises that defense has the burden of proving that the property

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was the homestead of such property owner on the date the

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foreclosure action was filed. If the defense is timely raised

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and proved by the natural person property owner, an in personam

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or deficiency judgment may not be entered against the property

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owner, but an in rem final judgment of foreclosure may be

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entered against the property owner. If the affirmative defense

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is not timely raised and proved, the failure of the mortgagee

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or lienholder to timely serve the notice required by this

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section is not a bar to the entry of an in personam or

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deficiency judgment.

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

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does not affect the validity or finality of the judgment of

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foreclosure, the validity of title or marketability of the real

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property subject to the judicial sale, or the validity of title

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conveyed by the judicial sale.

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     Section 2.  Section 56.021, Florida Statutes, is amended

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to read:

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     56.021  Executions; issuance and return, alias, etc.--When

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issued, an execution is valid and effective during the life of

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the judgment or decree on which it is issued.  When fully paid,

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the officer executing it shall make his or her return and file

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it in the court that which issued the execution. If the

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execution is lost or destroyed, the party entitled thereto may

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have an alias, pluries, or other copies on making proof of such

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loss or destruction by affidavit and filing it in the court

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issuing the execution. However, if the judgment debtor or

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property owner is a natural person, execution may not be issued

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before the judgment creditor has filed and served a notice upon

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such judgment debtor or property owner in the same form as

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required by s. 702.55.

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     Section 3.  This act shall take effect July 1, 2008, and

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shall apply only to foreclosure proceedings commenced, and to

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writs of execution issued, after that date.