HB 1411

1
A bill to be entitled
2An act relating to timeshares; amending s. 721.07, F.S.;
3providing lien disclosure requirements for filed public
4offering statements for certain timeshare plans; amending
5s. 721.16, F.S.; authorizing a managing entity to bring
6judicial and nonjudicial actions to foreclose certain
7liens under specified conditions; renaming part III of
8chapter 721, F.S.; amending s. 721.81, F.S.; revising and
9providing legislative purposes of the part; amending s.
10721.82 F.S.; revising and providing definitions; amending
11s. 721.83, F.S.; revising application to apply to judicial
12foreclosure actions; amending s. 721.85, F.S.; conforming
13provisions to changes made by this act; creating s.
14721.855, F.S.; establishing procedure for the nonjudicial
15foreclosure of assessment liens; providing for the
16appointment of a trustee; providing recording requirements
17for such liens; providing procedures for the initiation of
18a nonjudicial foreclosure procedure against a timeshare
19interest; providing procedures for an obligor's objection
20to the nonjudicial foreclosure procedure; providing
21conditions to a trustee's exercise of power of sale;
22providing requirements for a notice of default and intent
23to sell; providing requirements for a notice of sale;
24providing requirements for a trustee's certificate of
25compliance; providing requirements for the sale by auction
26of foreclosed encumbered timeshare interests; providing
27for the effect of a trustee's sale; providing requirements
28for a trustee's deed; providing for the disposition of
29proceeds of the sale; providing that the nonjudicial
30foreclosure procedure does not impair or otherwise affect
31the right to bring certain actions; providing application;
32providing for actions for failure to follow the
33nonjudicial foreclosure procedure; creating s. 721.856,
34F.S.; establishing procedure for the nonjudicial
35foreclosure of mortgage liens; providing for the
36appointment of a trustee; providing recording requirements
37for such liens; providing procedures for the initiation of
38a nonjudicial foreclosure procedure against a timeshare
39interest; providing procedures for an obligor's objection
40to the nonjudicial foreclosure procedure; providing
41conditions to a trustee's exercise of power of sale;
42providing requirements for a notice of default and intent
43to sell; providing requirements for a notice of sale;
44providing requirements for a trustee's certificate of
45compliance; providing requirements for the sale by auction
46of foreclosed encumbered timeshare interests; providing
47for the effect of a trustee's sale; providing requirements
48for a trustee's deed; providing for the disposition of
49proceeds of the sale; providing that the nonjudicial
50foreclosure procedure does not impair or otherwise affect
51the right to bring certain actions; providing for actions
52for failure to follow the nonjudicial foreclosure
53procedure; amending s. 721.86, F.S.; providing for
54priority of application in case of conflict; providing an
55effective date.
56
57Be It Enacted by the Legislature of the State of Florida:
58
59     Section 1.  Paragraph (jj) is added to subsection (5) of
60section 721.07, Florida Statutes, to read:
61     721.07  Public offering statement.-Prior to offering any
62timeshare plan, the developer must submit a filed public
63offering statement to the division for approval as prescribed by
64s. 721.03, s. 721.55, or this section. Until the division
65approves such filing, any contract regarding the sale of that
66timeshare plan is subject to cancellation by the purchaser
67pursuant to s. 721.10.
68     (5)  Every filed public offering statement for a timeshare
69plan which is not a multisite timeshare plan shall contain the
70information required by this subsection. The division is
71authorized to provide by rule the method by which a developer
72must provide such information to the division.
73     (jj)  The following statement in conspicuous type:
74
75The managing entity has a lien against each timeshare
76interest to secure the payment of regular or special
77assessments and ad valorem taxes. Your failure to make
78any required payments may result in the judicial or
79nonjudicial foreclosure of an assessment lien and the
80loss of your timeshare interest. If the managing
81entity initiates a nonjudicial procedure, you shall
82have the option to object to the use of the
83nonjudicial foreclosure procedure and the managing
84entity may only proceed by filing a judicial
85foreclosure action.
86
87     Section 2.  Subsection (2) of section 721.16, Florida
88Statutes, is amended to read:
89     721.16  Liens for overdue assessments; liens for labor
90performed on, or materials furnished to, a timeshare unit.-
91     (2)  The managing entity may bring a judicial an action in
92its name to foreclose a lien under subsection (1) in the manner
93a mortgage of real property is foreclosed and may also bring an
94action to recover a money judgment for the unpaid assessments
95without waiving any claim of lien. As an alternative to
96initiating a judicial action, the managing entity may initiate a
97nonjudicial procedure to foreclose an assessment lien under s.
98721.855.
99     Section 3.  Part III of chapter 721, Florida Statutes,
100entitled "Foreclosure of Liens on Timeshare Estates," is renamed
101"Foreclosure of Liens on Timeshare Interests."
102     Section 4.  Section 721.81, Florida Statutes, is amended to
103read:
104     721.81  Legislative purpose.-The purposes of this part are
105to:
106     (1)  Recognize that timeshare interests estates are parcels
107of real property used for vacation experience rather than for
108homestead or investment purposes and that there are numerous
109timeshare interests estates in this the state.
110     (2)  Recognize that the economic health and efficient
111operation of the vacation ownership industry are in part
112dependent upon the availability of an efficient and economical
113process for all timeshare interest foreclosures foreclosure.
114     (3)  Recognize the need to assist both owners' associations
115and mortgagees by simplifying and expediting the process for the
116judicial and nonjudicial of foreclosure of assessment liens and
117mortgage liens against timeshare interests estates.
118     (4)  Improve judicial economy and reduce court congestion
119and the cost to taxpayers by establishing streamlined procedures
120for the judicial and nonjudicial foreclosure of assessment liens
121and mortgage liens against timeshare interests estates.
122     (5)  Recognize that nearly all timeshare interest
123foreclosures are uncontested.
124     (6)  Protect the ability of consumers who own timeshare
125interests located in this state to choose a judicial proceeding
126for the foreclosure of an assessment lien or a mortgage lien
127against their timeshare interest.
128     (7)  Recognize that the use of the nonjudicial foreclosure
129procedure established by ss. 721.855 and 721.856 shall have the
130same force and effect as the use of the judicial foreclosure
131procedure against a timeshare interest with respect to the
132provisions of this chapter or any other applicable law. However,
133obligors shall not be subject to a deficiency judgment even if
134the proceeds from the sale of the timeshare interest are
135insufficient to offset the amounts secured by the lien.
136     Section 5.  Section 721.82, Florida Statutes, is amended to
137read:
138     721.82  Definitions.-As used in this part, the term:
139     (1)  "Amounts secured by the lien" means all amounts
140secured by an assessment lien or mortgage lien, including, but
141not limited to, all past due amounts, accrued interest, late
142fees, taxes, advances for the payment of taxes, insurance and
143maintenance of the timeshare interest, and any fees or costs
144incurred by the lienholder or trustee, including any reasonable
145attorney's fees, trustee's fees, and costs incurred in
146connection with the default.
147     (2)(1)  "Assessment lien" means:
148     (a)  A lien for delinquent assessments as provided in ss.
149721.16, 718.116, and 719.108, and 721.16 as to timeshare
150condominiums; or
151     (b)  A lien for unpaid taxes and special assessments as
152provided in s. 192.037(8).
153     (3)(2)  "Junior interestholder" means any person who has a
154lien or interest of record against a timeshare interest estate
155in the county or counties in which the timeshare interest estate
156is located, which is inferior to the mortgage lien or assessment
157lien being foreclosed under this part.
158     (4)(3)  "Lienholder" means a holder of an assessment lien
159or a holder of a mortgage lien, as applicable. A receiver
160appointed under s. 721.26 is a lienholder for purposes of
161foreclosure of assessment liens under this part.
162     (5)(4)  "Mortgage" has the same meaning set forth in s.
163697.01.
164     (6)(5)  "Mortgage lien" means a security interest in a
165timeshare interest estate created by a mortgage encumbering the
166timeshare interest estate.
167     (7)(6)  "Mortgagee" means a person holding a mortgage lien.
168     (8)(7)  "Mortgagor" means a person granting a mortgage lien
169or a person who has assumed the obligation secured by a mortgage
170lien.
171     (9)(8)  "Notice address" means:
172     (a)  As to an assessment lien, the address of the current
173owner of a timeshare interest estate as reflected by the books
174and records of the timeshare plan under ss. 721.13(4) and
175721.15(7).
176     (b)  As to a mortgage lien:
177     1.  The address of the mortgagor as set forth in the
178mortgage, the promissory note or a separate document executed by
179the mortgagor at the time the mortgage lien was created, or the
180most current address of the mortgagor according to the records
181of the mortgagee; and
182     2.  If the current owner of the timeshare interest estate
183is different from the mortgagor, the address of the current
184owner of the timeshare interest estate as reflected by the books
185and records of the mortgagee.
186     (c)  As to a junior interestholder, the address as set
187forth in the recorded instrument creating the junior lien
188interest or interest lien, or in any recorded amendment
189supplement thereto changing the address, or in any written
190notification by the junior interestholder to the foreclosing
191lienholder changing the of such change in address.
192     (10)(9)  "Obligor" means the mortgagor, the person subject
193to an assessment lien, or the record owner of the timeshare
194interest estate.
195     (11)  "Permitted delivery service" means any nationally
196recognized common carrier delivery service or international
197airmail service requiring a signed return receipt.
198     (12)(10)  "Registered agent" means an agent duly appointed
199by the obligor under s. 721.84 for the purpose of accepting all
200notices and service of process under this part. A registered
201agent may be an individual resident in this state whose business
202office qualifies as a registered office, or a domestic or
203foreign corporation or a not-for-profit corporation as defined
204in chapter 617 authorized to transact business or to conduct its
205affairs in this state, whose business office qualifies as a
206registered office. A registered agent for any obligor may not be
207the lienholder or the attorney for the lienholder.
208     (13)(11)  "Registered office" means the street address of
209the business office of the registered agent appointed under s.
210721.84, located in this state.
211     (14)  "Trustee" means an attorney who is a member in good
212standing of The Florida Bar or his or her law firm, or a title
213insurer authorized to transact business in this state under s.
214624.401, appointed as trustee or as substitute trustee in
215accordance with s. 721.855 or s. 721.856. A receiver appointed
216under s. 721.26 may act as a trustee under s. 721.855. A trustee
217must be independent as required by s. 721.05(20).
218     Section 6.  Section 721.83, Florida Statutes, is amended to
219read:
220     721.83  Consolidation of judicial foreclosure actions.-
221     (1)  A complaint in a foreclosure proceeding involving
222timeshare interests estates may join in the same action multiple
223defendant obligors and junior interestholders of separate
224timeshare interests estates, provided:
225     (a)  The foreclosure proceeding involves a single timeshare
226property.
227     (b)  The foreclosure proceeding is filed by a single
228plaintiff.
229     (c)  The default and remedy provisions in the written
230instruments on which the foreclosure proceeding is based are
231substantially the same for each defendant.
232     (d)  The nature of the defaults alleged is the same for
233each defendant.
234     (e)  No more than 15 timeshare interests estates, without
235regard to the number of defendants, are joined within the same
236consolidated foreclosure action.
237     (2)  In any foreclosure proceeding involving multiple
238defendants filed under subsection (1), the court shall sever for
239separate trial any count of the complaint in which a defense or
240counterclaim is timely raised by a defendant.
241     (3)  A consolidated timeshare foreclosure action shall be
242considered a single action, suit, or proceeding for the payment
243of filing fees and service charges pursuant to general law. In
244addition to the payment of such filing fees and service charges,
245an additional filing fee of up to $10 for each timeshare
246interest estate joined in that action shall be paid to the clerk
247of court.
248     Section 7.  Section 721.85, Florida Statutes, is amended to
249read:
250     721.85  Service to notice address or on registered agent.-
251     (1)  Service of process for a foreclosure proceeding
252involving a timeshare interest estate may be made by any means
253recognized by law. In addition, substituted service on an
254obligor a party who has appointed a registered agent under s.
255721.84 may be made on such registered agent at the registered
256office. Also, when using s. 48.194 where in rem or quasi in rem
257relief only is sought, such service of process provisions are
258modified in connection with a foreclosure proceeding against a
259timeshare interest estate to provide that:
260     (a)  Such service of process may be made on any person
261whether the person is located inside or outside this state, by
262certified or registered mail, return receipt requested, or by a
263permitted delivery service, return receipt requested, addressed
264to the person to be served at the notice address, or on the
265person's party's registered agent duly appointed under s.
266721.84, at the registered office; and
267     (b)  Service shall be considered obtained upon the signing
268of the return receipt by any person at the notice address, or by
269the registered agent.
270     (2)  The current owner and the mortgagor of a timeshare
271interest estate must promptly notify the owners' association and
272the mortgagee of any change of address.
273     (3)  Substituted notice under s. 721.855 or s. 721.856 for
274any party who has appointed a registered agent under s. 721.84
275may be made on such registered agent at the registered office.
276     Section 8.  Section 721.855, Florida Statutes, is created
277to read:
278     721.855  Procedure for the nonjudicial foreclosure of
279assessment liens.-The provisions of this section establish a
280nonjudicial foreclosure procedure for assessment liens.
281     (1)  APPOINTMENT OF TRUSTEE.-
282     (a)  A trustee or a substitute trustee may be appointed by
283a lienholder at any time by recording a notice of appointment of
284trustee or notice of substitution of trustee in the public
285records of the county or counties in which the timeshare
286interest is located. A lienholder may appoint multiple trustees
287in a single appointment, and any appointed trustee may be used
288by the lienholder regarding the nonjudicial foreclosure of any
289assessment lien under any timeshare plan for which the trustee
290is appointed.
291     (b)  The recorded notice of appointment of trustee or
292notice of substitution of trustee shall contain the name and
293address of the trustee or substitute trustee, the name and
294address of the lienholder, and the name and address of the
295timeshare plan.
296     (c)  The lienholder shall maintain a list of all trustees
297and substitute trustees appointed by the lienholder and shall
298provide an obligor with verification that a particular person is
299an appointed trustee or substitute trustee within 3 business
300days following receipt of a written request for such
301verification from the obligor.
302     (2)  INITIATING THE USE OF A NONJUDICIAL FORECLOSURE
303PROCEDURE.-
304     (a)  Before initiating the nonjudicial foreclosure
305procedure against any timeshare interest in a given timeshare
306plan, the managing entity shall inform owners of timeshare
307interests in the timeshare plan in writing that the managing
308entity has the right to elect to use the nonjudicial foreclosure
309procedure with respect to foreclosure of assessment liens as
310established in this section. The managing entity shall be deemed
311to have complied with the requirements of this paragraph if the
312owners of timeshare interests in the given timeshare plan are
313informed by mail sent to each owner's notice address, in the
314notice of an annual or special meeting of the owners, by posting
315on the website of the applicable timeshare plan, or by any owner
316communication used by the managing entity.
317     (b)  Before initiating the nonjudicial foreclosure
318procedure against any timeshare interest, a claim of lien
319against the timeshare interest shall be recorded pursuant to s.
320721.16 or, if applicable, s. 718.116 or s. 719.108, and the
321notice of the intent to file a lien shall be given pursuant to
322s. 718.121 for timeshare condominiums and s. 719.108 for
323timeshare cooperatives.
324     (c)1.  In order to initiate a nonjudicial foreclosure
325procedure against a timeshare interest, the lienholder shall
326deliver an affidavit to the trustee that identifies the obligor,
327the notice address of the obligor, the timeshare interest, the
328official records book and page number where the claim of lien is
329recorded, and the name and notice address of any junior
330interestholder. The affidavit shall be accompanied by a title
331search of the timeshare interest identifying any junior
332interestholders of record, and the title search must be
333performed within 60 calendar days before the date of the
334affidavit.
335     2.  The affidavit shall also state that the obligor has
336defaulted in the obligation to make a payment under a specified
337provision of the timeshare instrument or applicable law.
338     3.  The affidavit shall also specify the amounts secured by
339the lien as of the date of the affidavit and a per diem amount
340to account for further accrual of the amounts secured by the
341lien.
342     (3)  OBLIGOR'S RIGHT TO OBJECT TO USE OF THE NONJUDICIAL
343FORECLOSURE PROCEDURE.-
344     (a)  The obligor may object to the lienholder's use of the
345nonjudicial foreclosure procedure for a specific default at any
346time before the sale of the timeshare interest under subsection
347(8) by delivering a written objection to the trustee using the
348objection form provided for in subsection (5). If the trustee
349receives the written objection from the obligor, the trustee may
350not proceed with the nonjudicial foreclosure procedure as to the
351default specified in the notice of default and intent to sell
352under subsection (5), and the lienholder may proceed thereafter
353only with a judicial foreclosure action as to that specified
354default.
355     (b)  If the obligor delivers the written objection
356authorized in paragraph (a) to the trustee more than 30 calendar
357days after the notice of default and intent to sell is deemed
358perfected under subsection (5), the lienholder is entitled to
359collect from the obligor in a judicial foreclosure procedure all
360of the costs incurred in the nonjudicial foreclosure procedure.
361     (4)  CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A
362trustee may sell an encumbered timeshare interest foreclosed
363under this section if:
364     (a)  The trustee has received the affidavit from the
365lienholder under paragraph (2)(c);
366     (b)  The trustee has not received a written objection to
367the use of the nonjudicial foreclosure procedure under
368subsection (3);
369     (c)  There is no lis pendens recorded and pending against
370the same timeshare interest and the trustee has not been served
371notice of the filing of any action to enjoin the nonjudicial
372foreclosure sale;
373     (d)  The trustee has provided written notice of default and
374intent to sell as required by subsection (5) and a period of at
375least 30 calendar days has elapsed after such notice is deemed
376perfected under subsection (5); and
377     (e)  The notice of sale required by subsection (6) has been
378recorded in the public records of the county or counties in
379which the timeshare interest is located.
380     (5)  NOTICE OF DEFAULT AND INTENT TO SELL.-
381     (a)  In any foreclosure proceeding under this section, the
382trustee is required to notify the obligor of the proceeding by
383sending the obligor a written notice of default and intent to
384sell to the notice address of the obligor by certified or
385registered mail, return receipt requested, or by a permitted
386delivery service, return receipt requested, as follows:
387     1.  The notice of default and intent to sell shall identify
388the obligor, the notice address of the obligor, the legal
389description of the timeshare interest, the nature of the
390default, the amounts secured by the lien, and a per diem amount
391to account for further accrual of the amounts secured by the
392lien and shall state the method by which the obligor may cure
393the default.
394     2.  The notice of default and intent to sell shall include
395an objection form with which the obligor can object to the use
396of the nonjudicial procedure by signing and returning the
397objection form to the trustee. The objection form shall identify
398the obligor, the notice address of the obligor, the timeshare
399interest, and the return address of the trustee and shall state:
400"The undersigned obligor exercises the obligor's right to object
401to the use of the nonjudicial foreclosure procedure contained in
402section 721.855, Florida Statutes."
403     3.  The notice of default and intent to sell shall also
404contain a statement in substantially the following form:
405
406If you fail to cure the default as set forth in this
407notice or take other appropriate action with regard to
408this foreclosure matter, you risk losing ownership of
409your timeshare interest through the nonjudicial
410foreclosure procedure established in section 721.855,
411Florida Statutes. You may choose to sign and send to
412the trustee the enclosed objection form, exercising
413your right to object to the use of the nonjudicial
414procedure. If you do not object to the use of the
415nonjudicial foreclosure procedure, you shall not be
416subject to a deficiency judgment even if the proceeds
417from the sale of your timeshare interest are
418insufficient to offset the amounts secured by the
419lien, which may include all past due amounts, accrued
420interest, late fees, taxes, advances for the payment
421of taxes, insurance and maintenance of the timeshare
422interest, and any fees or costs incurred by the
423lienholder or trustee, including any reasonable
424attorney's fees, trustee's fees, and costs incurred in
425connection with the default. Upon the trustee's
426receipt of your signed objection form, the foreclosure
427of the lien with respect to the default specified in
428this notice shall be subject to the judicial
429foreclosure procedure only. You have the right to cure
430your default in the manner set forth in this notice at
431any time before the trustee's sale of your timeshare
432interest. If you object to the use of the nonjudicial
433foreclosure procedure, you may be subject to a
434deficiency judgment under any subsequent judicial
435foreclosure action. In addition, if you deliver your
436written objection to the trustee more than 30 calendar
437days after the notice of default and intent to sell
438has been delivered, the lienholder is entitled to
439collect from you in a judicial foreclosure procedure
440all of the costs incurred in the nonjudicial
441foreclosure procedure.
442
443     4.  The trustee shall also mail a copy of the notice of
444default and intent to sell, without the objection form, to the
445notice address of any junior interestholder by certified or
446registered mail, return receipt requested, or by a permitted
447delivery service, return receipt requested.
448     5.  Notice under this paragraph is considered perfected
449upon the trustee receiving the return receipt bearing the
450signature of the obligor.
451     (b)  If a signed return receipt from the certified or
452registered mail or the permitted delivery service is received by
453the trustee within 30 calendar days after the trustee sent the
454notice under paragraph (a), but the trustee cannot ascertain
455from the receipt that the obligor is the person who signed the
456receipt, the trustee shall send a second notice in the form
457required under paragraph (a) to the notice address of the
458obligor by certified or registered mail, return receipt
459requested, or by a permitted delivery service, return receipt
460requested. Notice under this paragraph is considered perfected
461upon the trustee receiving the return receipt for the second
462notice bearing the signature of the obligor. Unless the trustee
463receives a signed return receipt from the certified or
464registered mail or the permitted delivery service for the second
465notice within 30 calendar days after the trustee sent the notice
466under this paragraph and the trustee can ascertain from the
467receipt that the obligor is the person who signed the receipt,
468the trustee shall perfect service in the manner set forth in
469either paragraph (c) or paragraph (d).
470     (c)  If a signed return receipt from the certified or
471registered mail or the permitted delivery service is not
472received by the trustee within 30 calendar days after the
473trustee sent the notice under paragraph (a) or the second notice
474under paragraph (b), if applicable, the trustee shall mail a
475copy of the notice required by paragraph (a) by first class
476mail, postage prepaid, to the notice address of the person with
477the return address of the trustee on the envelope. Notice under
478this paragraph is considered perfected upon the mailing of the
479copy of the notice to the person.
480     (d)1.  If the notice required by paragraph (a) or the
481second notice required by paragraph (b), if applicable, is
482returned as undeliverable within 30 calendar days after the
483trustee sent the notice and if by a diligent search and inquiry
484the trustee cannot obtain a different address for the obligor or
485junior interestholder, the trustee may perfect notice against
486that person by publication in a newspaper of general circulation
487in the county or counties in which the timeshare interest is
488located. The notice shall appear at least once a week for 2
489consecutive weeks. The trustee may group an unlimited number of
490notices in the same publication, provided that all of the
491notices pertain to the same timeshare plan. Notice under this
492subparagraph is considered perfected upon publication as
493required in this subparagraph.
494     2.  If the trustee's diligent search and inquiry produces
495an address different from the notice address, the trustee shall
496mail a copy of the notice by first class mail, postage prepaid,
497to the new address with the return address of the trustee on the
498envelope. Notice under this subparagraph is considered perfected
499upon the mailing of the copy of the notice to the new address.
500     (e)  If notice is perfected under paragraph (a) or
501paragraph (b), the trustee shall execute an affidavit in
502recordable form setting forth the manner in which notice was
503perfected and attach the affidavit to the certificate of
504compliance set forth in subsection (7). The affidavit shall
505state the nature of the notice, the date on which the notice was
506mailed, the name and address on the envelope containing the
507notice, the manner in which the notice was mailed, and the basis
508for that knowledge. The signed return receipt from the certified
509or registered mail or the permitted delivery service shall be
510attached to the affidavit.
511     (f)  If notice is perfected under paragraph (c), the
512trustee shall execute an affidavit in recordable form setting
513forth the manner in which notice was perfected and attach the
514affidavit to the certificate of compliance set forth in
515subsection (7). The affidavit shall state the nature of the
516notice, the date on which the notice was mailed, the name and
517address on the envelope containing the notice, the manner in
518which the notice was mailed, the fact that a signed receipt from
519the certified or registered mail or the permitted delivery
520service was not timely received, the date on which a copy of the
521notice was mailed again by first class mail with the return
522address of the trustee on the envelope, and the name and address
523on the envelope containing the notice. The envelopes from the
524attempts to mail notice, if available, shall also be attached to
525the affidavit.
526     (g)  If notice is perfected by publication under paragraph
527(d), the trustee shall execute an affidavit in recordable form
528setting forth the manner in which notice was perfected and
529attach the affidavit to the certificate of compliance set forth
530in subsection (7). The affidavit shall include all the
531information contained in paragraph (f) and shall also state that
532the notice was perfected by publication after diligent search
533and inquiry was made for the current address for the obligor.
534The returned envelope from the attempt to mail notice of the
535publication, if available, shall be attached to the affidavit.
536No other action of the trustee is necessary to perfect notice.
537     (6)  NOTICE OF SALE.-
538     (a)  The notice of sale shall set forth:
539     1.  The name and notice addresses of the obligor and any
540junior interestholder.
541     2.  The legal description of the timeshare interest.
542     3.  The name and address of the trustee.
543     4.  A description of the default that is the basis for the
544foreclosure.
545     5.  The official records book and page numbers where the
546claim of lien is recorded.
547     6.  The amounts secured by the lien and a per diem amount
548to account for further accrual of the amounts secured by the
549lien.
550     7.  The date, location, and starting time of the trustee's
551sale.
552     8.  The right of and the method by which the obligor may
553cure the default or the right of any junior interestholder to
554redeem its interest up to the date the trustee issues the
555certificate of sale in accordance with paragraph (8)(f).
556     (b)  The trustee shall send a copy of the notice of sale on
557the date it is submitted for recording, by first class mail,
558postage prepaid, to the notice addresses of the obligor and any
559junior interestholder.
560     (c)  Subsequent to the date of recording of the notice of
561sale, no notice is required to be given to any person claiming
562an interest in the timeshare interest except as provided in this
563section. The recording of the notice of sale has the same force
564and effect as the filing of a lis pendens in a judicial
565proceeding under s. 48.23.
566     (d)1.  The trustee shall publish the notice of sale in a
567newspaper of general circulation in the county or counties in
568which the timeshare interest is located at least once a week for
5692 consecutive weeks before the date of the sale. The last
570publication shall occur at least 5 calendar days before the
571sale.
572     2.  The trustee may group an unlimited number of notices of
573sale in the same publication, provided that all of the notices
574of sale pertain to the same timeshare plan.
575     (7)  TRUSTEE'S CERTIFICATE OF COMPLIANCE.-
576     (a)  Within 3 business days after the trustee conducts a
577sale, the trustee shall execute and acknowledge a certificate of
578compliance and record it in the public records of the county or
579counties in which the timeshare interest is located.
580     (b)  In the certificate of compliance, the trustee shall:
581     1.  Confirm delivery of the notice of default and intent to
582sell and attach the affidavit required by subsection (5).
583     2.  State that the default was not cured and the timeshare
584interest was not redeemed, and state that the trustee did not
585receive any written objection pursuant subsection (3).
586     3.  Confirm that the notice of sale was published as
587required under paragraph (6)(d) and attach an affidavit of
588publication for the notice of sale.
589     4.  Confirm that the notice of sale was mailed pursuant to
590paragraph (6)(b) together with a list of the parties to whom the
591notice of sale was mailed.
592     (c)  In furtherance of the execution and recording of the
593certificate of compliance required under this subsection, the
594trustee is entitled to rely upon an affidavit or certification
595from the lienholder as to the facts and circumstances of default
596and failure to cure the default.
597     (8)  MANNER OF SALE.-
598     (a)  The sale of a timeshare interest by the trustee in a
599public auction shall be held in the county in which the
600timeshare interest is located, on the date, location, and
601starting time designated in the notice of sale, which shall be
602after 9:00 a.m. but before 4:00 p.m. on a business day not less
603than 30 calendar days after the recording of the notice of sale.
604The trustee's sale may occur online at a specific website on the
605Internet or in any other manner used by the clerk of the court
606for a judicial foreclosure sales procedure in the county or
607counties in which the timeshare interest is located.
608     (b)  The trustee shall conduct the sale and act as the
609auctioneer.
610     (c)  The lienholder and any person other than the trustee
611may bid at the sale. In lieu of participating in the sale, the
612lienholder may send the trustee written bidding instructions
613that the trustee shall announce as appropriate during the sale.
614     (d)  The trustee may postpone the sale from time to time.
615In such case, notice of postponement must be given by the
616trustee at the date, time, and location contained in the notice
617of sale. The notice of sale for the postponed sale shall be
618mailed pursuant to paragraph (6)(b), recorded pursuant to
619paragraph (4)(e), and published pursuant to paragraph (6)(d).
620The effective date of the initial notice of sale for purposes of
621paragraph (4)(b) is not affected by a postponed sale.
622     (e)  The highest bidder of the timeshare interest shall pay
623the price bid to the trustee in cash or certified funds on the
624day of the sale. If the lienholder is the highest bidder, the
625lienholder shall receive a credit up to the amount set forth in
626the notice of sale as required by subparagraph (6)(a)6.
627     (f)  On the date of the sale and upon receipt of the cash
628or certified funds due from the highest bidder, the trustee
629shall issue to the highest bidder a certificate of sale stating
630that a foreclosure conforming to the requirements of this
631section has occurred, including the time, location, and date of
632the sale, that the timeshare interest was sold, the amounts
633secured by the lien, and the amount of the highest bid. A copy
634of the certificate of sale shall be mailed by certified or
635registered mail, return receipt requested, or by a permitted
636delivery service, return receipt requested, to all persons
637entitled to receive a notice of sale under subsection (6).
638     (9)  EFFECT OF TRUSTEE'S SALE.-
639     (a)  A sale conducted under subsection (8) forecloses and
640terminates all interests of any person to whom notice is given
641under paragraph (4)(d) and paragraph (6)(b), and of any other
642person claiming by, through, or under any such person, in the
643affected timeshare interest. The assessment lien does not merge
644into the trustee's deed to any extent that a subsequent judicial
645foreclosure or reforeclosure of the assessment lien becomes
646necessary or required. A failure to give notice to any person
647entitled to notice does not affect the validity of the sale as
648to the interests of any person properly notified. A person
649entitled to notice but not given notice has the rights of a
650person not made a defendant in a judicial foreclosure.
651     (b)  A lienholder may conduct a subsequent foreclosure of a
652timeshare interest to correct any failure to meet the
653requirements of this section before the issuance of a
654certificate of sale under paragraph (8)(f).
655     (c)  On the issuance of a certificate of sale under
656paragraph (8)(f), all rights of redemption that have been
657foreclosed under this section shall terminate.
658     (d)  A sale conducted under subsection (8) extinguishes the
659assessment lien and the obligor's liability for all amounts
660secured by the lien. The lienholder has no right to any
661deficiency judgment against the obligor after a sale of the
662obligor's timeshare interest under this section.
663     (e)  The issuance and recording of the trustee's deed is
664presumed valid and may be relied upon by third parties without
665actual knowledge of irregularities in the sale.
666     (10)  TRUSTEE'S DEED.-
667     (a)  The trustee's deed shall include the name and address
668of the trustee, the name and address of the highest bidder, the
669name of the former owner, a legal description of the timeshare
670interest, and the name and address of the preparer of the
671trustee's deed. The trustee's deed shall recite that the
672certificate of compliance was recorded, and shall contain no
673warranties of title from the trustee.
674     (b)  Ten calendar days after a sale, absent the prior
675filing and service on the trustee of a judicial action to enjoin
676issuance of the trustee's deed to the timeshare interest, the
677trustee shall:
678     1.  Issue a trustee's deed to the highest bidder.
679     2.  Record the trustee's deed in the public records of the
680county or counties in which the timeshare interest is located.
681     (c)1.  The certificate of compliance and trustee's deed
682together are presumptive evidence of the truth of the matters
683set forth in them, and no action to set aside the sale and void
684the trustee's deed may be filed or otherwise pursued against any
685person acquiring the timeshare interest for value, including any
686subsequent mortgagee or buyer.
687     2.  The trustee's deed conveys to the highest bidder all
688rights, title, and interest in the timeshare interest that the
689former owner had, or had the power to convey, at the time of the
690recording of the claim of lien, together with all rights, title,
691and interest that the former owner or his or her successors in
692interest acquired after the recording of the claim of lien.
693     3.  The issuance and recording of a trustee's deed shall
694have the same force and effect as the issuance and recording of
695a certificate of title by the clerk of the court in a judicial
696foreclosure action.
697     (11)  DISPOSITION OF PROCEEDS OF SALE.-
698     (a)  The trustee shall apply the proceeds of the sale as
699follows:
700     1.  To the expenses of the sale, including compensation of
701the trustee.
702     2.  To the amount owed and set forth in the notice as
703required in subparagraph (6)(a)6.
704     3.  If there are junior interestholders, the trustee may
705file an action in interpleader, pay the surplus to a court of
706competent jurisdiction, name the competing junior
707interestholders, and ask the court to determine the proper
708distribution of the surplus. In any interpleader action, the
709trustee shall recover reasonable attorney's fees and costs.
710     4.  If there are no junior interestholders, or if all
711junior interestholders have been paid, any surplus shall be paid
712to the former owner. If the trustee is unable to locate the
713former owner 1 year after the sale, the surplus, if any, shall
714be deposited with the Chief Financial Officer pursuant to
715chapter 717.
716     (b)  In disposing of the proceeds of the sale, the trustee
717may rely on the information provided in the affidavit of the
718lienholder under paragraph (2)(c) and, in the event of a dispute
719or uncertainty over such claims, the trustee has the discretion
720to submit the matter to adjudication by court, by interpleader,
721or otherwise and shall recover reasonable attorney's fees and
722costs.
723     (12)  JUDICIAL FORECLOSURE ACTIONS.-The nonjudicial
724foreclosure procedure established in this section does not
725impair or otherwise affect the lienholder's continuing right to
726bring a judicial foreclosure action, in lieu of using the
727nonjudicial foreclosure procedure, with respect to any
728assessment lien.
729     (13)  APPLICATION.-This section applies to any default
730giving rise to the imposition of an assessment lien which occurs
731after the effective date of this section. An amendment to a
732timeshare instrument is not required to permit a managing entity
733lienholder to use the nonjudicial foreclosure procedures of this
734section. If a timeshare instrument contains any provision that
735prevents the use of nonjudicial foreclosure procedures, an
736amendment to the timeshare instrument permitting the use of the
737nonjudicial foreclosure procedure set forth in this section may
738be adopted by a majority of those present and voting at a duly
739called meeting of the owners' association at which at least 15
740percent of the voting interests are present in person or by
741proxy.
742     (14)  ACTIONS FOR FAILURE TO FOLLOW THE NONJUDICIAL
743FORECLOSURE PROCEDURE.-An action for actual damages for a
744material violation of this section may be brought by an obligor
745against the lienholder for the failure to follow the nonjudicial
746foreclosure procedure contained in this section.
747     Section 9.  Section 721.856, Florida Statutes, is created
748to read:
749     721.856  Procedure for the nonjudicial foreclosure of
750mortgage liens.-The provisions of this section establish a
751nonjudicial foreclosure procedure for mortgage liens.
752     (1)  APPOINTMENT OF TRUSTEE.-
753     (a)  A trustee or a substitute trustee may be appointed by
754a lienholder at any time by recording a notice of appointment of
755trustee or notice of substitution of trustee in the public
756records of the county or counties in which the timeshare
757interest is located. A lienholder may appoint multiple trustees
758in a single appointment, and any appointed trustee may be used
759by the lienholder regarding the nonjudicial foreclosure of any
760mortgage lien.
761     (b)  The recorded notice of appointment of trustee or
762notice of substitution of trustee shall contain the name and
763address of the trustee or substitute trustee, the name and
764address of the lienholder, and the name and address of the
765timeshare plan.
766     (c)  The lienholder shall maintain a list of all trustees
767and substitute trustees appointed by the lienholder and shall
768provide an obligor with verification that a particular person is
769an appointed trustee or substitute trustee within 3 business
770days after receipt of a written request for such verification
771from the obligor.
772     (2)  INITIATING THE NONJUDICIAL FORECLOSURE OF MORTGAGE
773LIENS.-
774     (a)  Before initiating the nonjudicial foreclosure against
775a timeshare interest, the mortgage, or an amendment to a
776mortgage executed by the obligor before the effective date of
777this section, must contain a statement in substantially the
778following form:
779
780If the mortgagor fails to make timely payments under
781the obligation secured by this mortgage, or is
782otherwise deemed in uncured default of this mortgage,
783the lien against the mortgagor's timeshare interest
784created by this mortgage may be foreclosed in
785accordance with either a judicial foreclosure
786procedure or a nonjudicial procedure and may result in
787the loss of your timeshare interest. If the mortgagee
788initiates a nonjudicial foreclosure procedure, the
789mortgagor shall have the option to object and the
790mortgagee may proceed only by filing a judicial
791foreclosure action.
792
793     (b)1.  In order to initiate a nonjudicial foreclosure
794procedure against a timeshare interest, the lienholder shall
795deliver an affidavit to the trustee that identifies the obligor,
796the notice address of the obligor, the timeshare interest, the
797official records book and page number where the mortgage is
798recorded, and the name and notice address of any junior
799interestholder. The affidavit shall be accompanied by a title
800search of the timeshare interest identifying any junior
801interestholders of record, and the title search must be
802performed within 60 calendar days before the date of the
803affidavit.
804     2.  The affidavit shall also state that the obligor has
805defaulted in the obligation to make a payment under a specified
806provision of the mortgage or is otherwise deemed in uncured
807default under a specified provision of the mortgage.
808     3.  The affidavit shall also specify the amounts secured by
809the lien as of the date of the affidavit and a per diem amount
810to account for further accrual of the amounts secured by the
811lien.
812     (3)  OBLIGOR'S RIGHT TO OBJECT TO USE OF THE NONJUDICIAL
813FORECLOSURE PROCEDURE.-
814     (a)  The obligor may object to the lienholder's use of the
815nonjudicial foreclosure procedure for a specific default at any
816time before the sale of the timeshare interest under subsection
817(8) by delivering a written objection to the trustee using the
818objection form provided for in subsection (5). If the trustee
819receives the written objection from the obligor, the trustee may
820not proceed with the nonjudicial foreclosure procedure as to the
821default specified in the notice of default and intent to sell
822under subsection (5), and the lienholder may proceed thereafter
823only with a judicial foreclosure action as to that specified
824default.
825     (b)  If the obligor delivers the written objection
826authorized in paragraph (a) to the trustee more than 30 calendar
827days after the notice of default and intent to sell is deemed
828perfected under subsection (5), the lienholder is entitled to
829collect from the obligor in a judicial foreclosure procedure all
830of the costs incurred in the nonjudicial foreclosure procedure.
831     (4)  CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A
832trustee may sell an encumbered timeshare interest foreclosed
833under this section if:
834     (a)  The trustee has received the affidavit from the
835lienholder under paragraph (2)(c);
836     (b)  The trustee has not received a written objection to
837the use of the nonjudicial foreclosure procedure under
838subsection (3);
839     (c)  There is no lis pendens recorded and pending against
840the same timeshare interest, and the trustee has not been served
841notice of the filing of any action to enjoin the nonjudicial
842foreclosure sale;
843     (d)  The trustee is in possession of the original
844promissory note executed by the mortgagor and secured by the
845mortgage lien;
846     (e)  The trustee has provided written notice of default and
847intent to sell as required by subsection (5) and a period of at
848least 30 calendar days has elapsed after such notice is deemed
849perfected under subsection (5); and
850     (f)  The notice of sale required by subsection (6) has been
851recorded in the public records of the county in which the
852mortgage was recorded.
853     (5)  NOTICE OF DEFAULT AND INTENT TO SELL.-
854     (a)  In any foreclosure proceeding under this section, the
855trustee is required to notify the obligor of the proceeding by
856sending the obligor a written notice of default and intent to
857sell to the notice address of the obligor by certified or
858registered mail, return receipt requested, or by a permitted
859delivery service, return receipt requested, as follows:
860     1.  The notice of default and intent to sell shall identify
861the obligor, the notice address of the obligor, the legal
862description of the timeshare interest, the nature of the
863default, the amounts secured by the lien, and a per diem amount
864to account for further accrual of the amounts secured by the
865lien and shall state the method by which the obligor may cure
866the default.
867     2.  The notice of default and intent to sell shall include
868an objection form with which the obligor can object to the use
869of the nonjudicial procedure by signing and returning the
870objection form to the trustee. The objection form shall identify
871the obligor, the notice address of the obligor, the timeshare
872interest, and the return address of the trustee and shall state:
873"The undersigned obligor exercises the obligor's right to object
874to the use of the nonjudicial foreclosure procedure contained in
875section 721.856, Florida Statutes."
876     3.  The notice of default and intent to sell shall also
877contain a statement in substantially the following form:
878
879If you fail to cure the default as set forth in this
880notice or take other appropriate action with regard to
881this foreclosure matter, you risk losing ownership of
882your timeshare interest through the nonjudicial
883foreclosure procedure established in section 721.856,
884Florida Statutes. You may choose to sign and send to
885the trustee the enclosed objection form, exercising
886your right to object to the use of the nonjudicial
887procedure. If you do not object to the use of the
888nonjudicial foreclosure procedure, you shall not be
889subject to a deficiency judgment even if the proceeds
890from the sale of your timeshare interest are
891insufficient to offset the amounts secured by the
892lien, which may include all past due amounts, accrued
893interest, late fees, taxes, advances for the payment
894of taxes, insurance, and maintenance of the timeshare
895interest, and any fees or costs incurred by the
896lienholder or trustee, including any reasonable
897attorney's fees, trustee's fees and costs incurred in
898connection with the default. Upon the trustee's
899receipt of your signed objection form, the foreclosure
900of the lien with respect to the default specified in
901this notice shall be subject to the judicial
902foreclosure procedure only. You have the right to cure
903your default in the manner set forth in this notice at
904any time before the trustee's sale of your timeshare
905interest. If you object to the use of the nonjudicial
906foreclosure procedure, you may be subject to a
907deficiency judgment under any subsequent judicial
908foreclosure action. In addition, if you deliver your
909written objection to the trustee more than 30 calendar
910days after the notice of default and intent to sell
911has been delivered, the lienholder is entitled to
912collect from you in a judicial foreclosure procedure
913all of the costs incurred in the nonjudicial
914foreclosure procedure.
915
916     4.  The trustee shall also mail a copy of the notice of
917default and intent to sell, without the objection form, to the
918notice address of any junior interestholder by certified or
919registered mail, return receipt requested, or by a permitted
920delivery service, return receipt requested.
921     5.  Notice under this paragraph is considered perfected
922upon the trustee receiving the return receipt bearing the
923signature of the obligor.
924     (b)  If a signed return receipt from the certified or
925registered mail or the permitted delivery service is received by
926the trustee within 30 calendar days after the trustee sent the
927notice under paragraph (a), but the trustee cannot ascertain
928from the receipt that the obligor is the person who signed the
929receipt, the trustee shall send a second notice in the form
930required under paragraph (a) to the notice address of the
931obligor by certified or registered mail, return receipt
932requested, or by a permitted delivery service, return receipt
933requested. Notice under this paragraph is considered perfected
934upon the trustee receiving the return receipt for the second
935notice bearing the signature of the obligor. Unless the trustee
936receives a signed return receipt from the certified or
937registered mail or the permitted delivery service for the second
938notice within 30 calendar days after the trustee sent the notice
939under this paragraph and the trustee can ascertain from the
940receipt that the obligor is the person who signed the receipt,
941the trustee shall perfect service in the manner set forth in
942either paragraph (c) or paragraph (d).
943     (c)  If a signed return receipt from the certified or
944registered mail or the permitted delivery service is not
945received by the trustee within 30 calendar days after the
946trustee sent the notice under paragraph (a) or the second notice
947under paragraph (b), if applicable, the trustee shall mail a
948copy of the notice required by paragraph (a) by first class
949mail, postage prepaid, to the notice address of the person with
950the return address of the trustee on the envelope. Notice under
951this paragraph is considered perfected upon the mailing of the
952copy of the notice to the person.
953     (d)1.  If the notice required by paragraph (a) or the
954second notice required by paragraph (b), if applicable, is
955returned as undeliverable within 30 calendar days after the
956trustee sent the notice and if by a diligent search and inquiry
957the trustee cannot obtain a different address for the obligor or
958junior interestholder, the trustee may perfect notice against
959that person by publication in a newspaper of general circulation
960in the county or counties in which the timeshare interest is
961located. The notice shall appear at least once a week for 2
962consecutive weeks. The trustee may group an unlimited number of
963notices in the same publication, provided that all of the
964notices pertain to the same timeshare plan. Notice under this
965subparagraph is considered perfected upon publication as
966required in this subparagraph.
967     2.  If the trustee's diligent search and inquiry produces
968an address different from the notice address, the trustee shall
969mail a copy of the notice by first class mail, postage prepaid,
970to the new address with the return address of the trustee on the
971envelope. Notice under this subparagraph is considered perfected
972upon the mailing of the copy of the notice to the new address.
973     (e)  If notice is perfected under paragraph (a) or
974paragraph (b), the trustee shall execute an affidavit in
975recordable form setting forth the manner in which notice was
976perfected and attach the affidavit to the certificate of
977compliance set forth in subsection (7). The affidavit shall
978state the nature of the notice, the date on which the notice was
979mailed, the name and address on the envelope containing the
980notice, the manner in which the notice was mailed, and the basis
981for that knowledge. The signed return receipt from the certified
982or registered mail or the permitted delivery service shall be
983attached to the affidavit.
984     (f)  If notice is perfected under paragraph (c), the
985trustee shall execute an affidavit in recordable form setting
986forth the manner in which notice was perfected and attach the
987affidavit to the certificate of compliance set forth in
988subsection (7). The affidavit shall state the nature of the
989notice, the date on which the notice was mailed, the name and
990address on the envelope containing the notice, the manner in
991which the notice was mailed, the fact that a signed receipt from
992the certified or registered mail or the permitted delivery
993service was not timely received, the date on which a copy of the
994notice was mailed again by first class mail with the return
995address of the trustee on the envelope, and the name and address
996on the envelope containing the notice. The envelopes from the
997attempts to mail notice, if available, shall also be attached to
998the affidavit.
999     (g)  If notice is perfected by publication under paragraph
1000(d), the trustee shall execute an affidavit in recordable form
1001setting forth the manner in which notice was perfected and
1002attach the affidavit to the certificate of compliance set forth
1003in subsection (7). The affidavit shall include all the
1004information contained in paragraph (f) and shall also state that
1005the notice was perfected by publication after diligent search
1006and inquiry was made for the current address for the obligor.
1007The returned envelope from the attempt to mail notice of the
1008publication, if available, shall be attached to the affidavit.
1009No other action of the trustee is necessary to perfect notice.
1010     (6)  NOTICE OF SALE.-
1011     (a)  The notice of sale shall set forth:
1012     1.  The name and notice addresses of the obligor and any
1013junior interestholder.
1014     2.  The legal description of the timeshare interest.
1015     3.  The name and address of the trustee.
1016     4.  A description of the default that is the basis for the
1017foreclosure.
1018     5.  The official records book and page numbers where the
1019mortgage is recorded.
1020     6.  The amounts secured by the lien and a per diem amount
1021to account for further accrual of the amounts secured by the
1022lien.
1023     7.  The date, location, and starting time of the trustee's
1024sale.
1025     8.  The right of and the method by which the obligor may
1026cure the default or the right of any junior interestholder to
1027redeem its interest up to the date the trustee issues the
1028certificate of sale in accordance with paragraph (8)(f).
1029     (b)  The trustee shall send a copy of the notice of sale on
1030the date it is submitted for recording, by first class mail,
1031postage prepaid, to the notice addresses of the obligor and any
1032junior interestholder.
1033     (c)  Subsequent to the date of recording of the notice of
1034sale, no notice is required to be given to any person claiming
1035an interest in the timeshare interest except as provided in this
1036section. The recording of the notice of sale has the same force
1037and effect as the filing of a lis pendens in a judicial
1038proceeding under s. 48.23.
1039     (d)1.  The trustee shall publish the notice of sale in a
1040newspaper of general circulation in the county or counties in
1041which the timeshare interest is located at least once a week for
1042two consecutive weeks before the date of the sale. The last
1043publication shall occur at least 5 calendar days before the
1044sale.
1045     2.  The trustee may group an unlimited number of notices of
1046sale in the same publication, provided that all of the notices
1047of sale pertain to the same timeshare plan.
1048     (7)  TRUSTEE'S CERTIFICATE OF COMPLIANCE.-
1049     (a)  Within 3 business days after the trustee conducts a
1050sale, the trustee shall execute and acknowledge a certificate of
1051compliance and record it in the public records of the county or
1052counties in which the timeshare interest is located.
1053     (b)  In the certificate of compliance, the trustee shall:
1054     1.  Confirm delivery of the notice of default and intent to
1055sell and attach the affidavit required by subsection (5).
1056     2.  State that the default was not cured and the timeshare
1057interest was not redeemed, and state that the trustee did not
1058receive any written objection pursuant subsection (3).
1059     3.  State that the trustee is in possession of the original
1060promissory note executed by the mortgagor and secured by the
1061mortgage lien.
1062     4.  Confirm that the notice of sale was published as
1063required under (6)(d) and attach an affidavit of publication for
1064the notice of sale.
1065     5.  Confirm that the notice of sale was mailed pursuant to
1066paragraph (6)(b) together with a list of the parties to whom the
1067notice of sale was mailed.
1068     (c)  In furtherance of the execution and recording of the
1069certificate of compliance required under this subsection, the
1070trustee is entitled to rely upon an affidavit or certification
1071from the lienholder as to the facts and circumstances of default
1072and failure to cure the default.
1073     (8)  MANNER OF SALE.-
1074     (a)  The sale of a timeshare interest by the trustee in a
1075public auction shall be held in the county in which the
1076timeshare interest is located, on the date, location, and
1077starting time designated in the notice of sale, which shall be
1078after 9:00 a.m. but before 4:00 p.m. on a business day not less
1079than 30 calendar days after the recording of the notice of sale.
1080The trustee's sale may occur online at a specific website on the
1081Internet or in any other manner used by the clerk of the court
1082for a judicial foreclosure sales procedure in the county or
1083counties in which the timeshare interest is located.
1084     (b)  The trustee shall conduct the sale and act as the
1085auctioneer.
1086     (c)  The lienholder and any person other than the trustee
1087may bid at the sale. In lieu of participating in the sale, the
1088lienholder may send the trustee written bidding instructions
1089that the trustee shall announce as appropriate during the sale.
1090     (d)  The trustee may postpone the sale from time to time.
1091In such case, notice of postponement must be given by the
1092trustee at the date, time, and location contained in the notice
1093of sale. The notice of sale for the postponed sale shall be
1094mailed pursuant to paragraph (6)(b), recorded pursuant to
1095paragraph (4)(f), and published pursuant to paragraph (6)(d).
1096The effective date of the initial notice of sale for purposes of
1097paragraph (4)(b) is not affected by a postponed sale.
1098     (e)  The highest bidder of the timeshare interest shall pay
1099the price bid to the trustee in cash or certified funds on the
1100day of the sale. If the lienholder is the highest bidder, the
1101lienholder shall receive a credit up to the amount set forth in
1102the notice of sale as required by subparagraph (6)(a)6.
1103     (f)  On the date of the sale and upon receipt of the cash
1104or certified funds due from the highest bidder, the trustee
1105shall issue to the highest bidder a certificate of sale stating
1106that a foreclosure conforming to the requirements of this
1107section has occurred, including the time, location, and date of
1108the sale, that the timeshare interest was sold, the amounts
1109secured by the lien, and the amount of the highest bid. A copy
1110of the certificate of sale shall be mailed by certified or
1111registered mail, return receipt requested, or by a permitted
1112delivery service, return receipt requested, to all persons
1113entitled to receive a notice of sale under subsection (6).
1114     (9)  EFFECT OF TRUSTEE'S SALE.-
1115     (a)  A sale conducted under subsection (8) forecloses and
1116terminates all interests of any person to whom notice is given
1117under paragraph (4)(e) and paragraph (6)(b), and of any other
1118person claiming by, through, or under any such person, in the
1119affected timeshare interest. The mortgage lien does not merge
1120into the trustee's deed to any extent that a subsequent judicial
1121foreclosure or reforeclosure of the mortgage lien becomes
1122necessary or required. A failure to give notice to any person
1123entitled to notice does not affect the validity of the sale as
1124to the interests of any person properly notified. A person
1125entitled to notice but not given notice has the rights of a
1126person not made a defendant in a judicial foreclosure. Any
1127subsequent foreclosure required by failure to notify a party
1128under paragraph (6)(b) may be conducted under this section.
1129     (b)  A lienholder may conduct a subsequent foreclosure of a
1130timeshare interest to correct any failure to meet the
1131requirements of this section before the issuance of a
1132certificate of sale under paragraph (8)(f).
1133     (c)  On the issuance of a certificate of sale under
1134paragraph (8)(f), all rights of redemption that have been
1135foreclosed under this section shall terminate.
1136     (d)  A sale conducted under subsection (8) extinguishes the
1137lien and the obligor's liability for all amounts secured by the
1138lien. The lienholder has no right to any deficiency judgment
1139against the obligor after a sale of the obligor's timeshare
1140interest under this section.
1141     (e)  The issuance and recording of the trustee's deed is
1142presumed valid and may be relied upon by third parties without
1143actual knowledge of irregularities in the sale.
1144     (10)  TRUSTEE'S DEED.-
1145     (a)  The trustee's deed shall include the name and address
1146of the trustee, the name and address of the highest bidder, the
1147name of the former owner, a legal description of the timeshare
1148interest, and the name and address of the preparer of the
1149trustee's deed. The trustee's deed shall recite that the
1150certificate of compliance was recorded, and shall contain no
1151warranties of title from the trustee.
1152     (b)  Ten calendar days after a sale, absent the prior
1153filing and service on the trustee of a judicial action to enjoin
1154issuance of the trustee's deed to the timeshare interest, the
1155trustee shall:
1156     1.  Cancel the original promissory note executed by the
1157mortgagor and secured by the mortgage lien.
1158     2.  Issue a trustee's deed to the highest bidder.
1159     3.  Record the trustee's deed in the public records of the
1160county or counties in which the timeshare interest is located.
1161     (c)1.  The certificate of compliance and trustee's deed
1162together are presumptive evidence of the truth of the matters
1163set forth in them, and no action to set aside the sale and void
1164the trustee's deed may be filed or otherwise pursued against any
1165person acquiring the timeshare interest for value, including any
1166subsequent mortgagee or buyer.
1167     2.  The trustee's deed conveys to the highest bidder all
1168rights, title, and interest in the timeshare interest that the
1169former owner had, or had the power to convey, at the time of the
1170execution of the mortgage, together with all rights, title, and
1171interest that the former owner or his or her successors in
1172interest acquired after the execution of the mortgage.
1173     3.  The issuance and recording of a trustee's deed shall
1174have the same force and effect as the issuance and recording of
1175a certificate of title by the clerk of the court in a judicial
1176foreclosure action.
1177     (11)  DISPOSITION OF PROCEEDS OF SALE.-
1178     (a)  The trustee shall apply the proceeds of the sale as
1179follows:
1180     1.  To the expenses of the sale, including compensation of
1181the trustee.
1182     2.  To the amount owed and set forth in the notice as
1183required in subparagraph (6)(a)6.
1184     3.  If there are junior interestholders, the trustee may
1185file an action in interpleader, pay the surplus to a court of
1186competent jurisdiction, name the competing junior
1187interestholders, and ask the court to determine the proper
1188distribution of the surplus. In any interpleader action, the
1189trustee shall recover reasonable attorney's fees and costs.
1190     4.  If there are no junior interestholders, or if all
1191junior interestholders have been paid, any surplus shall be paid
1192to the former owner. If the trustee is unable to locate the
1193former owner 1 year after the sale, the surplus, if any, shall
1194be deposited with the Chief Financial Officer pursuant to
1195chapter 717.
1196     (b)  In disposing of the proceeds of the sale, the trustee
1197may rely on the information provided in the affidavit of the
1198lienholder under paragraph (2)(c) and, in the event of a dispute
1199or uncertainty over such claims, the trustee has the discretion
1200to submit the matter to adjudication by court, by interpleader,
1201or otherwise and shall recover reasonable attorney's fees and
1202costs.
1203     (12)  JUDICIAL FORECLOSURE ACTIONS.-The nonjudicial
1204foreclosure procedure established in this section does not
1205impair or otherwise affect the lienholder's continuing right to
1206bring a judicial foreclosure action, in lieu of using the
1207nonjudicial foreclosure procedure, with respect to any mortgage
1208lien.
1209     (13)  ACTIONS FOR FAILURE TO FOLLOW THE NONJUDICIAL
1210FORECLOSURE PROCEDURE.-An action for actual damages for a
1211material violation of this section may be brought by an obligor
1212against the lienholder for the failure to follow the nonjudicial
1213foreclosure procedure contained in this section.
1214     Section 10.  Subsection (1) of section 721.86, Florida
1215Statutes, is amended to read:
1216     721.86  Miscellaneous provisions.-
1217     (1)  In the event of a conflict between the provisions of
1218this part and the other provisions of this chapter, chapter 702,
1219or other applicable law, the provisions of this part shall
1220prevail The procedures in this part must be given effect in the
1221context of any foreclosure proceedings against timeshare estates
1222governed by this chapter, chapter 702, chapter 718, or chapter
1223719.
1224     Section 11.  This act shall take effect upon becoming a
1225law.


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