1 | A bill to be entitled |
2 | An act relating to timeshares; amending s. 721.07, F.S.; |
3 | providing lien disclosure requirements for filed public |
4 | offering statements for certain timeshare plans; amending |
5 | s. 721.16, F.S.; authorizing a managing entity to bring |
6 | judicial and nonjudicial actions to foreclose certain |
7 | liens under specified conditions; renaming part III of |
8 | chapter 721, F.S.; amending s. 721.81, F.S.; revising and |
9 | providing legislative purposes of the part; amending s. |
10 | 721.82 F.S.; revising and providing definitions; amending |
11 | s. 721.83, F.S.; revising application to apply to judicial |
12 | foreclosure actions; amending s. 721.85, F.S.; conforming |
13 | provisions to changes made by this act; creating s. |
14 | 721.855, F.S.; establishing procedure for the nonjudicial |
15 | foreclosure of assessment liens; providing for the |
16 | appointment of a trustee; providing recording requirements |
17 | for such liens; providing procedures for the initiation of |
18 | a nonjudicial foreclosure procedure against a timeshare |
19 | interest; providing procedures for an obligor's objection |
20 | to the nonjudicial foreclosure procedure; providing |
21 | conditions to a trustee's exercise of power of sale; |
22 | providing requirements for a notice of default and intent |
23 | to sell; providing requirements for a notice of sale; |
24 | providing requirements for a trustee's certificate of |
25 | compliance; providing requirements for the sale by auction |
26 | of foreclosed encumbered timeshare interests; providing |
27 | for the effect of a trustee's sale; providing requirements |
28 | for a trustee's deed; providing for the disposition of |
29 | proceeds of the sale; providing that the nonjudicial |
30 | foreclosure procedure does not impair or otherwise affect |
31 | the right to bring certain actions; providing application; |
32 | providing for actions for failure to follow the |
33 | nonjudicial foreclosure procedure; creating s. 721.856, |
34 | F.S.; establishing procedure for the nonjudicial |
35 | foreclosure of mortgage liens; providing for the |
36 | appointment of a trustee; providing recording requirements |
37 | for such liens; providing procedures for the initiation of |
38 | a nonjudicial foreclosure procedure against a timeshare |
39 | interest; providing procedures for an obligor's objection |
40 | to the nonjudicial foreclosure procedure; providing |
41 | conditions to a trustee's exercise of power of sale; |
42 | providing requirements for a notice of default and intent |
43 | to sell; providing requirements for a notice of sale; |
44 | providing requirements for a trustee's certificate of |
45 | compliance; providing requirements for the sale by auction |
46 | of foreclosed encumbered timeshare interests; providing |
47 | for the effect of a trustee's sale; providing requirements |
48 | for a trustee's deed; providing for the disposition of |
49 | proceeds of the sale; providing that the nonjudicial |
50 | foreclosure procedure does not impair or otherwise affect |
51 | the right to bring certain actions; providing for actions |
52 | for failure to follow the nonjudicial foreclosure |
53 | procedure; amending s. 721.86, F.S.; providing for |
54 | priority of application in case of conflict; providing an |
55 | effective date. |
56 |
|
57 | Be It Enacted by the Legislature of the State of Florida: |
58 |
|
59 | Section 1. Paragraph (jj) is added to subsection (5) of |
60 | section 721.07, Florida Statutes, to read: |
61 | 721.07 Public offering statement.-Prior to offering any |
62 | timeshare plan, the developer must submit a filed public |
63 | offering statement to the division for approval as prescribed by |
64 | s. 721.03, s. 721.55, or this section. Until the division |
65 | approves such filing, any contract regarding the sale of that |
66 | timeshare plan is subject to cancellation by the purchaser |
67 | pursuant to s. 721.10. |
68 | (5) Every filed public offering statement for a timeshare |
69 | plan which is not a multisite timeshare plan shall contain the |
70 | information required by this subsection. The division is |
71 | authorized to provide by rule the method by which a developer |
72 | must provide such information to the division. |
73 | (jj) The following statement in conspicuous type: |
74 | |
75 | The managing entity has a lien against each timeshare |
76 | interest to secure the payment of regular or special |
77 | assessments and ad valorem taxes. Your failure to make |
78 | any required payments may result in the judicial or |
79 | nonjudicial foreclosure of an assessment lien and the |
80 | loss of your timeshare interest. If the managing |
81 | entity initiates a nonjudicial procedure, you shall |
82 | have the option to object to the use of the |
83 | nonjudicial foreclosure procedure and the managing |
84 | entity may only proceed by filing a judicial |
85 | foreclosure action. |
86 |
|
87 | Section 2. Subsection (2) of section 721.16, Florida |
88 | Statutes, is amended to read: |
89 | 721.16 Liens for overdue assessments; liens for labor |
90 | performed on, or materials furnished to, a timeshare unit.- |
91 | (2) The managing entity may bring a judicial an action in |
92 | its name to foreclose a lien under subsection (1) in the manner |
93 | a mortgage of real property is foreclosed and may also bring an |
94 | action to recover a money judgment for the unpaid assessments |
95 | without waiving any claim of lien. As an alternative to |
96 | initiating a judicial action, the managing entity may initiate a |
97 | nonjudicial procedure to foreclose an assessment lien under s. |
98 | 721.855. |
99 | Section 3. Part III of chapter 721, Florida Statutes, |
100 | entitled "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 |
103 | read: |
104 | 721.81 Legislative purpose.-The purposes of this part are |
105 | to: |
106 | (1) Recognize that timeshare interests estates are parcels |
107 | of real property used for vacation experience rather than for |
108 | homestead or investment purposes and that there are numerous |
109 | timeshare interests estates in this the state. |
110 | (2) Recognize that the economic health and efficient |
111 | operation of the vacation ownership industry are in part |
112 | dependent upon the availability of an efficient and economical |
113 | process for all timeshare interest foreclosures foreclosure. |
114 | (3) Recognize the need to assist both owners' associations |
115 | and mortgagees by simplifying and expediting the process for the |
116 | judicial and nonjudicial of foreclosure of assessment liens and |
117 | mortgage liens against timeshare interests estates. |
118 | (4) Improve judicial economy and reduce court congestion |
119 | and the cost to taxpayers by establishing streamlined procedures |
120 | for the judicial and nonjudicial foreclosure of assessment liens |
121 | and mortgage liens against timeshare interests estates. |
122 | (5) Recognize that nearly all timeshare interest |
123 | foreclosures are uncontested. |
124 | (6) Protect the ability of consumers who own timeshare |
125 | interests located in this state to choose a judicial proceeding |
126 | for the foreclosure of an assessment lien or a mortgage lien |
127 | against their timeshare interest. |
128 | (7) Recognize that the use of the nonjudicial foreclosure |
129 | procedure established by ss. 721.855 and 721.856 shall have the |
130 | same force and effect as the use of the judicial foreclosure |
131 | procedure against a timeshare interest with respect to the |
132 | provisions of this chapter or any other applicable law. However, |
133 | obligors shall not be subject to a deficiency judgment even if |
134 | the proceeds from the sale of the timeshare interest are |
135 | insufficient to offset the amounts secured by the lien. |
136 | Section 5. Section 721.82, Florida Statutes, is amended to |
137 | read: |
138 | 721.82 Definitions.-As used in this part, the term: |
139 | (1) "Amounts secured by the lien" means all amounts |
140 | secured by an assessment lien or mortgage lien, including, but |
141 | not limited to, all past due amounts, accrued interest, late |
142 | fees, taxes, advances for the payment of taxes, insurance and |
143 | maintenance of the timeshare interest, and any fees or costs |
144 | incurred by the lienholder or trustee, including any reasonable |
145 | attorney's fees, trustee's fees, and costs incurred in |
146 | connection with the default. |
147 | (2)(1) "Assessment lien" means: |
148 | (a) A lien for delinquent assessments as provided in ss. |
149 | 721.16, 718.116, and 719.108, and 721.16 as to timeshare |
150 | condominiums; or |
151 | (b) A lien for unpaid taxes and special assessments as |
152 | provided in s. 192.037(8). |
153 | (3)(2) "Junior interestholder" means any person who has a |
154 | lien or interest of record against a timeshare interest estate |
155 | in the county or counties in which the timeshare interest estate |
156 | is located, which is inferior to the mortgage lien or assessment |
157 | lien being foreclosed under this part. |
158 | (4)(3) "Lienholder" means a holder of an assessment lien |
159 | or a holder of a mortgage lien, as applicable. A receiver |
160 | appointed under s. 721.26 is a lienholder for purposes of |
161 | foreclosure of assessment liens under this part. |
162 | (5)(4) "Mortgage" has the same meaning set forth in s. |
163 | 697.01. |
164 | (6)(5) "Mortgage lien" means a security interest in a |
165 | timeshare interest estate created by a mortgage encumbering the |
166 | timeshare interest estate. |
167 | (7)(6) "Mortgagee" means a person holding a mortgage lien. |
168 | (8)(7) "Mortgagor" means a person granting a mortgage lien |
169 | or a person who has assumed the obligation secured by a mortgage |
170 | lien. |
171 | (9)(8) "Notice address" means: |
172 | (a) As to an assessment lien, the address of the current |
173 | owner of a timeshare interest estate as reflected by the books |
174 | and records of the timeshare plan under ss. 721.13(4) and |
175 | 721.15(7). |
176 | (b) As to a mortgage lien: |
177 | 1. The address of the mortgagor as set forth in the |
178 | mortgage, the promissory note or a separate document executed by |
179 | the mortgagor at the time the mortgage lien was created, or the |
180 | most current address of the mortgagor according to the records |
181 | of the mortgagee; and |
182 | 2. If the current owner of the timeshare interest estate |
183 | is different from the mortgagor, the address of the current |
184 | owner of the timeshare interest estate as reflected by the books |
185 | and records of the mortgagee. |
186 | (c) As to a junior interestholder, the address as set |
187 | forth in the recorded instrument creating the junior lien |
188 | interest or interest lien, or in any recorded amendment |
189 | supplement thereto changing the address, or in any written |
190 | notification by the junior interestholder to the foreclosing |
191 | lienholder changing the of such change in address. |
192 | (10)(9) "Obligor" means the mortgagor, the person subject |
193 | to an assessment lien, or the record owner of the timeshare |
194 | interest estate. |
195 | (11) "Permitted delivery service" means any nationally |
196 | recognized common carrier delivery service or international |
197 | airmail service requiring a signed return receipt. |
198 | (12)(10) "Registered agent" means an agent duly appointed |
199 | by the obligor under s. 721.84 for the purpose of accepting all |
200 | notices and service of process under this part. A registered |
201 | agent may be an individual resident in this state whose business |
202 | office qualifies as a registered office, or a domestic or |
203 | foreign corporation or a not-for-profit corporation as defined |
204 | in chapter 617 authorized to transact business or to conduct its |
205 | affairs in this state, whose business office qualifies as a |
206 | registered office. A registered agent for any obligor may not be |
207 | the lienholder or the attorney for the lienholder. |
208 | (13)(11) "Registered office" means the street address of |
209 | the business office of the registered agent appointed under s. |
210 | 721.84, located in this state. |
211 | (14) "Trustee" means an attorney who is a member in good |
212 | standing of The Florida Bar or his or her law firm, or a title |
213 | insurer authorized to transact business in this state under s. |
214 | 624.401, appointed as trustee or as substitute trustee in |
215 | accordance with s. 721.855 or s. 721.856. A receiver appointed |
216 | under s. 721.26 may act as a trustee under s. 721.855. A trustee |
217 | must be independent as required by s. 721.05(20). |
218 | Section 6. Section 721.83, Florida Statutes, is amended to |
219 | read: |
220 | 721.83 Consolidation of judicial foreclosure actions.- |
221 | (1) A complaint in a foreclosure proceeding involving |
222 | timeshare interests estates may join in the same action multiple |
223 | defendant obligors and junior interestholders of separate |
224 | timeshare interests estates, provided: |
225 | (a) The foreclosure proceeding involves a single timeshare |
226 | property. |
227 | (b) The foreclosure proceeding is filed by a single |
228 | plaintiff. |
229 | (c) The default and remedy provisions in the written |
230 | instruments on which the foreclosure proceeding is based are |
231 | substantially the same for each defendant. |
232 | (d) The nature of the defaults alleged is the same for |
233 | each defendant. |
234 | (e) No more than 15 timeshare interests estates, without |
235 | regard to the number of defendants, are joined within the same |
236 | consolidated foreclosure action. |
237 | (2) In any foreclosure proceeding involving multiple |
238 | defendants filed under subsection (1), the court shall sever for |
239 | separate trial any count of the complaint in which a defense or |
240 | counterclaim is timely raised by a defendant. |
241 | (3) A consolidated timeshare foreclosure action shall be |
242 | considered a single action, suit, or proceeding for the payment |
243 | of filing fees and service charges pursuant to general law. In |
244 | addition to the payment of such filing fees and service charges, |
245 | an additional filing fee of up to $10 for each timeshare |
246 | interest estate joined in that action shall be paid to the clerk |
247 | of court. |
248 | Section 7. Section 721.85, Florida Statutes, is amended to |
249 | read: |
250 | 721.85 Service to notice address or on registered agent.- |
251 | (1) Service of process for a foreclosure proceeding |
252 | involving a timeshare interest estate may be made by any means |
253 | recognized by law. In addition, substituted service on an |
254 | obligor a party who has appointed a registered agent under s. |
255 | 721.84 may be made on such registered agent at the registered |
256 | office. Also, when using s. 48.194 where in rem or quasi in rem |
257 | relief only is sought, such service of process provisions are |
258 | modified in connection with a foreclosure proceeding against a |
259 | timeshare interest estate to provide that: |
260 | (a) Such service of process may be made on any person |
261 | whether the person is located inside or outside this state, by |
262 | certified or registered mail, return receipt requested, or by a |
263 | permitted delivery service, return receipt requested, addressed |
264 | to the person to be served at the notice address, or on the |
265 | person's party's registered agent duly appointed under s. |
266 | 721.84, at the registered office; and |
267 | (b) Service shall be considered obtained upon the signing |
268 | of the return receipt by any person at the notice address, or by |
269 | the registered agent. |
270 | (2) The current owner and the mortgagor of a timeshare |
271 | interest estate must promptly notify the owners' association and |
272 | the mortgagee of any change of address. |
273 | (3) Substituted notice under s. 721.855 or s. 721.856 for |
274 | any party who has appointed a registered agent under s. 721.84 |
275 | may be made on such registered agent at the registered office. |
276 | Section 8. Section 721.855, Florida Statutes, is created |
277 | to read: |
278 | 721.855 Procedure for the nonjudicial foreclosure of |
279 | assessment liens.-The provisions of this section establish a |
280 | nonjudicial foreclosure procedure for assessment liens. |
281 | (1) APPOINTMENT OF TRUSTEE.- |
282 | (a) A trustee or a substitute trustee may be appointed by |
283 | a lienholder at any time by recording a notice of appointment of |
284 | trustee or notice of substitution of trustee in the public |
285 | records of the county or counties in which the timeshare |
286 | interest is located. A lienholder may appoint multiple trustees |
287 | in a single appointment, and any appointed trustee may be used |
288 | by the lienholder regarding the nonjudicial foreclosure of any |
289 | assessment lien under any timeshare plan for which the trustee |
290 | is appointed. |
291 | (b) The recorded notice of appointment of trustee or |
292 | notice of substitution of trustee shall contain the name and |
293 | address of the trustee or substitute trustee, the name and |
294 | address of the lienholder, and the name and address of the |
295 | timeshare plan. |
296 | (c) The lienholder shall maintain a list of all trustees |
297 | and substitute trustees appointed by the lienholder and shall |
298 | provide an obligor with verification that a particular person is |
299 | an appointed trustee or substitute trustee within 3 business |
300 | days following receipt of a written request for such |
301 | verification from the obligor. |
302 | (2) INITIATING THE USE OF A NONJUDICIAL FORECLOSURE |
303 | PROCEDURE.- |
304 | (a) Before initiating the nonjudicial foreclosure |
305 | procedure against any timeshare interest in a given timeshare |
306 | plan, the managing entity shall inform owners of timeshare |
307 | interests in the timeshare plan in writing that the managing |
308 | entity has the right to elect to use the nonjudicial foreclosure |
309 | procedure with respect to foreclosure of assessment liens as |
310 | established in this section. The managing entity shall be deemed |
311 | to have complied with the requirements of this paragraph if the |
312 | owners of timeshare interests in the given timeshare plan are |
313 | informed by mail sent to each owner's notice address, in the |
314 | notice of an annual or special meeting of the owners, by posting |
315 | on the website of the applicable timeshare plan, or by any owner |
316 | communication used by the managing entity. |
317 | (b) Before initiating the nonjudicial foreclosure |
318 | procedure against any timeshare interest, a claim of lien |
319 | against the timeshare interest shall be recorded pursuant to s. |
320 | 721.16 or, if applicable, s. 718.116 or s. 719.108, and the |
321 | notice of the intent to file a lien shall be given pursuant to |
322 | s. 718.121 for timeshare condominiums and s. 719.108 for |
323 | timeshare cooperatives. |
324 | (c)1. In order to initiate a nonjudicial foreclosure |
325 | procedure against a timeshare interest, the lienholder shall |
326 | deliver an affidavit to the trustee that identifies the obligor, |
327 | the notice address of the obligor, the timeshare interest, the |
328 | official records book and page number where the claim of lien is |
329 | recorded, and the name and notice address of any junior |
330 | interestholder. The affidavit shall be accompanied by a title |
331 | search of the timeshare interest identifying any junior |
332 | interestholders of record, and the title search must be |
333 | performed within 60 calendar days before the date of the |
334 | affidavit. |
335 | 2. The affidavit shall also state that the obligor has |
336 | defaulted in the obligation to make a payment under a specified |
337 | provision of the timeshare instrument or applicable law. |
338 | 3. The affidavit shall also specify the amounts secured by |
339 | the lien as of the date of the affidavit and a per diem amount |
340 | to account for further accrual of the amounts secured by the |
341 | lien. |
342 | (3) OBLIGOR'S RIGHT TO OBJECT TO USE OF THE NONJUDICIAL |
343 | FORECLOSURE PROCEDURE.- |
344 | (a) The obligor may object to the lienholder's use of the |
345 | nonjudicial foreclosure procedure for a specific default at any |
346 | time before the sale of the timeshare interest under subsection |
347 | (8) by delivering a written objection to the trustee using the |
348 | objection form provided for in subsection (5). If the trustee |
349 | receives the written objection from the obligor, the trustee may |
350 | not proceed with the nonjudicial foreclosure procedure as to the |
351 | default specified in the notice of default and intent to sell |
352 | under subsection (5), and the lienholder may proceed thereafter |
353 | only with a judicial foreclosure action as to that specified |
354 | default. |
355 | (b) If the obligor delivers the written objection |
356 | authorized in paragraph (a) to the trustee more than 30 calendar |
357 | days after the notice of default and intent to sell is deemed |
358 | perfected under subsection (5), the lienholder is entitled to |
359 | collect from the obligor in a judicial foreclosure procedure all |
360 | of the costs incurred in the nonjudicial foreclosure procedure. |
361 | (4) CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A |
362 | trustee may sell an encumbered timeshare interest foreclosed |
363 | under this section if: |
364 | (a) The trustee has received the affidavit from the |
365 | lienholder under paragraph (2)(c); |
366 | (b) The trustee has not received a written objection to |
367 | the use of the nonjudicial foreclosure procedure under |
368 | subsection (3); |
369 | (c) There is no lis pendens recorded and pending against |
370 | the same timeshare interest and the trustee has not been served |
371 | notice of the filing of any action to enjoin the nonjudicial |
372 | foreclosure sale; |
373 | (d) The trustee has provided written notice of default and |
374 | intent to sell as required by subsection (5) and a period of at |
375 | least 30 calendar days has elapsed after such notice is deemed |
376 | perfected under subsection (5); and |
377 | (e) The notice of sale required by subsection (6) has been |
378 | recorded in the public records of the county or counties in |
379 | which the timeshare interest is located. |
380 | (5) NOTICE OF DEFAULT AND INTENT TO SELL.- |
381 | (a) In any foreclosure proceeding under this section, the |
382 | trustee is required to notify the obligor of the proceeding by |
383 | sending the obligor a written notice of default and intent to |
384 | sell to the notice address of the obligor by certified or |
385 | registered mail, return receipt requested, or by a permitted |
386 | delivery service, return receipt requested, as follows: |
387 | 1. The notice of default and intent to sell shall identify |
388 | the obligor, the notice address of the obligor, the legal |
389 | description of the timeshare interest, the nature of the |
390 | default, the amounts secured by the lien, and a per diem amount |
391 | to account for further accrual of the amounts secured by the |
392 | lien and shall state the method by which the obligor may cure |
393 | the default. |
394 | 2. The notice of default and intent to sell shall include |
395 | an objection form with which the obligor can object to the use |
396 | of the nonjudicial procedure by signing and returning the |
397 | objection form to the trustee. The objection form shall identify |
398 | the obligor, the notice address of the obligor, the timeshare |
399 | interest, and the return address of the trustee and shall state: |
400 | "The undersigned obligor exercises the obligor's right to object |
401 | to the use of the nonjudicial foreclosure procedure contained in |
402 | section 721.855, Florida Statutes." |
403 | 3. The notice of default and intent to sell shall also |
404 | contain a statement in substantially the following form: |
405 |
|
406 | If you fail to cure the default as set forth in this |
407 | notice or take other appropriate action with regard to |
408 | this foreclosure matter, you risk losing ownership of |
409 | your timeshare interest through the nonjudicial |
410 | foreclosure procedure established in section 721.855, |
411 | Florida Statutes. You may choose to sign and send to |
412 | the trustee the enclosed objection form, exercising |
413 | your right to object to the use of the nonjudicial |
414 | procedure. If you do not object to the use of the |
415 | nonjudicial foreclosure procedure, you shall not be |
416 | subject to a deficiency judgment even if the proceeds |
417 | from the sale of your timeshare interest are |
418 | insufficient to offset the amounts secured by the |
419 | lien, which may include all past due amounts, accrued |
420 | interest, late fees, taxes, advances for the payment |
421 | of taxes, insurance and maintenance of the timeshare |
422 | interest, and any fees or costs incurred by the |
423 | lienholder or trustee, including any reasonable |
424 | attorney's fees, trustee's fees, and costs incurred in |
425 | connection with the default. Upon the trustee's |
426 | receipt of your signed objection form, the foreclosure |
427 | of the lien with respect to the default specified in |
428 | this notice shall be subject to the judicial |
429 | foreclosure procedure only. You have the right to cure |
430 | your default in the manner set forth in this notice at |
431 | any time before the trustee's sale of your timeshare |
432 | interest. If you object to the use of the nonjudicial |
433 | foreclosure procedure, you may be subject to a |
434 | deficiency judgment under any subsequent judicial |
435 | foreclosure action. In addition, if you deliver your |
436 | written objection to the trustee more than 30 calendar |
437 | days after the notice of default and intent to sell |
438 | has been delivered, the lienholder is entitled to |
439 | collect from you in a judicial foreclosure procedure |
440 | all of the costs incurred in the nonjudicial |
441 | foreclosure procedure. |
442 |
|
443 | 4. The trustee shall also mail a copy of the notice of |
444 | default and intent to sell, without the objection form, to the |
445 | notice address of any junior interestholder by certified or |
446 | registered mail, return receipt requested, or by a permitted |
447 | delivery service, return receipt requested. |
448 | 5. Notice under this paragraph is considered perfected |
449 | upon the trustee receiving the return receipt bearing the |
450 | signature of the obligor. |
451 | (b) If a signed return receipt from the certified or |
452 | registered mail or the permitted delivery service is received by |
453 | the trustee within 30 calendar days after the trustee sent the |
454 | notice under paragraph (a), but the trustee cannot ascertain |
455 | from the receipt that the obligor is the person who signed the |
456 | receipt, the trustee shall send a second notice in the form |
457 | required under paragraph (a) to the notice address of the |
458 | obligor by certified or registered mail, return receipt |
459 | requested, or by a permitted delivery service, return receipt |
460 | requested. Notice under this paragraph is considered perfected |
461 | upon the trustee receiving the return receipt for the second |
462 | notice bearing the signature of the obligor. Unless the trustee |
463 | receives a signed return receipt from the certified or |
464 | registered mail or the permitted delivery service for the second |
465 | notice within 30 calendar days after the trustee sent the notice |
466 | under this paragraph and the trustee can ascertain from the |
467 | receipt that the obligor is the person who signed the receipt, |
468 | the trustee shall perfect service in the manner set forth in |
469 | either paragraph (c) or paragraph (d). |
470 | (c) If a signed return receipt from the certified or |
471 | registered mail or the permitted delivery service is not |
472 | received by the trustee within 30 calendar days after the |
473 | trustee sent the notice under paragraph (a) or the second notice |
474 | under paragraph (b), if applicable, the trustee shall mail a |
475 | copy of the notice required by paragraph (a) by first class |
476 | mail, postage prepaid, to the notice address of the person with |
477 | the return address of the trustee on the envelope. Notice under |
478 | this paragraph is considered perfected upon the mailing of the |
479 | copy of the notice to the person. |
480 | (d)1. If the notice required by paragraph (a) or the |
481 | second notice required by paragraph (b), if applicable, is |
482 | returned as undeliverable within 30 calendar days after the |
483 | trustee sent the notice and if by a diligent search and inquiry |
484 | the trustee cannot obtain a different address for the obligor or |
485 | junior interestholder, the trustee may perfect notice against |
486 | that person by publication in a newspaper of general circulation |
487 | in the county or counties in which the timeshare interest is |
488 | located. The notice shall appear at least once a week for 2 |
489 | consecutive weeks. The trustee may group an unlimited number of |
490 | notices in the same publication, provided that all of the |
491 | notices pertain to the same timeshare plan. Notice under this |
492 | subparagraph is considered perfected upon publication as |
493 | required in this subparagraph. |
494 | 2. If the trustee's diligent search and inquiry produces |
495 | an address different from the notice address, the trustee shall |
496 | mail a copy of the notice by first class mail, postage prepaid, |
497 | to the new address with the return address of the trustee on the |
498 | envelope. Notice under this subparagraph is considered perfected |
499 | upon the mailing of the copy of the notice to the new address. |
500 | (e) If notice is perfected under paragraph (a) or |
501 | paragraph (b), the trustee shall execute an affidavit in |
502 | recordable form setting forth the manner in which notice was |
503 | perfected and attach the affidavit to the certificate of |
504 | compliance set forth in subsection (7). The affidavit shall |
505 | state the nature of the notice, the date on which the notice was |
506 | mailed, the name and address on the envelope containing the |
507 | notice, the manner in which the notice was mailed, and the basis |
508 | for that knowledge. The signed return receipt from the certified |
509 | or registered mail or the permitted delivery service shall be |
510 | attached to the affidavit. |
511 | (f) If notice is perfected under paragraph (c), the |
512 | trustee shall execute an affidavit in recordable form setting |
513 | forth the manner in which notice was perfected and attach the |
514 | affidavit to the certificate of compliance set forth in |
515 | subsection (7). The affidavit shall state the nature of the |
516 | notice, the date on which the notice was mailed, the name and |
517 | address on the envelope containing the notice, the manner in |
518 | which the notice was mailed, the fact that a signed receipt from |
519 | the certified or registered mail or the permitted delivery |
520 | service was not timely received, the date on which a copy of the |
521 | notice was mailed again by first class mail with the return |
522 | address of the trustee on the envelope, and the name and address |
523 | on the envelope containing the notice. The envelopes from the |
524 | attempts to mail notice, if available, shall also be attached to |
525 | the affidavit. |
526 | (g) If notice is perfected by publication under paragraph |
527 | (d), the trustee shall execute an affidavit in recordable form |
528 | setting forth the manner in which notice was perfected and |
529 | attach the affidavit to the certificate of compliance set forth |
530 | in subsection (7). The affidavit shall include all the |
531 | information contained in paragraph (f) and shall also state that |
532 | the notice was perfected by publication after diligent search |
533 | and inquiry was made for the current address for the obligor. |
534 | The returned envelope from the attempt to mail notice of the |
535 | publication, if available, shall be attached to the affidavit. |
536 | No 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 |
540 | junior 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 |
544 | foreclosure. |
545 | 5. The official records book and page numbers where the |
546 | claim of lien is recorded. |
547 | 6. The amounts secured by the lien and a per diem amount |
548 | to account for further accrual of the amounts secured by the |
549 | lien. |
550 | 7. The date, location, and starting time of the trustee's |
551 | sale. |
552 | 8. The right of and the method by which the obligor may |
553 | cure the default or the right of any junior interestholder to |
554 | redeem its interest up to the date the trustee issues the |
555 | certificate of sale in accordance with paragraph (8)(f). |
556 | (b) The trustee shall send a copy of the notice of sale on |
557 | the date it is submitted for recording, by first class mail, |
558 | postage prepaid, to the notice addresses of the obligor and any |
559 | junior interestholder. |
560 | (c) Subsequent to the date of recording of the notice of |
561 | sale, no notice is required to be given to any person claiming |
562 | an interest in the timeshare interest except as provided in this |
563 | section. The recording of the notice of sale has the same force |
564 | and effect as the filing of a lis pendens in a judicial |
565 | proceeding under s. 48.23. |
566 | (d)1. The trustee shall publish the notice of sale in a |
567 | newspaper of general circulation in the county or counties in |
568 | which the timeshare interest is located at least once a week for |
569 | 2 consecutive weeks before the date of the sale. The last |
570 | publication shall occur at least 5 calendar days before the |
571 | sale. |
572 | 2. The trustee may group an unlimited number of notices of |
573 | sale in the same publication, provided that all of the notices |
574 | of 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 |
577 | sale, the trustee shall execute and acknowledge a certificate of |
578 | compliance and record it in the public records of the county or |
579 | counties 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 |
582 | sell and attach the affidavit required by subsection (5). |
583 | 2. State that the default was not cured and the timeshare |
584 | interest was not redeemed, and state that the trustee did not |
585 | receive any written objection pursuant subsection (3). |
586 | 3. Confirm that the notice of sale was published as |
587 | required under paragraph (6)(d) and attach an affidavit of |
588 | publication for the notice of sale. |
589 | 4. Confirm that the notice of sale was mailed pursuant to |
590 | paragraph (6)(b) together with a list of the parties to whom the |
591 | notice of sale was mailed. |
592 | (c) In furtherance of the execution and recording of the |
593 | certificate of compliance required under this subsection, the |
594 | trustee is entitled to rely upon an affidavit or certification |
595 | from the lienholder as to the facts and circumstances of default |
596 | and failure to cure the default. |
597 | (8) MANNER OF SALE.- |
598 | (a) The sale of a timeshare interest by the trustee in a |
599 | public auction shall be held in the county in which the |
600 | timeshare interest is located, on the date, location, and |
601 | starting time designated in the notice of sale, which shall be |
602 | after 9:00 a.m. but before 4:00 p.m. on a business day not less |
603 | than 30 calendar days after the recording of the notice of sale. |
604 | The trustee's sale may occur online at a specific website on the |
605 | Internet or in any other manner used by the clerk of the court |
606 | for a judicial foreclosure sales procedure in the county or |
607 | counties in which the timeshare interest is located. |
608 | (b) The trustee shall conduct the sale and act as the |
609 | auctioneer. |
610 | (c) The lienholder and any person other than the trustee |
611 | may bid at the sale. In lieu of participating in the sale, the |
612 | lienholder may send the trustee written bidding instructions |
613 | that the trustee shall announce as appropriate during the sale. |
614 | (d) The trustee may postpone the sale from time to time. |
615 | In such case, notice of postponement must be given by the |
616 | trustee at the date, time, and location contained in the notice |
617 | of sale. The notice of sale for the postponed sale shall be |
618 | mailed pursuant to paragraph (6)(b), recorded pursuant to |
619 | paragraph (4)(e), and published pursuant to paragraph (6)(d). |
620 | The effective date of the initial notice of sale for purposes of |
621 | paragraph (4)(b) is not affected by a postponed sale. |
622 | (e) The highest bidder of the timeshare interest shall pay |
623 | the price bid to the trustee in cash or certified funds on the |
624 | day of the sale. If the lienholder is the highest bidder, the |
625 | lienholder shall receive a credit up to the amount set forth in |
626 | the notice of sale as required by subparagraph (6)(a)6. |
627 | (f) On the date of the sale and upon receipt of the cash |
628 | or certified funds due from the highest bidder, the trustee |
629 | shall issue to the highest bidder a certificate of sale stating |
630 | that a foreclosure conforming to the requirements of this |
631 | section has occurred, including the time, location, and date of |
632 | the sale, that the timeshare interest was sold, the amounts |
633 | secured by the lien, and the amount of the highest bid. A copy |
634 | of the certificate of sale shall be mailed by certified or |
635 | registered mail, return receipt requested, or by a permitted |
636 | delivery service, return receipt requested, to all persons |
637 | entitled 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 |
640 | terminates all interests of any person to whom notice is given |
641 | under paragraph (4)(d) and paragraph (6)(b), and of any other |
642 | person claiming by, through, or under any such person, in the |
643 | affected timeshare interest. The assessment lien does not merge |
644 | into the trustee's deed to any extent that a subsequent judicial |
645 | foreclosure or reforeclosure of the assessment lien becomes |
646 | necessary or required. A failure to give notice to any person |
647 | entitled to notice does not affect the validity of the sale as |
648 | to the interests of any person properly notified. A person |
649 | entitled to notice but not given notice has the rights of a |
650 | person not made a defendant in a judicial foreclosure. |
651 | (b) A lienholder may conduct a subsequent foreclosure of a |
652 | timeshare interest to correct any failure to meet the |
653 | requirements of this section before the issuance of a |
654 | certificate of sale under paragraph (8)(f). |
655 | (c) On the issuance of a certificate of sale under |
656 | paragraph (8)(f), all rights of redemption that have been |
657 | foreclosed under this section shall terminate. |
658 | (d) A sale conducted under subsection (8) extinguishes the |
659 | assessment lien and the obligor's liability for all amounts |
660 | secured by the lien. The lienholder has no right to any |
661 | deficiency judgment against the obligor after a sale of the |
662 | obligor's timeshare interest under this section. |
663 | (e) The issuance and recording of the trustee's deed is |
664 | presumed valid and may be relied upon by third parties without |
665 | actual knowledge of irregularities in the sale. |
666 | (10) TRUSTEE'S DEED.- |
667 | (a) The trustee's deed shall include the name and address |
668 | of the trustee, the name and address of the highest bidder, the |
669 | name of the former owner, a legal description of the timeshare |
670 | interest, and the name and address of the preparer of the |
671 | trustee's deed. The trustee's deed shall recite that the |
672 | certificate of compliance was recorded, and shall contain no |
673 | warranties of title from the trustee. |
674 | (b) Ten calendar days after a sale, absent the prior |
675 | filing and service on the trustee of a judicial action to enjoin |
676 | issuance of the trustee's deed to the timeshare interest, the |
677 | trustee 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 |
680 | county or counties in which the timeshare interest is located. |
681 | (c)1. The certificate of compliance and trustee's deed |
682 | together are presumptive evidence of the truth of the matters |
683 | set forth in them, and no action to set aside the sale and void |
684 | the trustee's deed may be filed or otherwise pursued against any |
685 | person acquiring the timeshare interest for value, including any |
686 | subsequent mortgagee or buyer. |
687 | 2. The trustee's deed conveys to the highest bidder all |
688 | rights, title, and interest in the timeshare interest that the |
689 | former owner had, or had the power to convey, at the time of the |
690 | recording of the claim of lien, together with all rights, title, |
691 | and interest that the former owner or his or her successors in |
692 | interest acquired after the recording of the claim of lien. |
693 | 3. The issuance and recording of a trustee's deed shall |
694 | have the same force and effect as the issuance and recording of |
695 | a certificate of title by the clerk of the court in a judicial |
696 | foreclosure action. |
697 | (11) DISPOSITION OF PROCEEDS OF SALE.- |
698 | (a) The trustee shall apply the proceeds of the sale as |
699 | follows: |
700 | 1. To the expenses of the sale, including compensation of |
701 | the trustee. |
702 | 2. To the amount owed and set forth in the notice as |
703 | required in subparagraph (6)(a)6. |
704 | 3. If there are junior interestholders, the trustee may |
705 | file an action in interpleader, pay the surplus to a court of |
706 | competent jurisdiction, name the competing junior |
707 | interestholders, and ask the court to determine the proper |
708 | distribution of the surplus. In any interpleader action, the |
709 | trustee shall recover reasonable attorney's fees and costs. |
710 | 4. If there are no junior interestholders, or if all |
711 | junior interestholders have been paid, any surplus shall be paid |
712 | to the former owner. If the trustee is unable to locate the |
713 | former owner 1 year after the sale, the surplus, if any, shall |
714 | be deposited with the Chief Financial Officer pursuant to |
715 | chapter 717. |
716 | (b) In disposing of the proceeds of the sale, the trustee |
717 | may rely on the information provided in the affidavit of the |
718 | lienholder under paragraph (2)(c) and, in the event of a dispute |
719 | or uncertainty over such claims, the trustee has the discretion |
720 | to submit the matter to adjudication by court, by interpleader, |
721 | or otherwise and shall recover reasonable attorney's fees and |
722 | costs. |
723 | (12) JUDICIAL FORECLOSURE ACTIONS.-The nonjudicial |
724 | foreclosure procedure established in this section does not |
725 | impair or otherwise affect the lienholder's continuing right to |
726 | bring a judicial foreclosure action, in lieu of using the |
727 | nonjudicial foreclosure procedure, with respect to any |
728 | assessment lien. |
729 | (13) APPLICATION.-This section applies to any default |
730 | giving rise to the imposition of an assessment lien which occurs |
731 | after the effective date of this section. An amendment to a |
732 | timeshare instrument is not required to permit a managing entity |
733 | lienholder to use the nonjudicial foreclosure procedures of this |
734 | section. If a timeshare instrument contains any provision that |
735 | prevents the use of nonjudicial foreclosure procedures, an |
736 | amendment to the timeshare instrument permitting the use of the |
737 | nonjudicial foreclosure procedure set forth in this section may |
738 | be adopted by a majority of those present and voting at a duly |
739 | called meeting of the owners' association at which at least 15 |
740 | percent of the voting interests are present in person or by |
741 | proxy. |
742 | (14) ACTIONS FOR FAILURE TO FOLLOW THE NONJUDICIAL |
743 | FORECLOSURE PROCEDURE.-An action for actual damages for a |
744 | material violation of this section may be brought by an obligor |
745 | against the lienholder for the failure to follow the nonjudicial |
746 | foreclosure procedure contained in this section. |
747 | Section 9. Section 721.856, Florida Statutes, is created |
748 | to read: |
749 | 721.856 Procedure for the nonjudicial foreclosure of |
750 | mortgage liens.-The provisions of this section establish a |
751 | nonjudicial foreclosure procedure for mortgage liens. |
752 | (1) APPOINTMENT OF TRUSTEE.- |
753 | (a) A trustee or a substitute trustee may be appointed by |
754 | a lienholder at any time by recording a notice of appointment of |
755 | trustee or notice of substitution of trustee in the public |
756 | records of the county or counties in which the timeshare |
757 | interest is located. A lienholder may appoint multiple trustees |
758 | in a single appointment, and any appointed trustee may be used |
759 | by the lienholder regarding the nonjudicial foreclosure of any |
760 | mortgage lien. |
761 | (b) The recorded notice of appointment of trustee or |
762 | notice of substitution of trustee shall contain the name and |
763 | address of the trustee or substitute trustee, the name and |
764 | address of the lienholder, and the name and address of the |
765 | timeshare plan. |
766 | (c) The lienholder shall maintain a list of all trustees |
767 | and substitute trustees appointed by the lienholder and shall |
768 | provide an obligor with verification that a particular person is |
769 | an appointed trustee or substitute trustee within 3 business |
770 | days after receipt of a written request for such verification |
771 | from the obligor. |
772 | (2) INITIATING THE NONJUDICIAL FORECLOSURE OF MORTGAGE |
773 | LIENS.- |
774 | (a) Before initiating the nonjudicial foreclosure against |
775 | a timeshare interest, the mortgage, or an amendment to a |
776 | mortgage executed by the obligor before the effective date of |
777 | this section, must contain a statement in substantially the |
778 | following form: |
779 | |
780 | If the mortgagor fails to make timely payments under |
781 | the obligation secured by this mortgage, or is |
782 | otherwise deemed in uncured default of this mortgage, |
783 | the lien against the mortgagor's timeshare interest |
784 | created by this mortgage may be foreclosed in |
785 | accordance with either a judicial foreclosure |
786 | procedure or a nonjudicial procedure and may result in |
787 | the loss of your timeshare interest. If the mortgagee |
788 | initiates a nonjudicial foreclosure procedure, the |
789 | mortgagor shall have the option to object and the |
790 | mortgagee may proceed only by filing a judicial |
791 | foreclosure action. |
792 |
|
793 | (b)1. In order to initiate a nonjudicial foreclosure |
794 | procedure against a timeshare interest, the lienholder shall |
795 | deliver an affidavit to the trustee that identifies the obligor, |
796 | the notice address of the obligor, the timeshare interest, the |
797 | official records book and page number where the mortgage is |
798 | recorded, and the name and notice address of any junior |
799 | interestholder. The affidavit shall be accompanied by a title |
800 | search of the timeshare interest identifying any junior |
801 | interestholders of record, and the title search must be |
802 | performed within 60 calendar days before the date of the |
803 | affidavit. |
804 | 2. The affidavit shall also state that the obligor has |
805 | defaulted in the obligation to make a payment under a specified |
806 | provision of the mortgage or is otherwise deemed in uncured |
807 | default under a specified provision of the mortgage. |
808 | 3. The affidavit shall also specify the amounts secured by |
809 | the lien as of the date of the affidavit and a per diem amount |
810 | to account for further accrual of the amounts secured by the |
811 | lien. |
812 | (3) OBLIGOR'S RIGHT TO OBJECT TO USE OF THE NONJUDICIAL |
813 | FORECLOSURE PROCEDURE.- |
814 | (a) The obligor may object to the lienholder's use of the |
815 | nonjudicial foreclosure procedure for a specific default at any |
816 | time before the sale of the timeshare interest under subsection |
817 | (8) by delivering a written objection to the trustee using the |
818 | objection form provided for in subsection (5). If the trustee |
819 | receives the written objection from the obligor, the trustee may |
820 | not proceed with the nonjudicial foreclosure procedure as to the |
821 | default specified in the notice of default and intent to sell |
822 | under subsection (5), and the lienholder may proceed thereafter |
823 | only with a judicial foreclosure action as to that specified |
824 | default. |
825 | (b) If the obligor delivers the written objection |
826 | authorized in paragraph (a) to the trustee more than 30 calendar |
827 | days after the notice of default and intent to sell is deemed |
828 | perfected under subsection (5), the lienholder is entitled to |
829 | collect from the obligor in a judicial foreclosure procedure all |
830 | of the costs incurred in the nonjudicial foreclosure procedure. |
831 | (4) CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A |
832 | trustee may sell an encumbered timeshare interest foreclosed |
833 | under this section if: |
834 | (a) The trustee has received the affidavit from the |
835 | lienholder under paragraph (2)(c); |
836 | (b) The trustee has not received a written objection to |
837 | the use of the nonjudicial foreclosure procedure under |
838 | subsection (3); |
839 | (c) There is no lis pendens recorded and pending against |
840 | the same timeshare interest, and the trustee has not been served |
841 | notice of the filing of any action to enjoin the nonjudicial |
842 | foreclosure sale; |
843 | (d) The trustee is in possession of the original |
844 | promissory note executed by the mortgagor and secured by the |
845 | mortgage lien; |
846 | (e) The trustee has provided written notice of default and |
847 | intent to sell as required by subsection (5) and a period of at |
848 | least 30 calendar days has elapsed after such notice is deemed |
849 | perfected under subsection (5); and |
850 | (f) The notice of sale required by subsection (6) has been |
851 | recorded in the public records of the county in which the |
852 | mortgage was recorded. |
853 | (5) NOTICE OF DEFAULT AND INTENT TO SELL.- |
854 | (a) In any foreclosure proceeding under this section, the |
855 | trustee is required to notify the obligor of the proceeding by |
856 | sending the obligor a written notice of default and intent to |
857 | sell to the notice address of the obligor by certified or |
858 | registered mail, return receipt requested, or by a permitted |
859 | delivery service, return receipt requested, as follows: |
860 | 1. The notice of default and intent to sell shall identify |
861 | the obligor, the notice address of the obligor, the legal |
862 | description of the timeshare interest, the nature of the |
863 | default, the amounts secured by the lien, and a per diem amount |
864 | to account for further accrual of the amounts secured by the |
865 | lien and shall state the method by which the obligor may cure |
866 | the default. |
867 | 2. The notice of default and intent to sell shall include |
868 | an objection form with which the obligor can object to the use |
869 | of the nonjudicial procedure by signing and returning the |
870 | objection form to the trustee. The objection form shall identify |
871 | the obligor, the notice address of the obligor, the timeshare |
872 | interest, and the return address of the trustee and shall state: |
873 | "The undersigned obligor exercises the obligor's right to object |
874 | to the use of the nonjudicial foreclosure procedure contained in |
875 | section 721.856, Florida Statutes." |
876 | 3. The notice of default and intent to sell shall also |
877 | contain a statement in substantially the following form: |
878 | |
879 | If you fail to cure the default as set forth in this |
880 | notice or take other appropriate action with regard to |
881 | this foreclosure matter, you risk losing ownership of |
882 | your timeshare interest through the nonjudicial |
883 | foreclosure procedure established in section 721.856, |
884 | Florida Statutes. You may choose to sign and send to |
885 | the trustee the enclosed objection form, exercising |
886 | your right to object to the use of the nonjudicial |
887 | procedure. If you do not object to the use of the |
888 | nonjudicial foreclosure procedure, you shall not be |
889 | subject to a deficiency judgment even if the proceeds |
890 | from the sale of your timeshare interest are |
891 | insufficient to offset the amounts secured by the |
892 | lien, which may include all past due amounts, accrued |
893 | interest, late fees, taxes, advances for the payment |
894 | of taxes, insurance, and maintenance of the timeshare |
895 | interest, and any fees or costs incurred by the |
896 | lienholder or trustee, including any reasonable |
897 | attorney's fees, trustee's fees and costs incurred in |
898 | connection with the default. Upon the trustee's |
899 | receipt of your signed objection form, the foreclosure |
900 | of the lien with respect to the default specified in |
901 | this notice shall be subject to the judicial |
902 | foreclosure procedure only. You have the right to cure |
903 | your default in the manner set forth in this notice at |
904 | any time before the trustee's sale of your timeshare |
905 | interest. If you object to the use of the nonjudicial |
906 | foreclosure procedure, you may be subject to a |
907 | deficiency judgment under any subsequent judicial |
908 | foreclosure action. In addition, if you deliver your |
909 | written objection to the trustee more than 30 calendar |
910 | days after the notice of default and intent to sell |
911 | has been delivered, the lienholder is entitled to |
912 | collect from you in a judicial foreclosure procedure |
913 | all of the costs incurred in the nonjudicial |
914 | foreclosure procedure. |
915 |
|
916 | 4. The trustee shall also mail a copy of the notice of |
917 | default and intent to sell, without the objection form, to the |
918 | notice address of any junior interestholder by certified or |
919 | registered mail, return receipt requested, or by a permitted |
920 | delivery service, return receipt requested. |
921 | 5. Notice under this paragraph is considered perfected |
922 | upon the trustee receiving the return receipt bearing the |
923 | signature of the obligor. |
924 | (b) If a signed return receipt from the certified or |
925 | registered mail or the permitted delivery service is received by |
926 | the trustee within 30 calendar days after the trustee sent the |
927 | notice under paragraph (a), but the trustee cannot ascertain |
928 | from the receipt that the obligor is the person who signed the |
929 | receipt, the trustee shall send a second notice in the form |
930 | required under paragraph (a) to the notice address of the |
931 | obligor by certified or registered mail, return receipt |
932 | requested, or by a permitted delivery service, return receipt |
933 | requested. Notice under this paragraph is considered perfected |
934 | upon the trustee receiving the return receipt for the second |
935 | notice bearing the signature of the obligor. Unless the trustee |
936 | receives a signed return receipt from the certified or |
937 | registered mail or the permitted delivery service for the second |
938 | notice within 30 calendar days after the trustee sent the notice |
939 | under this paragraph and the trustee can ascertain from the |
940 | receipt that the obligor is the person who signed the receipt, |
941 | the trustee shall perfect service in the manner set forth in |
942 | either paragraph (c) or paragraph (d). |
943 | (c) If a signed return receipt from the certified or |
944 | registered mail or the permitted delivery service is not |
945 | received by the trustee within 30 calendar days after the |
946 | trustee sent the notice under paragraph (a) or the second notice |
947 | under paragraph (b), if applicable, the trustee shall mail a |
948 | copy of the notice required by paragraph (a) by first class |
949 | mail, postage prepaid, to the notice address of the person with |
950 | the return address of the trustee on the envelope. Notice under |
951 | this paragraph is considered perfected upon the mailing of the |
952 | copy of the notice to the person. |
953 | (d)1. If the notice required by paragraph (a) or the |
954 | second notice required by paragraph (b), if applicable, is |
955 | returned as undeliverable within 30 calendar days after the |
956 | trustee sent the notice and if by a diligent search and inquiry |
957 | the trustee cannot obtain a different address for the obligor or |
958 | junior interestholder, the trustee may perfect notice against |
959 | that person by publication in a newspaper of general circulation |
960 | in the county or counties in which the timeshare interest is |
961 | located. The notice shall appear at least once a week for 2 |
962 | consecutive weeks. The trustee may group an unlimited number of |
963 | notices in the same publication, provided that all of the |
964 | notices pertain to the same timeshare plan. Notice under this |
965 | subparagraph is considered perfected upon publication as |
966 | required in this subparagraph. |
967 | 2. If the trustee's diligent search and inquiry produces |
968 | an address different from the notice address, the trustee shall |
969 | mail a copy of the notice by first class mail, postage prepaid, |
970 | to the new address with the return address of the trustee on the |
971 | envelope. Notice under this subparagraph is considered perfected |
972 | upon the mailing of the copy of the notice to the new address. |
973 | (e) If notice is perfected under paragraph (a) or |
974 | paragraph (b), the trustee shall execute an affidavit in |
975 | recordable form setting forth the manner in which notice was |
976 | perfected and attach the affidavit to the certificate of |
977 | compliance set forth in subsection (7). The affidavit shall |
978 | state the nature of the notice, the date on which the notice was |
979 | mailed, the name and address on the envelope containing the |
980 | notice, the manner in which the notice was mailed, and the basis |
981 | for that knowledge. The signed return receipt from the certified |
982 | or registered mail or the permitted delivery service shall be |
983 | attached to the affidavit. |
984 | (f) If notice is perfected under paragraph (c), the |
985 | trustee shall execute an affidavit in recordable form setting |
986 | forth the manner in which notice was perfected and attach the |
987 | affidavit to the certificate of compliance set forth in |
988 | subsection (7). The affidavit shall state the nature of the |
989 | notice, the date on which the notice was mailed, the name and |
990 | address on the envelope containing the notice, the manner in |
991 | which the notice was mailed, the fact that a signed receipt from |
992 | the certified or registered mail or the permitted delivery |
993 | service was not timely received, the date on which a copy of the |
994 | notice was mailed again by first class mail with the return |
995 | address of the trustee on the envelope, and the name and address |
996 | on the envelope containing the notice. The envelopes from the |
997 | attempts to mail notice, if available, shall also be attached to |
998 | the affidavit. |
999 | (g) If notice is perfected by publication under paragraph |
1000 | (d), the trustee shall execute an affidavit in recordable form |
1001 | setting forth the manner in which notice was perfected and |
1002 | attach the affidavit to the certificate of compliance set forth |
1003 | in subsection (7). The affidavit shall include all the |
1004 | information contained in paragraph (f) and shall also state that |
1005 | the notice was perfected by publication after diligent search |
1006 | and inquiry was made for the current address for the obligor. |
1007 | The returned envelope from the attempt to mail notice of the |
1008 | publication, if available, shall be attached to the affidavit. |
1009 | No 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 |
1013 | junior 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 |
1017 | foreclosure. |
1018 | 5. The official records book and page numbers where the |
1019 | mortgage is recorded. |
1020 | 6. The amounts secured by the lien and a per diem amount |
1021 | to account for further accrual of the amounts secured by the |
1022 | lien. |
1023 | 7. The date, location, and starting time of the trustee's |
1024 | sale. |
1025 | 8. The right of and the method by which the obligor may |
1026 | cure the default or the right of any junior interestholder to |
1027 | redeem its interest up to the date the trustee issues the |
1028 | certificate of sale in accordance with paragraph (8)(f). |
1029 | (b) The trustee shall send a copy of the notice of sale on |
1030 | the date it is submitted for recording, by first class mail, |
1031 | postage prepaid, to the notice addresses of the obligor and any |
1032 | junior interestholder. |
1033 | (c) Subsequent to the date of recording of the notice of |
1034 | sale, no notice is required to be given to any person claiming |
1035 | an interest in the timeshare interest except as provided in this |
1036 | section. The recording of the notice of sale has the same force |
1037 | and effect as the filing of a lis pendens in a judicial |
1038 | proceeding under s. 48.23. |
1039 | (d)1. The trustee shall publish the notice of sale in a |
1040 | newspaper of general circulation in the county or counties in |
1041 | which the timeshare interest is located at least once a week for |
1042 | two consecutive weeks before the date of the sale. The last |
1043 | publication shall occur at least 5 calendar days before the |
1044 | sale. |
1045 | 2. The trustee may group an unlimited number of notices of |
1046 | sale in the same publication, provided that all of the notices |
1047 | of 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 |
1050 | sale, the trustee shall execute and acknowledge a certificate of |
1051 | compliance and record it in the public records of the county or |
1052 | counties 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 |
1055 | sell and attach the affidavit required by subsection (5). |
1056 | 2. State that the default was not cured and the timeshare |
1057 | interest was not redeemed, and state that the trustee did not |
1058 | receive any written objection pursuant subsection (3). |
1059 | 3. State that the trustee is in possession of the original |
1060 | promissory note executed by the mortgagor and secured by the |
1061 | mortgage lien. |
1062 | 4. Confirm that the notice of sale was published as |
1063 | required under (6)(d) and attach an affidavit of publication for |
1064 | the notice of sale. |
1065 | 5. Confirm that the notice of sale was mailed pursuant to |
1066 | paragraph (6)(b) together with a list of the parties to whom the |
1067 | notice of sale was mailed. |
1068 | (c) In furtherance of the execution and recording of the |
1069 | certificate of compliance required under this subsection, the |
1070 | trustee is entitled to rely upon an affidavit or certification |
1071 | from the lienholder as to the facts and circumstances of default |
1072 | and failure to cure the default. |
1073 | (8) MANNER OF SALE.- |
1074 | (a) The sale of a timeshare interest by the trustee in a |
1075 | public auction shall be held in the county in which the |
1076 | timeshare interest is located, on the date, location, and |
1077 | starting time designated in the notice of sale, which shall be |
1078 | after 9:00 a.m. but before 4:00 p.m. on a business day not less |
1079 | than 30 calendar days after the recording of the notice of sale. |
1080 | The trustee's sale may occur online at a specific website on the |
1081 | Internet or in any other manner used by the clerk of the court |
1082 | for a judicial foreclosure sales procedure in the county or |
1083 | counties in which the timeshare interest is located. |
1084 | (b) The trustee shall conduct the sale and act as the |
1085 | auctioneer. |
1086 | (c) The lienholder and any person other than the trustee |
1087 | may bid at the sale. In lieu of participating in the sale, the |
1088 | lienholder may send the trustee written bidding instructions |
1089 | that the trustee shall announce as appropriate during the sale. |
1090 | (d) The trustee may postpone the sale from time to time. |
1091 | In such case, notice of postponement must be given by the |
1092 | trustee at the date, time, and location contained in the notice |
1093 | of sale. The notice of sale for the postponed sale shall be |
1094 | mailed pursuant to paragraph (6)(b), recorded pursuant to |
1095 | paragraph (4)(f), and published pursuant to paragraph (6)(d). |
1096 | The effective date of the initial notice of sale for purposes of |
1097 | paragraph (4)(b) is not affected by a postponed sale. |
1098 | (e) The highest bidder of the timeshare interest shall pay |
1099 | the price bid to the trustee in cash or certified funds on the |
1100 | day of the sale. If the lienholder is the highest bidder, the |
1101 | lienholder shall receive a credit up to the amount set forth in |
1102 | the notice of sale as required by subparagraph (6)(a)6. |
1103 | (f) On the date of the sale and upon receipt of the cash |
1104 | or certified funds due from the highest bidder, the trustee |
1105 | shall issue to the highest bidder a certificate of sale stating |
1106 | that a foreclosure conforming to the requirements of this |
1107 | section has occurred, including the time, location, and date of |
1108 | the sale, that the timeshare interest was sold, the amounts |
1109 | secured by the lien, and the amount of the highest bid. A copy |
1110 | of the certificate of sale shall be mailed by certified or |
1111 | registered mail, return receipt requested, or by a permitted |
1112 | delivery service, return receipt requested, to all persons |
1113 | entitled 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 |
1116 | terminates all interests of any person to whom notice is given |
1117 | under paragraph (4)(e) and paragraph (6)(b), and of any other |
1118 | person claiming by, through, or under any such person, in the |
1119 | affected timeshare interest. The mortgage lien does not merge |
1120 | into the trustee's deed to any extent that a subsequent judicial |
1121 | foreclosure or reforeclosure of the mortgage lien becomes |
1122 | necessary or required. A failure to give notice to any person |
1123 | entitled to notice does not affect the validity of the sale as |
1124 | to the interests of any person properly notified. A person |
1125 | entitled to notice but not given notice has the rights of a |
1126 | person not made a defendant in a judicial foreclosure. Any |
1127 | subsequent foreclosure required by failure to notify a party |
1128 | under paragraph (6)(b) may be conducted under this section. |
1129 | (b) A lienholder may conduct a subsequent foreclosure of a |
1130 | timeshare interest to correct any failure to meet the |
1131 | requirements of this section before the issuance of a |
1132 | certificate of sale under paragraph (8)(f). |
1133 | (c) On the issuance of a certificate of sale under |
1134 | paragraph (8)(f), all rights of redemption that have been |
1135 | foreclosed under this section shall terminate. |
1136 | (d) A sale conducted under subsection (8) extinguishes the |
1137 | lien and the obligor's liability for all amounts secured by the |
1138 | lien. The lienholder has no right to any deficiency judgment |
1139 | against the obligor after a sale of the obligor's timeshare |
1140 | interest under this section. |
1141 | (e) The issuance and recording of the trustee's deed is |
1142 | presumed valid and may be relied upon by third parties without |
1143 | actual knowledge of irregularities in the sale. |
1144 | (10) TRUSTEE'S DEED.- |
1145 | (a) The trustee's deed shall include the name and address |
1146 | of the trustee, the name and address of the highest bidder, the |
1147 | name of the former owner, a legal description of the timeshare |
1148 | interest, and the name and address of the preparer of the |
1149 | trustee's deed. The trustee's deed shall recite that the |
1150 | certificate of compliance was recorded, and shall contain no |
1151 | warranties of title from the trustee. |
1152 | (b) Ten calendar days after a sale, absent the prior |
1153 | filing and service on the trustee of a judicial action to enjoin |
1154 | issuance of the trustee's deed to the timeshare interest, the |
1155 | trustee shall: |
1156 | 1. Cancel the original promissory note executed by the |
1157 | mortgagor 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 |
1160 | county or counties in which the timeshare interest is located. |
1161 | (c)1. The certificate of compliance and trustee's deed |
1162 | together are presumptive evidence of the truth of the matters |
1163 | set forth in them, and no action to set aside the sale and void |
1164 | the trustee's deed may be filed or otherwise pursued against any |
1165 | person acquiring the timeshare interest for value, including any |
1166 | subsequent mortgagee or buyer. |
1167 | 2. The trustee's deed conveys to the highest bidder all |
1168 | rights, title, and interest in the timeshare interest that the |
1169 | former owner had, or had the power to convey, at the time of the |
1170 | execution of the mortgage, together with all rights, title, and |
1171 | interest that the former owner or his or her successors in |
1172 | interest acquired after the execution of the mortgage. |
1173 | 3. The issuance and recording of a trustee's deed shall |
1174 | have the same force and effect as the issuance and recording of |
1175 | a certificate of title by the clerk of the court in a judicial |
1176 | foreclosure action. |
1177 | (11) DISPOSITION OF PROCEEDS OF SALE.- |
1178 | (a) The trustee shall apply the proceeds of the sale as |
1179 | follows: |
1180 | 1. To the expenses of the sale, including compensation of |
1181 | the trustee. |
1182 | 2. To the amount owed and set forth in the notice as |
1183 | required in subparagraph (6)(a)6. |
1184 | 3. If there are junior interestholders, the trustee may |
1185 | file an action in interpleader, pay the surplus to a court of |
1186 | competent jurisdiction, name the competing junior |
1187 | interestholders, and ask the court to determine the proper |
1188 | distribution of the surplus. In any interpleader action, the |
1189 | trustee shall recover reasonable attorney's fees and costs. |
1190 | 4. If there are no junior interestholders, or if all |
1191 | junior interestholders have been paid, any surplus shall be paid |
1192 | to the former owner. If the trustee is unable to locate the |
1193 | former owner 1 year after the sale, the surplus, if any, shall |
1194 | be deposited with the Chief Financial Officer pursuant to |
1195 | chapter 717. |
1196 | (b) In disposing of the proceeds of the sale, the trustee |
1197 | may rely on the information provided in the affidavit of the |
1198 | lienholder under paragraph (2)(c) and, in the event of a dispute |
1199 | or uncertainty over such claims, the trustee has the discretion |
1200 | to submit the matter to adjudication by court, by interpleader, |
1201 | or otherwise and shall recover reasonable attorney's fees and |
1202 | costs. |
1203 | (12) JUDICIAL FORECLOSURE ACTIONS.-The nonjudicial |
1204 | foreclosure procedure established in this section does not |
1205 | impair or otherwise affect the lienholder's continuing right to |
1206 | bring a judicial foreclosure action, in lieu of using the |
1207 | nonjudicial foreclosure procedure, with respect to any mortgage |
1208 | lien. |
1209 | (13) ACTIONS FOR FAILURE TO FOLLOW THE NONJUDICIAL |
1210 | FORECLOSURE PROCEDURE.-An action for actual damages for a |
1211 | material violation of this section may be brought by an obligor |
1212 | against the lienholder for the failure to follow the nonjudicial |
1213 | foreclosure procedure contained in this section. |
1214 | Section 10. Subsection (1) of section 721.86, Florida |
1215 | Statutes, is amended to read: |
1216 | 721.86 Miscellaneous provisions.- |
1217 | (1) In the event of a conflict between the provisions of |
1218 | this part and the other provisions of this chapter, chapter 702, |
1219 | or other applicable law, the provisions of this part shall |
1220 | prevail The procedures in this part must be given effect in the |
1221 | context of any foreclosure proceedings against timeshare estates |
1222 | governed by this chapter, chapter 702, chapter 718, or chapter |
1223 | 719. |
1224 | Section 11. This act shall take effect upon becoming a |
1225 | law. |