CS/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 a
6judicial action or a trustee procedure to foreclose
7certain liens under specified conditions; revising when a
8lien is effective; renaming part III of chapter 721, F.S.,
9to conform to changes made by this act; amending s.
10721.81, F.S.; revising and providing legislative purposes
11of the part; amending s. 721.82 F.S.; revising and
12providing definitions; amending s. 721.83, F.S., relating
13to consolidation of foreclosure actions; clarifying
14application to judicial foreclosure actions; amending s.
15721.85, F.S., relating to service to notice address or on
16registered agent; conforming provisions to changes made by
17this act; creating s. 721.855, F.S.; establishing
18procedure for the trustee foreclosure of assessment liens;
19providing for the appointment of a trustee; providing
20recording requirements for such liens; providing
21procedures for the initiation of a trustee foreclosure
22procedure against a timeshare interest; providing
23procedures for an obligor's objection to the trustee
24foreclosure procedure; providing conditions to a trustee's
25exercise of power of sale; providing requirements for a
26notice of default and intent to sell; providing
27requirements for a notice of sale; providing requirements
28for the sale by auction of foreclosed encumbered timeshare
29interests; providing requirements for a trustee's
30certificate of compliance; providing for the effect of a
31trustee's sale; providing requirements for a trustee's
32deed; providing for the disposition of proceeds of the
33sale; providing that the trustee foreclosure procedure
34does not impair or otherwise affect the right to bring
35certain actions; providing application; providing for
36actions for failure to follow the trustee foreclosure
37procedure; creating s. 721.856, F.S.; establishing
38procedure for the trustee foreclosure of mortgage liens;
39providing for the appointment of a trustee; providing
40recording requirements for such liens; providing
41procedures for the initiation of a trustee foreclosure
42procedure against a timeshare interest; providing
43procedures for an obligor's objection to the trustee
44foreclosure procedure; providing conditions to a trustee's
45exercise of power of sale; providing requirements for a
46notice of default and intent to sell; providing
47requirements for a notice of sale; providing requirements
48for the sale by auction of foreclosed encumbered timeshare
49interests; providing requirements for a trustee's
50certificate of compliance; providing for the effect of a
51trustee's sale; providing requirements for a trustee's
52deed; providing for the disposition of proceeds of the
53sale; providing that the trustee foreclosure procedure
54does not impair or otherwise affect the right to bring
55certain actions; providing for actions for failure to
56follow the trustee foreclosure procedure; amending s.
57721.86, F.S.; providing for priority of application in
58case of conflict; conforming terminology to changes made
59by this act; amending s. 721.20, F.S.; revising exemptions
60from certain licensing requirements; providing an
61effective date.
62
63Be It Enacted by the Legislature of the State of Florida:
64
65     Section 1.  Paragraph (jj) is added to subsection (5) of
66section 721.07, Florida Statutes, to read:
67     721.07  Public offering statement.-Prior to offering any
68timeshare plan, the developer must submit a filed public
69offering statement to the division for approval as prescribed by
70s. 721.03, s. 721.55, or this section. Until the division
71approves such filing, any contract regarding the sale of that
72timeshare plan is subject to cancellation by the purchaser
73pursuant to s. 721.10.
74     (5)  Every filed public offering statement for a timeshare
75plan which is not a multisite timeshare plan shall contain the
76information required by this subsection. The division is
77authorized to provide by rule the method by which a developer
78must provide such information to the division.
79     (jj)  The following statement in conspicuous type:
80
81The managing entity has a lien against each timeshare
82interest to secure the payment of assessments, ad
83valorem assessments, tax assessments, and special
84assessments. Your failure to make any required
85payments may result in the judicial or trustee
86foreclosure of an assessment lien and the loss of your
87timeshare interest. If the managing entity initiates a
88trustee procedure, you shall have the option to object
89to the use of the trustee foreclosure procedure and
90the managing entity may only proceed by filing a
91judicial foreclosure action.
92
93     Section 2.  Subsections (2) and (3) of section 721.16,
94Florida Statutes, are amended to read:
95     721.16  Liens for overdue assessments; liens for labor
96performed on, or materials furnished to, a timeshare unit.-
97     (2)  The managing entity may bring a judicial an action in
98its name to foreclose a lien under subsection (1) in the manner
99a mortgage of real property is foreclosed and may also bring an
100action to recover a money judgment for the unpaid assessments
101without waiving any claim of lien. As an alternative to
102initiating a judicial action, the managing entity may initiate a
103trustee procedure to foreclose an assessment lien under s.
104721.855.
105     (3)  The lien is effective from the date of recording a
106claim of lien in the official public records of the county or
107counties in which the timeshare interest is accommodations and
108facilities constituting the timeshare plan are located. The
109claim of lien shall state the name of the timeshare plan and
110identify the timeshare interest for which the lien is effective,
111state the name of the purchaser, state the assessment amount
112due, and state the due dates. Notwithstanding any provision of
113s. 718.116(5)(a) or s. 719.108(4) to the contrary, the lien is
114effective until satisfied or until 5 years have expired after
115the date the claim of lien is recorded unless, within that time,
116an action to enforce the lien is commenced pursuant to
117subsection (2). A claim of lien for assessments may include only
118assessments which are due when the claim is recorded. A claim of
119lien shall be signed and acknowledged by an officer or agent of
120the managing entity. Upon full payment, the person making the
121payment is entitled to receive a satisfaction of the lien.
122     Section 3.  Part III of chapter 721, Florida Statutes,
123entitled "Foreclosure of Liens on Timeshare Estates," is renamed
124"Foreclosure of Liens on Timeshare Interests."
125     Section 4.  Section 721.81, Florida Statutes, is amended to
126read:
127     721.81  Legislative purpose.-The purposes of this part are
128to:
129     (1)  Recognize that timeshare interests estates are parcels
130of real property used for vacation experience rather than for
131homestead or investment purposes and that there are numerous
132timeshare interests estates in this the state.
133     (2)  Recognize that the economic health and efficient
134operation of the vacation ownership industry are in part
135dependent upon the availability of an efficient and economical
136process for all timeshare interest foreclosures foreclosure.
137     (3)  Recognize the need to assist both owners' associations
138and mortgagees by simplifying and expediting the process for the
139judicial and trustee of foreclosure of assessment liens and
140mortgage liens against timeshare interests estates.
141     (4)  Improve judicial economy and reduce court congestion
142and the cost to taxpayers by establishing streamlined procedures
143for the judicial and trustee foreclosure of assessment liens and
144mortgage liens against timeshare interests estates.
145     (5)  Recognize that nearly all timeshare interest
146foreclosures are uncontested.
147     (6)  Protect the ability of consumers who own timeshare
148interests located in this state to choose a judicial proceeding
149for the foreclosure of an assessment lien or a mortgage lien
150against their timeshare interest.
151     (7)  Recognize that the use of the trustee foreclosure
152procedure established under ss. 721.855 and 721.856 shall have
153the same force and effect as the use of the judicial foreclosure
154procedure against a timeshare interest with respect to the
155provisions of this chapter or any other applicable law. However,
156obligors shall not be subject to a deficiency judgment even if
157the proceeds from the sale of the timeshare interest are
158insufficient to offset the amounts secured by the lien.
159     Section 5.  Section 721.82, Florida Statutes, is amended to
160read:
161     721.82  Definitions.-As used in this part, the term:
162     (1)  "Amounts secured by the lien" means all amounts
163secured by an assessment lien or mortgage lien, including, but
164not limited to, all past due amounts, accrued interest, late
165fees, taxes, advances for the payment of taxes, insurance and
166maintenance of the timeshare interest, and any fees or costs
167incurred by the lienholder or trustee, including any reasonable
168attorney's fees, trustee's fees, and costs incurred in
169connection with the default.
170     (2)(1)  "Assessment lien" means:
171     (a)  A lien for delinquent assessments as provided in ss.
172721.16, 718.116, and 719.108, and 721.16 as to timeshare
173condominiums; or
174     (b)  A lien for unpaid ad valorem assessments, tax
175assessments, taxes and special assessments as provided in s.
176192.037(8).
177     (3)(2)  "Junior interestholder" means any person who has a
178lien or interest of record against a timeshare interest estate
179in the county or counties in which the timeshare interest estate
180is located, which is inferior to the mortgage lien or assessment
181lien being foreclosed under this part.
182     (4)(3)  "Lienholder" means a holder of an assessment lien
183or a holder of a mortgage lien, as applicable. A receiver
184appointed under s. 721.26 is a lienholder for purposes of
185foreclosure of assessment liens under this part.
186     (5)(4)  "Mortgage" has the same meaning set forth in s.
187697.01.
188     (6)(5)  "Mortgage lien" means a security interest in a
189timeshare interest estate created by a mortgage encumbering the
190timeshare interest estate.
191     (7)(6)  "Mortgagee" means a person holding a mortgage lien.
192     (8)(7)  "Mortgagor" means a person granting a mortgage lien
193or a person who has assumed the obligation secured by a mortgage
194lien.
195     (9)(8)  "Notice address" means:
196     (a)  As to an assessment lien, the address of the current
197owner of a timeshare interest estate as reflected by the books
198and records of the timeshare plan under ss. 721.13(4) and
199721.15(7).
200     (b)  As to a mortgage lien:
201     1.  The address of the mortgagor as set forth in the
202mortgage, the promissory note or a separate document executed by
203the mortgagor at the time the mortgage lien was created, or the
204most current address of the mortgagor according to the records
205of the mortgagee; and
206     2.  If the current owner of the timeshare interest estate
207is different from the mortgagor, the address of the current
208owner of the timeshare interest estate as reflected by the books
209and records of the mortgagee.
210     (c)  As to a junior interestholder, the address as set
211forth in the recorded instrument creating the junior lien
212interest or interest lien, or in any recorded amendment
213supplement thereto changing the address, or in any written
214notification by the junior interestholder to the foreclosing
215lienholder changing the of such change in address.
216     (10)(9)  "Obligor" means the mortgagor, the person subject
217to an assessment lien, or the record owner of the timeshare
218interest estate.
219     (11)  "Permitted delivery service" means any nationally
220recognized common carrier delivery service or international
221airmail service that allows for return receipt service.
222     (12)(10)  "Registered agent" means an agent duly appointed
223by the obligor under s. 721.84 for the purpose of accepting all
224notices and service of process under this part. A registered
225agent may be an individual resident in this state whose business
226office qualifies as a registered office, or a domestic or
227foreign corporation or a not-for-profit corporation as defined
228in chapter 617 authorized to transact business or to conduct its
229affairs in this state, whose business office qualifies as a
230registered office. A registered agent for any obligor may not be
231the lienholder or the attorney for the lienholder.
232     (13)(11)  "Registered office" means the street address of
233the business office of the registered agent appointed under s.
234721.84, located in this state.
235     (14)  "Trustee" means an attorney who is a member in good
236standing of The Florida Bar or that attorney's law firm, or a
237title insurer authorized to transact business in this state
238under s. 624.401, appointed as trustee or as substitute trustee
239in accordance with s. 721.855 or s. 721.856. A receiver
240appointed under s. 721.26 may act as a trustee under s. 721.855.
241A trustee must be independent as defined in s. 721.05(20).
242     Section 6.  Section 721.83, Florida Statutes, is amended to
243read:
244     721.83  Consolidation of judicial foreclosure actions.-
245     (1)  A complaint in a foreclosure proceeding involving
246timeshare interests estates may join in the same action multiple
247defendant obligors and junior interestholders of separate
248timeshare interests estates, provided:
249     (a)  The foreclosure proceeding involves a single timeshare
250property.
251     (b)  The foreclosure proceeding is filed by a single
252plaintiff.
253     (c)  The default and remedy provisions in the written
254instruments on which the foreclosure proceeding is based are
255substantially the same for each defendant.
256     (d)  The nature of the defaults alleged is the same for
257each defendant.
258     (e)  No more than 15 timeshare interests estates, without
259regard to the number of defendants, are joined within the same
260consolidated foreclosure action.
261     (2)  In any foreclosure proceeding involving multiple
262defendants filed under subsection (1), the court shall sever for
263separate trial any count of the complaint in which a defense or
264counterclaim is timely raised by a defendant.
265     (3)  A consolidated timeshare foreclosure action shall be
266considered a single action, suit, or proceeding for the payment
267of filing fees and service charges pursuant to general law. In
268addition to the payment of such filing fees and service charges,
269an additional filing fee of up to $10 for each timeshare
270interest estate joined in that action shall be paid to the clerk
271of court.
272     Section 7.  Section 721.85, Florida Statutes, is amended to
273read:
274     721.85  Service to notice address or on registered agent.-
275     (1)  Service of process for a foreclosure proceeding
276involving a timeshare interest estate may be made by any means
277recognized by law. In addition, substituted service on an
278obligor a party who has appointed a registered agent under s.
279721.84 may be made on such registered agent at the registered
280office. Also, when using s. 48.194 where in rem or quasi in rem
281relief only is sought, such service of process provisions are
282modified in connection with a foreclosure proceeding against a
283timeshare interest estate to provide that:
284     (a)  Such service of process may be made on any person
285whether the person is located inside or outside this state, by
286certified mail, or registered mail, or permitted delivery
287service, return receipt requested, addressed to the person to be
288served at the notice address, or on the person's party's
289registered agent duly appointed under s. 721.84, at the
290registered office; and
291     (b)  Service shall be considered obtained upon the signing
292of the return receipt by any person at the notice address, or by
293the registered agent.
294     (2)  The current owner and the mortgagor of a timeshare
295interest estate must promptly notify the owners' association and
296the mortgagee of any change of address.
297     (3)  Substituted notice under s. 721.855 or s. 721.856 for
298any party who has appointed a registered agent under s. 721.84
299may be made on such registered agent at the registered office.
300     Section 8.  Section 721.855, Florida Statutes, is created
301to read:
302     721.855  Procedure for the trustee foreclosure of
303assessment liens.-The provisions of this section establish a
304trustee foreclosure procedure for assessment liens.
305     (1)  APPOINTMENT OF TRUSTEE.-
306     (a)  A trustee or a substitute trustee may be appointed by
307a lienholder at any time by recording a notice of appointment of
308trustee or notice of substitution of trustee in the official
309records of the county or counties in which the timeshare
310interest is located. A lienholder may appoint multiple trustees
311in a single appointment, and any appointed trustee may be used
312by the lienholder regarding the trustee foreclosure of any
313assessment lien under any timeshare plan for which the trustee
314is appointed.
315     (b)  The recorded notice of appointment of trustee or
316notice of substitution of trustee shall contain the name and
317address of the trustee or substitute trustee, the name and
318address of the lienholder, and the name and address of the
319timeshare plan.
320     (2)  INITIATING THE USE OF A TRUSTEE FORECLOSURE
321PROCEDURE.-
322     (a)  Before initiating the trustee foreclosure procedure
323against any timeshare interest in a given timeshare plan, the
324managing entity shall inform owners of timeshare interests in
325the timeshare plan in writing that the managing entity has the
326right to elect to use the trustee foreclosure procedure with
327respect to foreclosure of assessment liens as established in
328this section. The managing entity shall be deemed to have
329complied with the requirements of this paragraph if the owners
330of timeshare interests in the given timeshare plan are informed
331by mail sent to each owner's notice address, in the notice of an
332annual or special meeting of the owners, by posting on the
333website of the applicable timeshare plan, or by any owner
334communication used by the managing entity.
335     (b)  Before initiating the trustee foreclosure procedure
336against any timeshare interest, a claim of lien against the
337timeshare interest shall be recorded under s. 721.16 or, if
338applicable, s. 718.116 or s. 719.108, and the notice of the
339intent to file a lien shall be given under s. 718.121 for
340timeshare condominiums and s. 719.108 for timeshare
341cooperatives.
342     (c)1.  In order to initiate a trustee foreclosure procedure
343against a timeshare interest, the lienholder shall deliver an
344affidavit to the trustee that identifies the obligor; the notice
345address of the obligor; the timeshare interest; the date that
346the notice of the intent to file a lien was given, if
347applicable; the official records book and page number where the
348claim of lien is recorded; and the name and notice address of
349any junior interestholder. The affidavit shall be accompanied by
350a title search of the timeshare interest identifying any junior
351interestholders of record, and the effective date of the title
352search must be within 60 calendar days before the date of the
353affidavit.
354     2.  The affidavit shall also state the facts that establish
355that the obligor has defaulted in the obligation to make a
356payment under a specified provision of the timeshare instrument
357or applicable law.
358     3.  The affidavit shall also specify the amounts secured by
359the lien as of the date of the affidavit and a per diem amount
360to account for further accrual of the amounts secured by the
361lien.
362     (3)  OBLIGOR'S RIGHTS.-
363     (a)  The obligor may object to the lienholder's use of the
364trustee foreclosure procedure for a specific default any time
365before the sale of the timeshare interest under subsection (7)
366by delivering a written objection to the trustee using the
367objection form provided for in subsection (5). If the trustee
368receives the written objection from the obligor, the trustee may
369not proceed with the trustee foreclosure procedure as to the
370default specified in the notice of default and intent to
371foreclose under subsection (5), and the lienholder may proceed
372thereafter only with a judicial foreclosure action as to that
373specified default.
374     (b)  At any time before the trustee issues the certificate
375of sale under paragraph (7)(f), the obligor may cure the default
376and redeem the timeshare interest by paying the amounts secured
377by the lien in cash or certified funds to the trustee. After the
378trustee issues the certificate of sale, there is no right of
379redemption.
380     (4)  CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A
381trustee may sell an encumbered timeshare interest foreclosed
382under this section if:
383     (a)  The trustee has received the affidavit from the
384lienholder under paragraph (2)(c);
385     (b)  The trustee has not received a written objection to
386the use of the trustee foreclosure procedure under paragraph
387(3)(a) and the timeshare interest was not redeemed under
388paragraph (3)(b);
389     (c)  There is no lis pendens recorded and pending against
390the same timeshare interest and the trustee has not been served
391notice of the filing of any action to enjoin the trustee
392foreclosure sale;
393     (d)  The trustee has provided written notice of default and
394intent to foreclose as required under subsection (5) and a
395period of at least 30 calendar days has elapsed after such
396notice is deemed perfected under subsection (5); and
397     (e)  The notice of sale required under subsection (6) has
398been recorded in the official records of the county or counties
399in which the timeshare interest is located.
400     (5)  NOTICE OF DEFAULT AND INTENT TO FORECLOSE.-
401     (a)  In any foreclosure proceeding under this section, the
402trustee is required to notify the obligor of the proceeding by
403sending the obligor a written notice of default and intent to
404foreclose to the notice address of the obligor by certified
405mail, registered mail, or permitted delivery service, return
406receipt requested, and by first-class mail or permitted delivery
407service, postage prepaid, as follows:
408     1.  The notice of default and intent to foreclose shall
409identify the obligor, the notice address of the obligor, the
410legal description of the timeshare interest, the nature of the
411default, the amounts secured by the lien, and a per diem amount
412to account for further accrual of the amounts secured by the
413lien and shall state the method by which the obligor may cure
414the default, including the period of time after the date of the
415notice of default and intent to foreclose within which the
416obligor may cure the default.
417     2.  The notice of default and intent to foreclose shall
418include an objection form with which the obligor can object to
419the use of the trustee foreclosure procedure by signing and
420returning the objection form to the trustee. The objection form
421shall identify the obligor, the notice address of the obligor,
422the timeshare interest, and the return address of the trustee
423and shall state: "The undersigned obligor exercises the
424obligor's right to object to the use of the trustee foreclosure
425procedure contained in section 721.855, Florida Statutes."
426     3.  The notice of default and intent to foreclose shall
427also contain a statement in substantially the following form:
428
429If you fail to cure the default as set forth in this
430notice or take other appropriate action with regard to
431this foreclosure matter, you risk losing ownership of
432your timeshare interest through the trustee
433foreclosure procedure established in section 721.855,
434Florida Statutes. You may choose to sign and send to
435the trustee the enclosed objection form, exercising
436your right to object to the use of the trustee
437foreclosure procedure. Upon the trustee's receipt of
438your signed objection form, the foreclosure of the
439lien with respect to the default specified in this
440notice shall be subject to the judicial foreclosure
441procedure only. You have the right to cure your
442default in the manner set forth in this notice at any
443time before the trustee's sale of your timeshare
444interest. If you do not object to the use of the
445trustee foreclosure procedure, you will not be subject
446to a deficiency judgment even if the proceeds from the
447sale of your timeshare interest are insufficient to
448offset the amounts secured by the lien.
449
450     4.  The trustee shall also mail a copy of the notice of
451default and intent to foreclose, without the objection form, to
452the notice address of any junior interestholder by certified
453mail, registered mail, or permitted delivery service, return
454receipt requested, and by first-class mail or permitted delivery
455service, postage prepaid.
456     5.  Notice under this paragraph is considered perfected
457upon the trustee receiving the return receipt bearing the
458signature of the obligor or junior interestholder, as
459applicable, within 30 calendar days after the trustee sent the
460notice under this paragraph. Notice under this paragraph is not
461perfected if the notice is returned as undeliverable within 30
462calendar days after the trustee sent the notice, if the trustee
463cannot ascertain from the receipt that the obligor or junior
464interestholder, as applicable, is the person who signed the
465receipt, or if the receipt from the obligor or junior
466interestholder, as applicable, is returned or refused within 30
467calendar days after the trustee sent the notice.
468     (b)  If the notice required by paragraph (a) is returned as
469undeliverable within 30 calendar days after the trustee sent the
470notice, the trustee shall perform a diligent search and inquiry
471to obtain a different address for the obligor or junior
472interestholder. For purposes of this paragraph, any address
473known and used by the lienholder for sending regular mailings or
474other communications from the lienholder to the obligor or
475junior interestholder, as applicable, shall be included with
476other addresses produced from the diligent search and inquiry,
477if any.
478     1.  If the trustee's diligent search and inquiry produces
479an address different from the notice address, the trustee shall
480mail a copy of the notice by certified mail, registered mail, or
481permitted delivery service, return receipt requested, and by
482first-class mail or permitted delivery service, postage prepaid,
483to the new address. Notice under this subparagraph is considered
484perfected upon the trustee receiving the return receipt bearing
485the signature of the obligor or junior interestholder, as
486applicable, within 30 calendar days after the trustee sent the
487notice under this subparagraph. Notice under this subparagraph
488is not perfected if the trustee cannot ascertain from the
489receipt that the obligor or junior interestholder, as
490applicable, is the person who signed the receipt or the receipt
491from the obligor or junior interestholder, as applicable, is
492returned refused. If the trustee does not perfect notice under
493this subparagraph, the trustee shall perfect service in the
494manner set forth in paragraph (c).
495     2.  If the trustee's diligent search and inquiry does not
496locate a different address for the obligor or junior
497interestholder, as applicable, the trustee may perfect notice
498against that person under paragraph (c).
499     (c)  If the notice is not perfected under subparagraph
500(a)5., and such notice was not returned as undeliverable, or if
501the notice was not perfected under subparagraph (b)1. or
502subparagraph (b)2., the trustee may perfect notice by
503publication in a newspaper of general circulation in the county
504or counties in which the timeshare interest is located. The
505notice shall appear at least once a week for 2 consecutive
506weeks. The trustee may group an unlimited number of notices in
507the same publication, if all of the notices pertain to the same
508timeshare plan. Notice under this paragraph is considered
509perfected upon publication as required in this paragraph.
510     (d)  If notice is perfected under subparagraph (a)5., the
511trustee shall execute an affidavit in recordable form setting
512forth the manner in which notice was perfected and attach the
513affidavit to the certificate of compliance set forth in
514subsection (9). The affidavit shall state the nature of the
515notice, the date on which the notice was mailed, the name and
516address on the envelope containing the notice, the manner in
517which the notice was mailed, and the basis for that knowledge.
518     (e)  If notice is perfected under subparagraph (b)1., the
519trustee shall execute an affidavit in recordable form setting
520forth the manner in which notice was perfected and attach the
521affidavit to the certificate of compliance set forth in
522subsection (9). The affidavit shall state the nature of the
523notice, the dates on which the notice was mailed, the name and
524addresses on the envelopes containing the notice, the manner in
525which the notices were mailed, the fact that a signed receipt
526from the certified mail, registered mail, or permitted delivery
527service was not timely received, and the name and address on the
528envelopes containing the notice.
529     (f)  If notice is perfected by publication under paragraph
530(c), the trustee shall execute an affidavit in recordable form
531setting forth the manner in which notice was perfected and
532attach the affidavit to the certificate of compliance set forth
533in subsection (9). The affidavit shall include all the
534information contained in either paragraph (d) or paragraph (e),
535as applicable, shall state that the notice was perfected by
536publication after diligent search and inquiry was made for the
537current address for the person, and shall include a statement
538that notice was perfected by publication, and shall set forth
539the information required by s. 49.041 in the case of a natural
540person or s. 49.051 in the case of a corporation, whichever is
541applicable. No other action of the trustee is necessary to
542perfect notice.
543     (6)  NOTICE OF SALE.-
544     (a)  The notice of sale shall set forth:
545     1.  The name and notice addresses of the obligor and any
546junior interestholder.
547     2.  The legal description of the timeshare interest.
548     3.  The name and address of the trustee.
549     4.  A description of the default that is the basis for the
550foreclosure.
551     5.  The official records book and page numbers where the
552claim of lien is recorded.
553     6.  The amounts secured by the lien and a per diem amount
554to account for further accrual of the amounts secured by the
555lien.
556     7.  The date, location, and starting time of the trustee's
557sale.
558     8.  The right of and the method by which the obligor may
559cure the default or the right of any junior interestholder to
560redeem its interest up to the date the trustee issues the
561certificate of sale in accordance with paragraph (7)(f).
562     (b)  The trustee shall send a copy of the notice of sale
563within 3 business days after the date it is submitted for
564recording, by first-class mail or permitted delivery service,
565postage prepaid, to the notice addresses of the obligor and any
566junior interestholder.
567     (c)  After the date of recording of the notice of sale,
568notice is not required to be given to any person claiming an
569interest in the timeshare interest except as provided in this
570section. The recording of the notice of sale has the same force
571and effect as the filing of a lis pendens in a judicial
572proceeding under s. 48.23.
573     (d)1.  The trustee shall publish the notice of sale in a
574newspaper of general circulation in the county or counties in
575which the timeshare interest is located at least once a week for
5762 consecutive weeks before the date of the sale. The last
577publication shall occur at least 5 calendar days before the
578sale.
579     2.  The trustee may group an unlimited number of notices of
580sale in the same publication, if all of the notices of sale
581pertain to the same timeshare plan.
582     (7)  MANNER OF SALE.-
583     (a)  The sale of a timeshare interest by the trustee in a
584public auction shall be held in the county in which the
585timeshare interest is located, on the date, location, and
586starting time designated in the notice of sale, which shall be
587after 9:00 a.m. but before 4:00 p.m. on a business day not less
588than 30 calendar days after the recording of the notice of sale.
589The trustee's sale may occur online at a specific website on the
590Internet or in any other manner used by the clerk of the court
591for a judicial foreclosure sales procedure in the county or
592counties in which the timeshare interest is located.
593     (b)  The trustee shall conduct the sale and act as the
594auctioneer.
595     (c)  The lienholder and any person other than the trustee
596may bid at the sale. In lieu of participating in the sale, the
597lienholder may send the trustee written bidding instructions
598that the trustee shall announce as appropriate during the sale.
599     (d)  The trustee may postpone the sale from time to time.
600In such case, notice of postponement must be given by the
601trustee at the date, time, and location contained in the notice
602of sale. The notice of sale for the postponed sale shall be
603mailed under paragraph (6)(b), recorded under paragraph (4)(e),
604and published under paragraph (6)(d). The effective date of the
605initial notice of sale under paragraph (6)(b) is not affected by
606a postponed sale.
607     (e)  The highest bidder of the timeshare interest shall pay
608the price bid to the trustee in cash or certified funds on the
609day of the sale. If the lienholder is the highest bidder, the
610lienholder shall receive a credit up to the amount set forth in
611the notice of sale as required under subparagraph (6)(a)6.
612     (f)  On the date of the sale and upon receipt of the cash
613or certified funds due from the highest bidder, the trustee
614shall issue to the highest bidder a certificate of sale stating
615that a foreclosure conforming to the requirements of this
616section has occurred, including the time, location, and date of
617the sale, that the timeshare interest was sold, the amounts
618secured by the lien, and the amount of the highest bid. A copy
619of the certificate of sale shall be mailed by certified mail,
620registered mail, or permitted delivery service, return receipt
621requested, to all persons entitled to receive a notice of sale
622under subsection (6).
623     (g)  Before a sale conducted under this subsection, a
624junior interestholder may pursue adjudication by court, by
625interpleader, or in any other authorized manner respecting any
626matter that is disputed by the junior interestholder.
627     (8)  EFFECT OF TRUSTEE'S SALE.-
628     (a)  A sale conducted under subsection (7) forecloses and
629terminates all interests of any person to whom notice is given
630under paragraph (4)(d) and paragraph (6)(b), and of any other
631person claiming interests by, through, or under any such person,
632in the affected timeshare interest. A failure to give notice to
633any person entitled to notice does not affect the validity of
634the sale as to the interests of any person properly notified. A
635person entitled to notice but not given notice has the rights of
636a person not made a defendant in a judicial foreclosure.
637     (b)  On the issuance of a certificate of sale under
638paragraph (7)(f), all rights of redemption that have been
639foreclosed under this section shall terminate.
640     (c)  A sale conducted under subsection (7) releases the
641obligor's liability for all amounts secured by the lien. The
642lienholder has no right to any deficiency judgment against the
643obligor after a sale of the obligor's timeshare interest under
644this section.
645     (d)  The issuance and recording of the trustee's deed is
646presumed valid and may be relied upon by third parties without
647actual knowledge of irregularities in the foreclosure
648proceedings. If for any reason there is an irregularity in the
649foreclosure proceedings, a purchaser becomes subrogated to all
650the rights of the lienholder to the indebtedness that it secured
651to the extent necessary to reforeclose the assessment lien in
652order to correct the irregularity and becomes entitled to an
653action de novo for the foreclosure of such assessment lien. Any
654subsequent reforeclosure required to correct an irregularity may
655be conducted under this section.
656     (9)  TRUSTEE'S CERTIFICATE OF COMPLIANCE.-
657     (a)  Within 10 calendar days after the trustee conducts a
658sale, the trustee shall execute and acknowledge a certificate of
659compliance that:
660     1.  Confirms delivery of the notice of default and intent
661to foreclose and attaches the affidavit required under
662subsection (5).
663     2.  States that the default was not cured, that the trustee
664did not receive any written objection under paragraph (3)(a),
665and that the timeshare interest was not redeemed under paragraph
666(3)(b).
667     3.  Confirms that the notice of sale was published as
668required under paragraph (6)(d) and attaches an affidavit of
669publication for the notice of sale.
670     4.  Confirms that the notice of sale was mailed under
671paragraph (6)(b) together with a list of the parties to whom the
672notice of sale was mailed.
673     (b)  In furtherance of the execution of the certificate of
674compliance required under this subsection, the trustee is
675entitled to rely upon an affidavit or certification from the
676lienholder as to the facts and circumstances of default and
677failure to cure the default.
678     (10)  TRUSTEE'S DEED.-
679     (a)  The trustee's deed shall include the name and address
680of the trustee, the name and address of the highest bidder, the
681name of the former owner, a legal description of the timeshare
682interest, and the name and address of the preparer of the
683trustee's deed. The trustee's deed shall recite that the
684certificate of compliance was recorded and shall contain no
685warranties of title from the trustee. The certificate of
686compliance shall be attached as an exhibit to the trustee's
687deed.
688     (b)  Ten calendar days after a sale, absent the prior
689filing and service on the trustee of a judicial action to enjoin
690issuance of the trustee's deed to the timeshare interest, the
691trustee shall:
692     1.  Issue a trustee's deed to the highest bidder.
693     2.  Record the trustee's deed in the official records of
694the county or counties in which the timeshare interest is
695located.
696     (c)1.  The certificate of compliance and trustee's deed
697together are presumptive evidence of the truth of the matters
698set forth in them, and an action to set aside the sale and void
699the trustee's deed may not be filed or otherwise pursued against
700any person acquiring the timeshare interest for value.
701     2.  The trustee's deed conveys to the highest bidder all
702rights, title, and interest in the timeshare interest that the
703former owner had, or had the power to convey, at the time of the
704recording of the claim of lien, together with all rights, title,
705and interest that the former owner or his or her successors in
706interest acquired after the recording of the claim of lien.
707     3.  The issuance and recording of a trustee's deed shall
708have the same force and effect as the issuance and recording of
709a certificate of title by the clerk of the court in a judicial
710foreclosure action.
711     (11)  DISPOSITION OF PROCEEDS OF SALE.-
712     (a)  The trustee shall apply the proceeds of the sale as
713follows:
714     1.  To the expenses of the sale, including compensation of
715the trustee.
716     2.  To the amount owed and set forth in the notice as
717required in subparagraph (6)(a)6.
718     3.  If there are junior interestholders, the trustee may
719file an action in interpleader, pay the surplus to a court of
720competent jurisdiction, name the competing junior
721interestholders, and ask the court to determine the proper
722distribution of the surplus. In any interpleader action, the
723trustee shall recover reasonable attorney's fees and costs.
724     4.  If there are no junior interestholders, or if all
725junior interestholders have been paid, any surplus shall be paid
726to the former owner. If the trustee is unable to locate the
727former owner 1 year after the sale, the surplus, if any, shall
728be deposited with the Chief Financial Officer under chapter 717.
729     (b)  In disposing of the proceeds of the sale, the trustee
730may rely on the information provided in the affidavit of the
731lienholder under paragraph (2)(c) and, in the event of a dispute
732or uncertainty over such claims, the trustee has the discretion
733to submit the matter to adjudication by court, by interpleader,
734or in any other authorized manner and shall recover reasonable
735attorney's fees and costs.
736     (12)  TRUSTEE FORECLOSURE ACTIONS.-The trustee foreclosure
737procedure established in this section does not impair or
738otherwise affect the lienholder's continuing right to bring a
739judicial foreclosure action, in lieu of using the trustee
740foreclosure procedure, with respect to any assessment lien.
741     (13)  APPLICATION.-This section applies to any default
742giving rise to the imposition of an assessment lien which occurs
743after the effective date of this section. An amendment to a
744timeshare instrument is not required to permit a managing entity
745lienholder to use the trustee foreclosure procedures of this
746section. If a timeshare instrument contains any provision that
747prevents the use of the trustee foreclosure procedures, an
748amendment to the timeshare instrument permitting the use of the
749trustee foreclosure procedure set forth in this section may be
750adopted by a majority of those present and voting at a duly
751called meeting of the owners' association at which at least 15
752percent of the voting interests are present in person or by
753proxy.
754     (14)  ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
755PROCEDURE.-An action for actual damages for a material violation
756of this section may be brought by an obligor against the
757lienholder for the failure to follow the trustee foreclosure
758procedure contained in this section.
759     Section 9.  Section 721.856, Florida Statutes, is created
760to read:
761     721.856  Procedure for the trustee foreclosure of mortgage
762liens.-The provisions of this section establish a trustee
763foreclosure procedure for mortgage liens.
764     (1)  APPOINTMENT OF TRUSTEE.-
765     (a)  A trustee or a substitute trustee may be appointed by
766a lienholder at any time by recording a notice of appointment of
767trustee or notice of substitution of trustee in the official
768records of the county or counties in which the timeshare
769interest is located. A lienholder may appoint multiple trustees
770in a single appointment, and any appointed trustee may be used
771by the lienholder regarding the trustee foreclosure of any
772mortgage lien.
773     (b)  The recorded notice of appointment of trustee or
774notice of substitution of trustee shall contain the name and
775address of the trustee or substitute trustee, the name and
776address of the lienholder, and the name and address of the
777timeshare plan.
778     (2)  INITIATING THE TRUSTEE FORECLOSURE OF MORTGAGE LIENS.-
779     (a)  Before initiating the trustee foreclosure against a
780timeshare interest, the mortgage, or an amendment to a mortgage
781executed by the obligor before the effective date of this
782section, must contain a statement in substantially the following
783form:
784
785If the mortgagor fails to make timely payments under
786the obligation secured by this mortgage, or is
787otherwise deemed in uncured default of this mortgage,
788the lien against the mortgagor's timeshare interest
789created by this mortgage may be foreclosed in
790accordance with either a judicial foreclosure
791procedure or a trustee foreclosure procedure and may
792result in the loss of your timeshare interest. If the
793mortgagee initiates a trustee foreclosure procedure,
794the mortgagor shall have the option to object and the
795mortgagee may proceed only by filing a judicial
796foreclosure action.
797
798     (b)1.  In order to initiate a trustee foreclosure procedure
799against a timeshare interest, the lienholder shall deliver an
800affidavit to the trustee that identifies the obligor, the notice
801address of the obligor, the timeshare interest, the official
802records book and page number where the mortgage is recorded, and
803the name and notice address of any junior interestholder. The
804affidavit shall be accompanied by a title search of the
805timeshare interest identifying any junior interestholders of
806record, and the effective date of the title search must be
807within 60 calendar days before the date of the affidavit.
808     2.  The affidavit shall also state the facts that establish
809that the obligor has defaulted in the obligation to make a
810payment under a specified provision of the mortgage or is
811otherwise deemed in uncured default under a specified provision
812of the mortgage.
813     3.  The affidavit shall also specify the amounts secured by
814the lien as of the date of the affidavit and a per diem amount
815to account for further accrual of the amounts secured by the
816lien.
817     (3)  OBLIGOR'S RIGHTS.-
818     (a)  The obligor may object to the lienholder's use of the
819trustee foreclosure procedure for a specific default any time
820before the sale of the timeshare interest under subsection (7)
821by delivering a written objection to the trustee using the
822objection form provided for in subsection (5). If the trustee
823receives the written objection from the obligor, the trustee may
824not proceed with the trustee foreclosure procedure as to the
825default specified in the notice of default and intent to
826foreclose under subsection (5), and the lienholder may proceed
827thereafter only with a judicial foreclosure action as to that
828specified default.
829     (b)  At any time before the trustee issues the certificate
830of sale under paragraph (7)(f), the obligor may cure the default
831and redeem the timeshare interest by paying the amounts secured
832by the lien in cash or certified funds to the trustee. After the
833trustee issues the certificate of sale, there is no right of
834redemption.
835     (4)  CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A
836trustee may sell an encumbered timeshare interest foreclosed
837under this section if:
838     (a)  The trustee has received the affidavit from the
839lienholder under paragraph (2)(c);
840     (b)  The trustee has not received a written objection to
841the use of the trustee foreclosure procedure under paragraph
842(3)(a) and the timeshare interest was not redeemed under
843paragraph (3)(b);
844     (c)  There is no lis pendens recorded and pending against
845the same timeshare interest, and the trustee has not been served
846notice of the filing of any action to enjoin the trustee
847foreclosure sale;
848     (d)  The trustee is in possession of the original
849promissory note executed by the mortgagor and secured by the
850mortgage lien;
851     (e)  The trustee has provided written notice of default and
852intent to foreclose as required under subsection (5) and a
853period of at least 30 calendar days has elapsed after such
854notice is deemed perfected under subsection (5); and
855     (f)  The notice of sale required under subsection (6) has
856been recorded in the official records of the county in which the
857mortgage was recorded.
858     (5)  NOTICE OF DEFAULT AND INTENT TO FORECLOSE.-
859     (a)  In any foreclosure proceeding under this section, the
860trustee is required to notify the obligor of the proceeding by
861sending the obligor a written notice of default and intent to
862foreclose to the notice address of the obligor by certified
863mail, registered mail, or permitted delivery service, return
864receipt requested, and by first-class mail or permitted delivery
865service, postage prepaid, as follows:
866     1.  The notice of default and intent to foreclose shall
867identify the obligor, the notice address of the obligor, the
868legal description of the timeshare interest, the nature of the
869default, the amounts secured by the lien, and a per diem amount
870to account for further accrual of the amounts secured by the
871lien and shall state the method by which the obligor may cure
872the default, including the period of time after the date of the
873notice of default and intent to foreclose within which the
874obligor may cure the default.
875     2.  The notice of default and intent to foreclose shall
876include an objection form with which the obligor can object to
877the use of the trustee foreclosure procedure by signing and
878returning the objection form to the trustee. The objection form
879shall identify the obligor, the notice address of the obligor,
880the timeshare interest, and the return address of the trustee
881and shall state: "The undersigned obligor exercises the
882obligor's right to object to the use of the trustee foreclosure
883procedure contained in section 721.856, Florida Statutes."
884     3.  The notice of default and intent to foreclose shall
885also contain a statement in substantially the following form:
886
887If you fail to cure the default as set forth in this
888notice or take other appropriate action with regard to
889this foreclosure matter, you risk losing ownership of
890your timeshare interest through the trustee
891foreclosure procedure established in section 721.856,
892Florida Statutes. You may choose to sign and send to
893the trustee the enclosed objection form, exercising
894your right to object to the use of the trustee
895foreclosure procedure. Upon the trustee's receipt of
896your signed objection form, the foreclosure of the
897lien with respect to the default specified in this
898notice shall be subject to the judicial foreclosure
899procedure only. You have the right to cure your
900default in the manner set forth in this notice at any
901time before the trustee's sale of your timeshare
902interest. If you do not object to the use of the
903trustee foreclosure procedure, you will not be subject
904to a deficiency judgment even if the proceeds from the
905sale of your timeshare interest are insufficient to
906offset the amounts secured by the lien.
907
908     4.  The trustee shall also mail a copy of the notice of
909default and intent to foreclose, without the objection form, to
910the notice address of any junior interestholder by certified
911mail, registered mail, or permitted delivery service, return
912receipt requested, and by first-class mail or permitted delivery
913service, postage prepaid.
914     5.  Notice under this paragraph is considered perfected
915upon the trustee receiving the return receipt bearing the
916signature of the obligor or junior interestholder, as
917applicable, within 30 calendar days after the trustee sent the
918notice under this paragraph. Notice under this paragraph is not
919perfected if the notice is returned as undeliverable within 30
920calendar days after the trustee sent the notice, if the trustee
921cannot ascertain from the receipt that the obligor or junior
922interestholder, as applicable, is the person who signed the
923receipt, or if the receipt from the obligor or junior
924interestholder, as applicable, is returned or refused within 30
925calendar days after the trustee sent the notice.
926     (b)  If the notice required by paragraph (a) is returned as
927undeliverable within 30 calendar days after the trustee sent the
928notice, the trustee shall perform a diligent search and inquiry
929to obtain a different address for the obligor or junior
930interestholder. For purposes of this paragraph, any address
931known and used by the lienholder for sending regular mailings or
932other communications from the lienholder to the obligor or
933junior interestholder, as applicable, shall be included with
934other addresses produced from the diligent search and inquiry,
935if any.
936     1.  If the trustee's diligent search and inquiry produces
937an address different from the notice address, the trustee shall
938mail a copy of the notice by certified mail, registered mail, or
939permitted delivery service, return receipt requested, and by
940first-class mail or permitted delivery service, postage prepaid,
941to the new address. Notice under this subparagraph is considered
942perfected upon the trustee receiving the return receipt bearing
943the signature of the obligor or junior interestholder, as
944applicable, within 30 calendar days after the trustee sent the
945notice under this subparagraph. Notice under this subparagraph
946is not perfected if the trustee cannot ascertain from the
947receipt that the obligor or junior interestholder, as
948applicable, is the person who signed the receipt or the receipt
949from the obligor or junior interestholder, as applicable, is
950returned refused. If the trustee does not perfect notice under
951this subparagraph, the trustee shall perfect service in the
952manner set forth in paragraph (c).
953     2.  If the trustee's diligent search and inquiry does not
954locate a different address for the obligor or junior
955interestholder, as applicable, the trustee may perfect notice
956against that person under paragraph (c).
957     (c)  If the notice is not perfected under subparagraph
958(a)5., and such notice was not returned as undeliverable, or if
959the notice was not perfected under subparagraph (b)1. or
960subparagraph (b)2., the trustee may perfect notice by
961publication in a newspaper of general circulation in the county
962or counties in which the timeshare interest is located. The
963notice shall appear at least once a week for 2 consecutive
964weeks. The trustee may group an unlimited number of notices in
965the same publication, if all of the notices pertain to the same
966timeshare plan. Notice under this paragraph is considered
967perfected upon publication as required in this paragraph.
968     (d)  If notice is perfected under subparagraph (a)5., the
969trustee shall execute an affidavit in recordable form setting
970forth the manner in which notice was perfected and attach the
971affidavit to the certificate of compliance set forth in
972subsection (9). The affidavit shall state the nature of the
973notice, the date on which the notice was mailed, the name and
974address on the envelope containing the notice, the manner in
975which the notice was mailed, and the basis for that knowledge.
976     (e)  If notice is perfected under subparagraph (b)1., the
977trustee shall execute an affidavit in recordable form setting
978forth the manner in which notice was perfected and attach the
979affidavit to the certificate of compliance set forth in
980subsection (9). The affidavit shall state the nature of the
981notice, the dates on which the notice was mailed, the name and
982addresses on the envelopes containing the notice, the manner in
983which the notice was mailed, the fact that a signed receipt from
984the certified mail, registered mail, or permitted delivery
985service was not timely received, and the name and address on the
986envelopes containing the notice.
987     (f)  If notice is perfected under paragraph (c), the
988trustee shall execute an affidavit in recordable form setting
989forth the manner in which notice was perfected and attach the
990affidavit to the certificate of compliance set forth in
991subsection (9). The affidavit shall include all the information
992contained in either paragraph (d) or paragraph (e), as
993applicable, shall state that the notice was perfected by
994publication after diligent search and inquiry was made for the
995current address for the person, shall include a statement that
996notice was perfected by publication, and shall set forth the
997information required by s. 49.041 in the case of a natural
998person or s. 49.051 in the case of a corporation, whichever is
999applicable. No other action of the trustee is necessary to
1000perfect notice.
1001     (6)  NOTICE OF SALE.-
1002     (a)  The notice of sale shall set forth:
1003     1.  The name and notice addresses of the obligor and any
1004junior interestholder.
1005     2.  The legal description of the timeshare interest.
1006     3.  The name and address of the trustee.
1007     4.  A description of the default that is the basis for the
1008foreclosure.
1009     5.  The official records book and page numbers where the
1010mortgage is recorded.
1011     6.  The amounts secured by the lien and a per diem amount
1012to account for further accrual of the amounts secured by the
1013lien.
1014     7.  The date, location, and starting time of the trustee's
1015sale.
1016     8.  The right of and the method by which the obligor may
1017cure the default or the right of any junior interestholder to
1018redeem its interest up to the date the trustee issues the
1019certificate of sale in accordance with paragraph (7)(f).
1020     (b)  The trustee shall send a copy of the notice of sale
1021within 3 business days after the date it is submitted for
1022recording, by first-class mail or permitted delivery service,
1023postage prepaid, to the notice addresses of the obligor and any
1024junior interestholder.
1025     (c)  After the date of recording of the notice of sale,
1026notice is not required to be given to any person claiming an
1027interest in the timeshare interest except as provided in this
1028section. The recording of the notice of sale has the same force
1029and effect as the filing of a lis pendens in a judicial
1030proceeding under s. 48.23.
1031     (d)1.  The trustee shall publish the notice of sale in a
1032newspaper of general circulation in the county or counties in
1033which the timeshare interest is located at least once a week for
10342 consecutive weeks before the date of the sale. The last
1035publication shall occur at least 5 calendar days before the
1036sale.
1037     2.  The trustee may group an unlimited number of notices of
1038sale in the same publication, if all of the notices of sale
1039pertain to the same timeshare plan.
1040     (7)  MANNER OF SALE.-
1041     (a)  The sale of a timeshare interest by the trustee in a
1042public auction shall be held in the county in which the
1043timeshare interest is located, on the date, location, and
1044starting time designated in the notice of sale, which shall be
1045after 9:00 a.m. but before 4:00 p.m. on a business day not less
1046than 30 calendar days after the recording of the notice of sale.
1047The trustee's sale may occur online at a specific website on the
1048Internet or in any other manner used by the clerk of the court
1049for a judicial foreclosure sales procedure in the county or
1050counties in which the timeshare interest is located.
1051     (b)  The trustee shall conduct the sale and act as the
1052auctioneer.
1053     (c)  The lienholder and any person other than the trustee
1054may bid at the sale. In lieu of participating in the sale, the
1055lienholder may send the trustee written bidding instructions
1056that the trustee shall announce as appropriate during the sale.
1057     (d)  The trustee may postpone the sale from time to time.
1058In such case, notice of postponement must be given by the
1059trustee at the date, time, and location contained in the notice
1060of sale. The notice of sale for the postponed sale shall be
1061mailed under paragraph (6)(b), recorded under paragraph (4)(f),
1062and published under paragraph (6)(d). The effective date of the
1063initial notice of sale under paragraph (6)(b) is not affected by
1064a postponed sale.
1065     (e)  The highest bidder of the timeshare interest shall pay
1066the price bid to the trustee in cash or certified funds on the
1067day of the sale. If the lienholder is the highest bidder, the
1068lienholder shall receive a credit up to the amount set forth in
1069the notice of sale as required under subparagraph (6)(a)6.
1070     (f)  On the date of the sale and upon receipt of the cash
1071or certified funds due from the highest bidder, the trustee
1072shall issue to the highest bidder a certificate of sale stating
1073that a foreclosure conforming to the requirements of this
1074section has occurred, including the time, location, and date of
1075the sale, that the timeshare interest was sold, the amounts
1076secured by the lien, and the amount of the highest bid. A copy
1077of the certificate of sale shall be mailed by certified mail,
1078registered mail, or permitted delivery service, return receipt
1079requested, to all persons entitled to receive a notice of sale
1080under subsection (6).
1081     (g)  Before a sale conducted pursuant to this subsection, a
1082junior interestholder may pursue adjudication by court, by
1083interpleader, or in any other authorized manner respecting any
1084matter that is disputed by the junior interestholder.
1085     (8)  EFFECT OF TRUSTEE'S SALE.-
1086     (a)  A sale conducted under subsection (7) forecloses and
1087terminates all interests of any person to whom notice is given
1088under paragraph (4)(e) and paragraph (6)(b), and of any other
1089person claiming interests by, through, or under any such person,
1090in the affected timeshare interest. A failure to give notice to
1091any person entitled to notice does not affect the validity of
1092the sale as to the interests of any person properly notified. A
1093person entitled to notice but not given notice has the rights of
1094a person not made a defendant in a judicial foreclosure.
1095     (b)  On the issuance of a certificate of sale under
1096paragraph (7)(f), all rights of redemption that have been
1097foreclosed under this section shall terminate.
1098     (c)  A sale conducted under subsection (7) releases the
1099obligor's liability for all amounts secured by the lien. The
1100lienholder has no right to any deficiency judgment against the
1101obligor after a sale of the obligor's timeshare interest under
1102this section.
1103     (d)  The issuance and recording of the trustee's deed is
1104presumed valid and may be relied upon by third parties without
1105actual knowledge of any irregularities in the foreclosure
1106proceedings. If for any reason there is an irregularity in the
1107foreclosure proceedings, a purchaser becomes subrogated to all
1108the rights of the lienholder to the indebtedness that it secured
1109to the extent necessary to reforeclose the mortgage lien in
1110order to correct the irregularity and becomes entitled to an
1111action de novo for the foreclosure of such mortgage lien. Any
1112subsequent reforeclosure required to correct an irregularity may
1113be conducted under this section.
1114     (9)  TRUSTEE'S CERTIFICATE OF COMPLIANCE.-
1115     (a)  Within 10 calendar days after the trustee conducts a
1116sale, the trustee shall execute and acknowledge a certificate of
1117compliance which:
1118     1.  Confirms delivery of the notice of default and intent
1119to foreclose and attaches the affidavit required under
1120subsection (5).
1121     2.  States that the default was not cured, that the trustee
1122did not receive any written objection under paragraph (3)(a),
1123and that the timeshare interest was not redeemed under paragraph
1124(3)(b).
1125     3.  States that the trustee is in possession of the
1126original promissory note executed by the mortgagor and secured
1127by the mortgage lien.
1128     4.  Confirms that the notice of sale was published as
1129required under paragraph (6)(d) and attaches an affidavit of
1130publication for the notice of sale.
1131     5.  Confirms that the notice of sale was mailed under
1132paragraph (6)(b) together with a list of the parties to whom the
1133notice of sale was mailed.
1134     (b)  In furtherance of the execution of the certificate of
1135compliance required under this subsection, the trustee is
1136entitled to rely upon an affidavit or certification from the
1137lienholder as to the facts and circumstances of default and
1138failure to cure the default.
1139     (10)  TRUSTEE'S DEED.-
1140     (a)  The trustee's deed shall include the name and address
1141of the trustee, the name and address of the highest bidder, the
1142name of the former owner, a legal description of the timeshare
1143interest, and the name and address of the preparer of the
1144trustee's deed. The trustee's deed shall recite that the
1145certificate of compliance was recorded and shall contain no
1146warranties of title from the trustee. The certificate of
1147compliance shall be attached as an exhibit to the trustee's
1148deed.
1149     (b)  Ten calendar days after a sale, absent the prior
1150filing and service on the trustee of a judicial action to enjoin
1151issuance of the trustee's deed to the timeshare interest, the
1152trustee shall:
1153     1.  Cancel the original promissory note executed by the
1154mortgagor and secured by the mortgage lien.
1155     2.  Issue a trustee's deed to the highest bidder.
1156     3.  Record the trustee's deed in the official records of
1157the county or counties in which the timeshare interest is
1158located.
1159     (c)1.  The certificate of compliance and trustee's deed
1160together are presumptive evidence of the truth of the matters
1161set forth in them, and an action to set aside the sale and void
1162the trustee's deed may not be filed or otherwise pursued against
1163any person acquiring the timeshare interest for value.
1164     2.  The trustee's deed conveys to the highest bidder all
1165rights, title, and interest in the timeshare interest that the
1166former owner had, or had the power to convey, together with all
1167rights, title, and interest that the former owner or his or her
1168successors in interest acquired after the execution of the
1169mortgage.
1170     3.  The issuance and recording of a trustee's deed shall
1171have the same force and effect as the issuance and recording of
1172a certificate of title by the clerk of the court in a judicial
1173foreclosure action.
1174     (11)  DISPOSITION OF PROCEEDS OF SALE.-
1175     (a)  The trustee shall apply the proceeds of the sale as
1176follows:
1177     1.  To the expenses of the sale, including compensation of
1178the trustee.
1179     2.  To the amount owed and set forth in the notice as
1180required under subparagraph (6)(a)6.
1181     3.  If there are junior interestholders, the trustee may
1182file an action in interpleader, pay the surplus to a court of
1183competent jurisdiction, name the competing junior
1184interestholders, and ask the court to determine the proper
1185distribution of the surplus. In any interpleader action, the
1186trustee shall recover reasonable attorney's fees and costs.
1187     4.  If there are no junior interestholders, or if all
1188junior interestholders have been paid, any surplus shall be paid
1189to the former owner. If the trustee is unable to locate the
1190former owner 1 year after the sale, the surplus, if any, shall
1191be deposited with the Chief Financial Officer under chapter 717.
1192     (b)  In disposing of the proceeds of the sale, the trustee
1193may rely on the information provided in the affidavit of the
1194lienholder under paragraph (2)(c) and, in the event of a dispute
1195or uncertainty over such claims, the trustee has the discretion
1196to submit the matter to adjudication by court, by interpleader,
1197or in any other authorized manner and shall recover reasonable
1198attorney's fees and costs.
1199     (12)  JUDICIAL FORECLOSURE ACTIONS.-The trustee foreclosure
1200procedure established in this section does not impair or
1201otherwise affect the lienholder's continuing right to bring a
1202judicial foreclosure action, in lieu of using the trustee
1203foreclosure procedure, with respect to any mortgage lien.
1204     (13)  ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
1205PROCEDURE.-An action for actual damages for a material violation
1206of this section may be brought by an obligor against the
1207lienholder for the failure to follow the trustee foreclosure
1208procedure contained in this section.
1209     Section 10.  Subsections (1) and (4) of section 721.86,
1210Florida Statutes, are amended to read:
1211     721.86  Miscellaneous provisions.-
1212     (1)  In the event of a conflict between the provisions of
1213this part and the other provisions of this chapter, chapter 702,
1214or other applicable law, the provisions of this part shall
1215prevail. The procedures in this part must be given effect in the
1216context of any foreclosure proceedings against timeshare
1217interests estates governed by this chapter, chapter 702, chapter
1218718, or chapter 719.
1219     (4)  In addition to assessment liens and mortgage liens
1220arising after the effective date of this part, except as
1221provided in s. 721.855(13), the provisions of this part apply to
1222all assessment liens and mortgage liens existing prior to the
1223effective date of this act regarding which a foreclosure
1224proceeding has not yet commenced.
1225     Section 11.  Subsection (2) of section 721.20, Florida
1226Statutes, is amended to read:
1227     721.20  Licensing requirements; suspension or revocation of
1228license; exceptions to applicability; collection of advance fees
1229for listings unlawful.-
1230     (2)  Solicitors who engage only in the solicitation of
1231prospective purchasers and any purchaser who refers no more than
123220 people to a developer or managing entity per year or who
1233otherwise provides testimonials on behalf of a developer or
1234managing entity are exempt from the provisions of chapter 475.
1235     Section 12.  This act shall take effect upon becoming a
1236law.


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