CS/CS/HB 1411

1
A bill to be entitled
2An act relating to foreclosures; amending s. 721.07, F.S.;
3providing lien disclosure requirements for filed public
4offering statements for certain timeshare plans; amending
5s. 721.13, F.S.; requiring officers, directors, and agents
6of a timeshare owners' association to act in good faith;
7providing for damages; providing exceptions; amending s.
8721.16, F.S.; authorizing a managing entity to bring a
9judicial action or a trustee procedure to foreclose
10certain liens under specified conditions; revising when a
11lien is effective; renaming part III of chapter 721, F.S.,
12to conform to changes made by this act; amending s.
13721.81, F.S.; revising and providing legislative purposes
14of the part; amending s. 721.82 F.S.; revising and
15providing definitions; amending s. 721.83, F.S., relating
16to consolidation of foreclosure actions; clarifying
17application to judicial foreclosure actions; amending s.
18721.85, F.S., relating to service to notice address or on
19registered agent; conforming provisions to changes made by
20this act; creating s. 721.855, F.S.; establishing
21procedure for the trustee foreclosure of assessment liens;
22providing for the appointment of a trustee; providing
23recording requirements for such liens; providing
24procedures for the initiation of a trustee foreclosure
25procedure against a timeshare interest; providing
26procedures for an obligor's objection to the trustee
27foreclosure procedure; providing conditions to a trustee's
28exercise of power of sale; providing requirements for a
29notice of default and intent to sell; providing
30requirements for a notice of sale; providing requirements
31for the sale by auction of foreclosed encumbered timeshare
32interests; providing requirements for a trustee's
33certificate of compliance; providing for the effect of a
34trustee's sale; providing requirements for a trustee's
35deed; providing for the disposition of proceeds of the
36sale; providing that the trustee foreclosure procedure
37does not impair or otherwise affect the right to bring
38certain actions; providing application; providing for
39actions for failure to follow the trustee foreclosure
40procedure; creating s. 721.856, F.S.; establishing
41procedure for the trustee foreclosure of mortgage liens;
42providing for the appointment of a trustee; providing
43recording requirements for such liens; providing
44procedures for the initiation of a trustee foreclosure
45procedure against a timeshare interest; providing
46procedures for an obligor's objection to the trustee
47foreclosure procedure; providing conditions to a trustee's
48exercise of power of sale; providing requirements for a
49notice of default and intent to sell; providing
50requirements for a notice of sale; providing requirements
51for the sale by auction of foreclosed encumbered timeshare
52interests; providing requirements for a trustee's
53certificate of compliance; providing for the effect of a
54trustee's sale; providing requirements for a trustee's
55deed; providing for the disposition of proceeds of the
56sale; providing that the trustee foreclosure procedure
57does not impair or otherwise affect the right to bring
58certain actions; providing for actions for failure to
59follow the trustee foreclosure procedure; amending s.
60721.86, F.S.; providing for priority of application in
61case of conflict; conforming terminology to changes made
62by this act; amending s. 721.20, F.S.; revising exemptions
63from certain licensing requirements; amending s. 727.113,
64F.S.; providing for calculation of deficiency judgments
65related to an assignment for the benefit of creditors when
66the property is abandoned to the mortgagee; providing
67applicability to pending cases; providing an effective
68date.
69
70Be It Enacted by the Legislature of the State of Florida:
71
72     Section 1.  Paragraph (jj) is added to subsection (5) of
73section 721.07, Florida Statutes, to read:
74     721.07  Public offering statement.-Prior to offering any
75timeshare plan, the developer must submit a filed public
76offering statement to the division for approval as prescribed by
77s. 721.03, s. 721.55, or this section. Until the division
78approves such filing, any contract regarding the sale of that
79timeshare plan is subject to cancellation by the purchaser
80pursuant to s. 721.10.
81     (5)  Every filed public offering statement for a timeshare
82plan which is not a multisite timeshare plan shall contain the
83information required by this subsection. The division is
84authorized to provide by rule the method by which a developer
85must provide such information to the division.
86     (jj)  The following statement in conspicuous type:
87
88The managing entity has a lien against each timeshare
89interest to secure the payment of assessments, ad
90valorem assessments, tax assessments, and special
91assessments. Your failure to make any required
92payments may result in the judicial or trustee
93foreclosure of an assessment lien and the loss of your
94timeshare interest. If the managing entity initiates a
95trustee foreclosure procedure, you shall have the
96option to object to the use of the trustee foreclosure
97procedure and the managing entity may only proceed by
98filing a judicial foreclosure action.
99     Section 2.  Subsection (13) is added to section 721.13,
100Florida Statutes, to read:
101     721.13  Management.-
102     (13)  Notwithstanding any provisions of chapter 607,
103chapter 617, or chapter 718, an officer, director, or agent of
104an owners' association shall discharge his or her duties in good
105faith, with the care an ordinarily prudent person in a like
106position would exercise under similar circumstances, and in a
107manner he or she reasonably believes to be in the interests of
108the owners' association. An officer, director, or agent of an
109owners' association shall be exempt from liability for monetary
110damages in the same manner as provided in s. 617.0834 unless
111such officer, director, or agent breached or failed to perform
112his or her duties and the breach of, or failure to perform, his
113or her duties constitutes a violation of criminal law as
114provided in s. 617.0834; constitutes a transaction from which
115the officer or director derived an improper personal benefit,
116either directly or indirectly; or constitutes recklessness or an
117act or omission that was in bad faith, with malicious purpose,
118or in a manner exhibiting wanton and willful disregard of human
119rights, safety, or property.
120     Section 3.  Subsections (2) and (3) of section 721.16,
121Florida Statutes, are amended to read:
122     721.16  Liens for overdue assessments; liens for labor
123performed on, or materials furnished to, a timeshare unit.-
124     (2)  The managing entity may bring a judicial an action in
125its name to foreclose a lien under subsection (1) in the manner
126a mortgage of real property is foreclosed and may also bring an
127action to recover a money judgment for the unpaid assessments
128without waiving any claim of lien. As an alternative to
129initiating a judicial action, the managing entity may initiate a
130trustee procedure to foreclose an assessment lien under s.
131721.855.
132     (3)  The lien is effective from the date of recording a
133claim of lien in the official public records of the county or
134counties in which the timeshare interest is accommodations and
135facilities constituting the timeshare plan are located. The
136claim of lien shall state the name of the timeshare plan and
137identify the timeshare interest for which the lien is effective,
138state the name of the purchaser, state the assessment amount
139due, and state the due dates. Notwithstanding any provision of
140s. 718.116(5)(a) or s. 719.108(4) to the contrary, the lien is
141effective until satisfied or until 5 years have expired after
142the date the claim of lien is recorded unless, within that time,
143an action to enforce the lien is commenced pursuant to
144subsection (2). A claim of lien for assessments may include only
145assessments which are due when the claim is recorded. A claim of
146lien shall be signed and acknowledged by an officer or agent of
147the managing entity. Upon full payment, the person making the
148payment is entitled to receive a satisfaction of the lien.
149     Section 4.  Part III of chapter 721, Florida Statutes,
150entitled "Foreclosure of Liens on Timeshare Estates," is renamed
151"Foreclosure of Liens on Timeshare Interests."
152     Section 5.  Section 721.81, Florida Statutes, is amended to
153read:
154     721.81  Legislative purpose.-The purposes of this part are
155to:
156     (1)  Recognize that timeshare interests estates are parcels
157of real property used for vacation experience rather than for
158homestead or investment purposes and that there are numerous
159timeshare interests estates in this the state.
160     (2)  Recognize that the economic health and efficient
161operation of the vacation ownership industry are in part
162dependent upon the availability of an efficient and economical
163process for all timeshare interest foreclosures foreclosure.
164     (3)  Recognize the need to assist both owners' associations
165and mortgagees by simplifying and expediting the process for the
166judicial and trustee of foreclosure of assessment liens and
167mortgage liens against timeshare interests estates.
168     (4)  Improve judicial economy and reduce court congestion
169and the cost to taxpayers by establishing streamlined procedures
170for the judicial and trustee foreclosure of assessment liens and
171mortgage liens against timeshare interests estates.
172     (5)  Recognize that nearly all timeshare interest
173foreclosures are uncontested.
174     (6)  Protect the ability of consumers who own timeshare
175interests located in this state to choose a judicial proceeding
176for the foreclosure of an assessment lien or a mortgage lien
177against their timeshare interest.
178     (7)  Recognize that the use of the trustee foreclosure
179procedure established under ss. 721.855 and 721.856 shall have
180the same force and effect as the use of the judicial foreclosure
181procedure against a timeshare interest with respect to the
182provisions of this chapter or any other applicable law. However,
183obligors shall not be subject to a deficiency judgment even if
184the proceeds from the sale of the timeshare interest are
185insufficient to offset the amounts secured by the lien.
186     Section 6.  Section 721.82, Florida Statutes, is amended to
187read:
188     721.82  Definitions.-As used in this part, the term:
189     (1)  "Amounts secured by the lien" means all amounts
190secured by an assessment lien or mortgage lien, including, but
191not limited to, all past due amounts, accrued interest, late
192fees, taxes, advances for the payment of taxes, insurance and
193maintenance of the timeshare interest, and any fees or costs
194incurred by the lienholder or trustee, including any reasonable
195attorney's fees, trustee's fees, and costs incurred in
196connection with the default.
197     (2)(1)  "Assessment lien" means:
198     (a)  A lien for delinquent assessments as provided in ss.
199721.16, 718.116, and 719.108, and 721.16 as to timeshare
200condominiums; or
201     (b)  A lien for unpaid ad valorem assessments, tax
202assessments, taxes and special assessments as provided in s.
203192.037(8).
204     (3)(2)  "Junior interestholder" means any person who has a
205lien or interest of record against a timeshare interest estate
206in the county or counties in which the timeshare interest estate
207is located, which is inferior to the mortgage lien or assessment
208lien being foreclosed under this part.
209     (4)(3)  "Lienholder" means a holder of an assessment lien
210or a holder of a mortgage lien, as applicable. A receiver
211appointed under s. 721.26 is a lienholder for purposes of
212foreclosure of assessment liens under this part.
213     (5)(4)  "Mortgage" has the same meaning set forth in s.
214697.01.
215     (6)(5)  "Mortgage lien" means a security interest in a
216timeshare interest estate created by a mortgage encumbering the
217timeshare interest estate.
218     (7)(6)  "Mortgagee" means a person holding a mortgage lien.
219     (8)(7)  "Mortgagor" means a person granting a mortgage lien
220or a person who has assumed the obligation secured by a mortgage
221lien.
222     (9)(8)  "Notice address" means:
223     (a)  As to an assessment lien, the address of the current
224owner of a timeshare interest estate as reflected by the books
225and records of the timeshare plan under ss. 721.13(4) and
226721.15(7).
227     (b)  As to a mortgage lien:
228     1.  The address of the mortgagor as set forth in the
229mortgage, the promissory note or a separate document executed by
230the mortgagor at the time the mortgage lien was created, or the
231most current address of the mortgagor according to the records
232of the mortgagee; and
233     2.  If the current owner of the timeshare interest estate
234is different from the mortgagor, the address of the current
235owner of the timeshare interest estate as reflected by the books
236and records of the mortgagee.
237     (c)  As to a junior interestholder, the address as set
238forth in the recorded instrument creating the junior lien
239interest or interest lien, or in any recorded amendment
240supplement thereto changing the address, or in any written
241notification by the junior interestholder to the foreclosing
242lienholder changing the of such change in address.
243     (10)(9)  "Obligor" means the mortgagor, the person subject
244to an assessment lien, or the record owner of the timeshare
245interest estate.
246     (11)  "Permitted delivery service" means any nationally
247recognized common carrier delivery service or international
248airmail service that allows for return receipt service.
249     (12)(10)  "Registered agent" means an agent duly appointed
250by the obligor under s. 721.84 for the purpose of accepting all
251notices and service of process under this part. A registered
252agent may be an individual resident in this state whose business
253office qualifies as a registered office, or a domestic or
254foreign corporation or a not-for-profit corporation as defined
255in chapter 617 authorized to transact business or to conduct its
256affairs in this state, whose business office qualifies as a
257registered office. A registered agent for any obligor may not be
258the lienholder or the attorney for the lienholder.
259     (13)(11)  "Registered office" means the street address of
260the business office of the registered agent appointed under s.
261721.84, located in this state.
262     (14)  "Trustee" means an attorney who is a member in good
263standing of The Florida Bar and who has been practicing law for
264at least 5 years or that attorney's law firm, or a title insurer
265authorized to transact business in this state under s. 624.401
266and who has been authorized to transact business for at least 5
267years, appointed as trustee or as substitute trustee in
268accordance with s. 721.855 or s. 721.856. A receiver appointed
269under s. 721.26 may act as a trustee under s. 721.855. A trustee
270must be independent as defined in s. 721.05(20).
271     Section 7.  Section 721.83, Florida Statutes, is amended to
272read:
273     721.83  Consolidation of judicial foreclosure actions.-
274     (1)  A complaint in a foreclosure proceeding involving
275timeshare interests estates may join in the same action multiple
276defendant obligors and junior interestholders of separate
277timeshare interests estates, provided:
278     (a)  The foreclosure proceeding involves a single timeshare
279property.
280     (b)  The foreclosure proceeding is filed by a single
281plaintiff.
282     (c)  The default and remedy provisions in the written
283instruments on which the foreclosure proceeding is based are
284substantially the same for each defendant.
285     (d)  The nature of the defaults alleged is the same for
286each defendant.
287     (e)  No more than 15 timeshare interests estates, without
288regard to the number of defendants, are joined within the same
289consolidated foreclosure action.
290     (2)  In any foreclosure proceeding involving multiple
291defendants filed under subsection (1), the court shall sever for
292separate trial any count of the complaint in which a defense or
293counterclaim is timely raised by a defendant.
294     (3)  A consolidated timeshare foreclosure action shall be
295considered a single action, suit, or proceeding for the payment
296of filing fees and service charges pursuant to general law. In
297addition to the payment of such filing fees and service charges,
298an additional filing fee of up to $10 for each timeshare
299interest estate joined in that action shall be paid to the clerk
300of court.
301     Section 8.  Section 721.85, Florida Statutes, is amended to
302read:
303     721.85  Service to notice address or on registered agent.-
304     (1)  Service of process for a foreclosure proceeding
305involving a timeshare interest estate may be made by any means
306recognized by law. In addition, substituted service on an
307obligor a party who has appointed a registered agent under s.
308721.84 may be made on such registered agent at the registered
309office. Also, when using s. 48.194 where in rem or quasi in rem
310relief only is sought, such service of process provisions are
311modified in connection with a foreclosure proceeding against a
312timeshare interest estate to provide that:
313     (a)  Such service of process may be made on any person
314whether the person is located inside or outside this state, by
315certified mail, or registered mail, or permitted delivery
316service, return receipt requested, addressed to the person to be
317served at the notice address, or on the person's party's
318registered agent duly appointed under s. 721.84, at the
319registered office; and
320     (b)  Service shall be considered obtained upon the signing
321of the return receipt by any person at the notice address, or by
322the registered agent.
323     (2)  The current owner and the mortgagor of a timeshare
324interest estate must promptly notify the owners' association and
325the mortgagee of any change of address.
326     (3)  Substituted notice under s. 721.855 or s. 721.856 for
327any party who has appointed a registered agent under s. 721.84
328may be made on such registered agent at the registered office.
329     Section 9.  Section 721.855, Florida Statutes, is created
330to read:
331     721.855  Procedure for the trustee foreclosure of
332assessment liens.-The provisions of this section establish a
333trustee foreclosure procedure for assessment liens.
334     (1)  APPOINTMENT OF TRUSTEE.-
335     (a)  A trustee or a substitute trustee may be appointed by
336a lienholder at any time by recording a notice of appointment of
337trustee or notice of substitution of trustee in the official
338records of the county or counties in which the timeshare
339interest is located. A lienholder may appoint multiple trustees
340in a single appointment, and any appointed trustee may be used
341by the lienholder regarding the trustee foreclosure of any
342assessment lien under any timeshare plan for which the trustee
343is appointed.
344     (b)  A trustee shall use good faith, skill, care, and
345diligence in discharging all of the trustee duties under this
346section and shall deal honestly and fairly with all parties.
347     (c)  The recorded notice of appointment of trustee or
348notice of substitution of trustee shall contain the name and
349address of the trustee or substitute trustee, the name and
350address of the lienholder, and the name and address of the
351timeshare plan.
352     (2)  INITIATING THE USE OF A TRUSTEE FORECLOSURE
353PROCEDURE.-
354     (a)  Before initiating the trustee foreclosure procedure
355against any timeshare interest in a given timeshare plan:
356     1.  If a timeshare instrument contains any provision
357specifically prohibiting the use of the trustee foreclosure
358procedure, or if the managing entity otherwise determines that
359the timeshare instrument should be amended to specifically
360provide for the use of the trustee foreclosure procedure, an
361amendment to the timeshare instrument permitting the use of the
362trustee foreclosure procedure set forth in this section must be
363adopted and recorded prior to the use of the trustee foreclosure
364procedure. Such amendment to the timeshare instrument shall
365contain a statement in substantially the following form and may
366be adopted by a majority of those present and voting at a duly
367called meeting of the owners' association at which at least 15
368percent of the voting interest are present in person or by
369proxy:
370
371If a timeshare owner fails to make timely payments of
372timeshare plan common expenses, ad valorem taxes, or
373special assessments, an assessment lien against the
374timeshare owner's timeshare interest may be foreclosed
375in accordance with a judicial foreclosure procedure or
376a trustee foreclosure procedure, either of which may
377result in the loss of the timeshare owner's timeshare
378interest. If the managing entity initiates a trustee
379foreclosure procedure, the timeshare owner shall have
380the option to object pursuant to Florida law, and in
381such event the managing entity may thereafter proceed
382only by filing a judicial foreclosure action.
383
384     2.  The managing entity shall inform owners of timeshare
385interests in the timeshare plan in writing that the managing
386entity has the right to elect to use the trustee foreclosure
387procedure with respect to foreclosure of assessment liens as
388established in this section. The managing entity shall be deemed
389to have complied with the requirements of this subparagraph if
390the owners of timeshare interests in the given timeshare plan
391are informed by mail sent to each owner's notice address, in the
392notice of an annual or special meeting of the owners, by posting
393on the website of the applicable timeshare plan, or by any owner
394communication used by the managing entity.
395     (b)  Before initiating the trustee foreclosure procedure
396against any timeshare interest, a claim of lien against the
397timeshare interest shall be recorded under s. 721.16 or, if
398applicable, s. 718.116 or s. 719.108, and the notice of the
399intent to file a lien shall be given under s. 718.121 for
400timeshare condominiums and s. 719.108 for timeshare
401cooperatives.
402     (c)1.  In order to initiate a trustee foreclosure procedure
403against a timeshare interest, the lienholder shall deliver an
404affidavit to the trustee that identifies the obligor; the notice
405address of the obligor; the timeshare interest; the date that
406the notice of the intent to file a lien was given, if
407applicable; the official records book and page number where the
408claim of lien is recorded; and the name and notice address of
409any junior interestholder. The affidavit shall be accompanied by
410a title search of the timeshare interest identifying any junior
411interestholders of record, and the effective date of the title
412search must be a date that is within 60 calendar days before the
413date of the affidavit.
414     2.  The affidavit shall also state the facts that establish
415that the obligor has defaulted in the obligation to make a
416payment under a specified provision of the timeshare instrument
417or applicable law.
418     3.  The affidavit shall also specify the amounts secured by
419the lien as of the date of the affidavit and a per diem amount
420to account for further accrual of the amounts secured by the
421lien.
422     4.  The affidavit shall also state that the assessment lien
423was properly created and authorized pursuant to the timeshare
424instrument and applicable law.
425     (3)  OBLIGOR'S RIGHTS.-
426     (a)  The obligor may object to the lienholder's use of the
427trustee foreclosure procedure for a specific default any time
428before the sale of the timeshare interest under subsection (7)
429by delivering a written objection to the trustee using the
430objection form provided for in subsection (5). If the trustee
431receives the written objection from the obligor, the trustee may
432not proceed with the trustee foreclosure procedure as to the
433default specified in the notice of default and intent to
434foreclose under subsection (5), and the lienholder may proceed
435thereafter only with a judicial foreclosure action as to that
436specified default.
437     (b)  At any time before the trustee issues the certificate
438of sale under paragraph (7)(f), the obligor may cure the default
439and redeem the timeshare interest by paying the amounts secured
440by the lien in cash or certified funds to the trustee. After the
441trustee issues the certificate of sale, there is no right of
442redemption.
443     (4)  CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A
444trustee may sell an encumbered timeshare interest foreclosed
445under this section if:
446     (a)  The trustee has received the affidavit from the
447lienholder under paragraph (2)(c);
448     (b)  The trustee has not received a written objection to
449the use of the trustee foreclosure procedure under paragraph
450(3)(a) and the timeshare interest was not redeemed under
451paragraph (3)(b);
452     (c)  There is no lis pendens recorded and pending against
453the same timeshare interest and the trustee has not been served
454notice of the filing of any action to enjoin the trustee
455foreclosure sale;
456     (d)  The trustee has provided written notice of default and
457intent to foreclose as required under subsection (5) and a
458period of at least 30 calendar days has elapsed after such
459notice is deemed perfected under subsection (5); and
460     (e)  The notice of sale required under subsection (6) has
461been recorded in the official records of the county or counties
462in which the timeshare interest is located.
463     (5)  NOTICE OF DEFAULT AND INTENT TO FORECLOSE.-
464     (a)  In any foreclosure proceeding under this section, the
465trustee is required to notify the obligor of the proceeding by
466sending the obligor a written notice of default and intent to
467foreclose to the notice address of the obligor by certified
468mail, registered mail, or permitted delivery service, return
469receipt requested, and by first-class mail or permitted delivery
470service, postage prepaid, as follows:
471     1.  The notice of default and intent to foreclose shall
472identify the obligor, the notice address of the obligor, the
473legal description of the timeshare interest, the nature of the
474default, the amounts secured by the lien, and a per diem amount
475to account for further accrual of the amounts secured by the
476lien and shall state the method by which the obligor may cure
477the default, including the period of time after the date of the
478notice of default and intent to foreclose within which the
479obligor may cure the default.
480     2.  The notice of default and intent to foreclose shall
481include an objection form with which the obligor can object to
482the use of the trustee foreclosure procedure by signing and
483returning the objection form to the trustee. The objection form
484shall identify the obligor, the notice address of the obligor,
485the timeshare interest, and the return address of the trustee
486and shall state: "The undersigned obligor exercises the
487obligor's right to object to the use of the trustee foreclosure
488procedure contained in section 721.855, Florida Statutes."
489     3.  The notice of default and intent to foreclose shall
490also contain a statement in substantially the following form:
491
492If you fail to cure the default as set forth in this
493notice or take other appropriate action with regard to
494this foreclosure matter, you risk losing ownership of
495your timeshare interest through the trustee
496foreclosure procedure established in section 721.855,
497Florida Statutes. You may choose to sign and send to
498the trustee the enclosed objection form, exercising
499your right to object to the use of the trustee
500foreclosure procedure. Upon the trustee's receipt of
501your signed objection form, the foreclosure of the
502lien with respect to the default specified in this
503notice shall be subject to the judicial foreclosure
504procedure only. You have the right to cure your
505default in the manner set forth in this notice at any
506time before the trustee's sale of your timeshare
507interest. If you do not object to the use of the
508trustee foreclosure procedure, you will not be subject
509to a deficiency judgment even if the proceeds from the
510sale of your timeshare interest are insufficient to
511offset the amounts secured by the lien.
512
513     4.  The trustee shall also mail a copy of the notice of
514default and intent to foreclose, without the objection form, to
515the notice address of any junior interestholder by certified
516mail, registered mail, or permitted delivery service, return
517receipt requested, and by first-class mail or permitted delivery
518service, postage prepaid.
519     5.  Notice under this paragraph is considered perfected
520upon the trustee receiving the return receipt bearing the
521signature of the obligor or junior interestholder, as
522applicable, within 30 calendar days after the trustee sent the
523notice under this paragraph. Notice under this paragraph is not
524perfected if the notice is returned as undeliverable within 30
525calendar days after the trustee sent the notice, if the trustee
526cannot ascertain from the receipt that the obligor or junior
527interestholder, as applicable, is the person who signed the
528receipt, or if the receipt from the obligor or junior
529interestholder, as applicable, is returned or refused within 30
530calendar days after the trustee sent the notice.
531     (b)  If the notice required by paragraph (a) is returned as
532undeliverable within 30 calendar days after the trustee sent the
533notice, the trustee shall perform a diligent search and inquiry
534to obtain a different address for the obligor or junior
535interestholder. For purposes of this paragraph, any address
536known and used by the lienholder for sending regular mailings or
537other communications from the lienholder to the obligor or
538junior interestholder, as applicable, shall be included with
539other addresses produced from the diligent search and inquiry,
540if any.
541     1.  If the trustee's diligent search and inquiry produces
542an address different from the notice address, the trustee shall
543mail a copy of the notice by certified mail, registered mail, or
544permitted delivery service, return receipt requested, and by
545first-class mail or permitted delivery service, postage prepaid,
546to the new address. Notice under this subparagraph is considered
547perfected upon the trustee receiving the return receipt bearing
548the signature of the obligor or junior interestholder, as
549applicable, within 30 calendar days after the trustee sent the
550notice under this subparagraph. Notice under this subparagraph
551is not perfected if the trustee cannot ascertain from the
552receipt that the obligor or junior interestholder, as
553applicable, is the person who signed the receipt or the receipt
554from the obligor or junior interestholder, as applicable, is
555returned refused. If the trustee does not perfect notice under
556this subparagraph, the trustee shall perfect service in the
557manner set forth in paragraph (c).
558     2.  If the trustee's diligent search and inquiry does not
559locate a different address for the obligor or junior
560interestholder, as applicable, the trustee may perfect notice
561against that person under paragraph (c).
562     (c)  If the notice is not perfected under subparagraph
563(a)5., and such notice was not returned as undeliverable, or if
564the notice was not perfected under subparagraph (b)1., the
565trustee may perfect notice by publication in a newspaper of
566general circulation in the county or counties in which the
567timeshare interest is located. The notice shall appear at least
568once a week for 2 consecutive weeks. The trustee may group an
569unlimited number of notices in the same publication, if all of
570the notices pertain to the same timeshare plan. Notice under
571this paragraph is considered perfected upon publication as
572required in this paragraph.
573     (d)  If notice is perfected under subparagraph (a)5., the
574trustee shall execute an affidavit in recordable form setting
575forth the manner in which notice was perfected and attach the
576affidavit to the certificate of compliance set forth in
577subsection (9). The affidavit shall state the nature of the
578notice, the date on which the notice was mailed, the name and
579address on the envelope containing the notice, the manner in
580which the notice was mailed, and the basis for that knowledge.
581     (e)  If notice is perfected under subparagraph (b)1., the
582trustee shall execute an affidavit in recordable form setting
583forth the manner in which notice was perfected and attach the
584affidavit to the certificate of compliance set forth in
585subsection (9). The affidavit shall state the nature of the
586notice, the dates on which the notice was mailed, the name and
587addresses on the envelopes containing the notice, the manner in
588which the notices were mailed, the fact that a signed receipt
589from the certified mail, registered mail, or permitted delivery
590service was timely received, and the name and address on the
591envelopes containing the notice.
592     (f)  If notice is perfected by publication under paragraph
593(c), the trustee shall execute an affidavit in recordable form
594setting forth the manner in which notice was perfected and
595attach the affidavit to the certificate of compliance set forth
596in subsection (9). The affidavit shall include all the
597information contained in either paragraph (d) or paragraph (e),
598as applicable, shall state that the notice was perfected by
599publication after diligent search and inquiry was made for the
600current address for the person, and shall include a statement
601that notice was perfected by publication, and shall set forth
602the information required by s. 49.041 in the case of a natural
603person or s. 49.051 in the case of a corporation, whichever is
604applicable. No other action of the trustee is necessary to
605perfect notice.
606     (6)  NOTICE OF SALE.-
607     (a)  The notice of sale shall set forth:
608     1.  The name and notice addresses of the obligor and any
609junior interestholder.
610     2.  The legal description of the timeshare interest.
611     3.  The name and address of the trustee.
612     4.  A description of the default that is the basis for the
613foreclosure.
614     5.  The official records book and page numbers where the
615claim of lien is recorded.
616     6.  The amounts secured by the lien and a per diem amount
617to account for further accrual of the amounts secured by the
618lien.
619     7.  The date, location, and starting time of the trustee's
620sale.
621     8.  The right of and the method by which the obligor may
622cure the default or the right of any junior interestholder to
623redeem its interest up to the date the trustee issues the
624certificate of sale in accordance with paragraph (7)(f).
625     (b)  The trustee shall send a copy of the notice of sale
626within 3 business days after the date it is submitted for
627recording, by first-class mail or permitted delivery service,
628postage prepaid, to the notice addresses of the obligor and any
629junior interestholder.
630     (c)  After the date of recording of the notice of sale,
631notice is not required to be given to any person claiming an
632interest in the timeshare interest except as provided in this
633section. The recording of the notice of sale has the same force
634and effect as the filing of a lis pendens in a judicial
635proceeding under s. 48.23.
636     (d)1.  The trustee shall publish the notice of sale in a
637newspaper of general circulation in the county or counties in
638which the timeshare interest is located at least once a week for
6392 consecutive weeks before the date of the sale. The last
640publication shall occur at least 5 calendar days before the
641sale.
642     2.  The trustee may group an unlimited number of notices of
643sale in the same publication, if all of the notices of sale
644pertain to the same timeshare plan.
645     (7)  MANNER OF SALE.-
646     (a)  The sale of a timeshare interest by the trustee in a
647public auction shall be held in the county in which the
648timeshare interest is located, on the date, location, and
649starting time designated in the notice of sale, which shall be
650after 9:00 a.m. but before 4:00 p.m. on a business day not less
651than 30 calendar days after the recording of the notice of sale.
652The trustee's sale may occur online at a specific website on the
653Internet or in any other manner used by the clerk of the court
654for a judicial foreclosure sales procedure in the county or
655counties in which the timeshare interest is located.
656     (b)  The trustee shall conduct the sale and act as the
657auctioneer.
658     (c)  The lienholder and any person other than the trustee
659may bid at the sale. In lieu of participating in the sale, the
660lienholder may send the trustee written bidding instructions
661that the trustee shall announce as appropriate during the sale.
662     (d)  The trustee may postpone the sale from time to time.
663In such case, notice of postponement must be given by the
664trustee at the date, time, and location contained in the notice
665of sale. The notice of sale for the postponed sale shall be
666mailed under paragraph (6)(b), recorded under paragraph (4)(e),
667and published under paragraph (6)(d). The effective date of the
668initial notice of sale under paragraph (6)(b) is not affected by
669a postponed sale.
670     (e)  The highest bidder of the timeshare interest shall pay
671the price bid to the trustee in cash or certified funds on the
672day of the sale. If the lienholder is the highest bidder, the
673lienholder shall receive a credit up to the amount set forth in
674the notice of sale as required under subparagraph (6)(a)6.
675     (f)  On the date of the sale and upon receipt of the cash
676or certified funds due from the highest bidder, the trustee
677shall issue to the highest bidder a certificate of sale stating
678that a foreclosure conforming to the requirements of this
679section has occurred, including the time, location, and date of
680the sale, that the timeshare interest was sold, the amounts
681secured by the lien, and the amount of the highest bid. A copy
682of the certificate of sale shall be mailed by certified mail,
683registered mail, or permitted delivery service, return receipt
684requested, to all persons entitled to receive a notice of sale
685under subsection (6).
686     (g)  Before a sale conducted under this subsection, a
687junior interestholder may pursue adjudication by court, by
688interpleader, or in any other authorized manner respecting any
689matter that is disputed by the junior interestholder.
690     (8)  EFFECT OF TRUSTEE'S SALE.-
691     (a)  A sale conducted under subsection (7) forecloses and
692terminates all interests of any person with notice to whom
693notice is given under paragraph (4)(d) and paragraph (6)(b), and
694of any other person claiming interests by, through, or under any
695such person, in the affected timeshare interest. A failure to
696give notice to any person entitled to notice does not affect the
697validity of the sale as to the interests of any person properly
698notified. A person entitled to notice but not given notice has
699the rights of a person not made a defendant in a judicial
700foreclosure.
701     (b)  On the issuance of a certificate of sale under
702paragraph (7)(f), all rights of redemption that have been
703foreclosed under this section shall terminate.
704     (c)  A sale conducted under subsection (7) releases the
705obligor's liability for all amounts secured by the lien. The
706lienholder has no right to any deficiency judgment against the
707obligor after a sale of the obligor's timeshare interest under
708this section.
709     (d)  The issuance and recording of the trustee's deed is
710presumed valid and may be relied upon by third parties without
711actual knowledge of irregularities in the foreclosure
712proceedings. If for any reason there is an irregularity in the
713foreclosure proceedings, a purchaser becomes subrogated to all
714the rights of the lienholder to the indebtedness that it secured
715to the extent necessary to reforeclose the assessment lien in
716order to correct the irregularity and becomes entitled to an
717action de novo for the foreclosure of such assessment lien. Any
718subsequent reforeclosure required to correct an irregularity may
719be conducted under this section.
720     (9)  TRUSTEE'S CERTIFICATE OF COMPLIANCE.-
721     (a)  Within 10 calendar days after the trustee conducts a
722sale, the trustee shall execute and acknowledge a certificate of
723compliance that:
724     1.  Confirms delivery of the notice of default and intent
725to foreclose and attaches the affidavit required under
726subsection (5).
727     2.  States that the default was not cured, that the trustee
728did not receive any written objection under paragraph (3)(a),
729and that the timeshare interest was not redeemed under paragraph
730(3)(b).
731     3.  Confirms that the notice of sale was published as
732required under paragraph (6)(d) and attaches an affidavit of
733publication for the notice of sale.
734     4.  Confirms that the notice of sale was mailed under
735paragraph (6)(b) together with a list of the parties to whom the
736notice of sale was mailed.
737     (b)  In furtherance of the execution of the certificate of
738compliance required under this subsection, the trustee is
739entitled to rely upon an affidavit or certification from the
740lienholder as to the facts and circumstances of default and
741failure to cure the default.
742     (10)  TRUSTEE'S DEED.-
743     (a)  The trustee's deed shall include the name and address
744of the trustee, the name and address of the highest bidder, the
745name of the former owner, a legal description of the timeshare
746interest, and the name and address of the preparer of the
747trustee's deed. The trustee's deed shall recite that the
748certificate of compliance was recorded and shall contain no
749warranties of title from the trustee. The certificate of
750compliance shall be attached as an exhibit to the trustee's
751deed.
752     (b)  Ten calendar days after a sale, absent the prior
753filing and service on the trustee of a judicial action to enjoin
754issuance of the trustee's deed to the timeshare interest, the
755trustee shall:
756     1.  Issue a trustee's deed to the highest bidder.
757     2.  Record the trustee's deed in the official records of
758the county or counties in which the timeshare interest is
759located.
760     (c)1.  The certificate of compliance and trustee's deed
761together are presumptive evidence of the truth of the matters
762set forth in them, and an action to set aside the sale and void
763the trustee's deed may not be filed or otherwise pursued against
764any person acquiring the timeshare interest for value.
765     2.  The trustee's deed conveys to the highest bidder all
766rights, title, and interest in the timeshare interest that the
767former owner had, or had the power to convey, at the time of the
768recording of the claim of lien, together with all rights, title,
769and interest that the former owner or his or her successors in
770interest acquired after the recording of the claim of lien.
771     3.  The issuance and recording of a trustee's deed shall
772have the same force and effect as the issuance and recording of
773a certificate of title by the clerk of the court in a judicial
774foreclosure action.
775     (11)  DISPOSITION OF PROCEEDS OF SALE.-
776     (a)  The trustee shall apply the proceeds of the sale as
777follows:
778     1.  To the expenses of the sale, including compensation of
779the trustee.
780     2.  To the amount owed and set forth in the notice as
781required in subparagraph (6)(a)6.
782     3.  If there are junior interestholders, the trustee may
783file an action in interpleader, pay the surplus to a court of
784competent jurisdiction, name the competing junior
785interestholders, and ask the court to determine the proper
786distribution of the surplus. In any interpleader action, the
787trustee shall recover reasonable attorney's fees and costs.
788     4.  If there are no junior interestholders, or if all
789junior interestholders have been paid, any surplus shall be paid
790to the former owner. If the trustee is unable to locate the
791former owner within 1 year after the sale, the surplus, if any,
792shall be deposited with the Chief Financial Officer under
793chapter 717.
794     (b)  In disposing of the proceeds of the sale, the trustee
795may rely on the information provided in the affidavit of the
796lienholder under paragraph (2)(c) and, in the event of a dispute
797or uncertainty over such claims, the trustee has the discretion
798to submit the matter to adjudication by court, by interpleader,
799or in any other authorized manner and shall recover reasonable
800attorney's fees and costs.
801     (12)  TRUSTEE FORECLOSURE ACTIONS.-The trustee foreclosure
802procedure established in this section does not impair or
803otherwise affect the lienholder's continuing right to bring a
804judicial foreclosure action, in lieu of using the trustee
805foreclosure procedure, with respect to any assessment lien.
806     (13)  APPLICATION.-This section applies to any default
807giving rise to the imposition of an assessment lien which occurs
808after the effective date of this section.
809     (14)  ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
810PROCEDURE.-An action for actual damages for a material violation
811of this section may be brought by an obligor against the
812lienholder for the failure to follow the trustee foreclosure
813procedure contained in this section.
814     Section 10.  Section 721.856, Florida Statutes, is created
815to read:
816     721.856  Procedure for the trustee foreclosure of mortgage
817liens.-The provisions of this section establish a trustee
818foreclosure procedure for mortgage liens.
819     (1)  APPOINTMENT OF TRUSTEE.-
820     (a)  A trustee or a substitute trustee may be appointed by
821a lienholder at any time by recording a notice of appointment of
822trustee or notice of substitution of trustee in the official
823records of the county or counties in which the timeshare
824interest is located. A lienholder may appoint multiple trustees
825in a single appointment, and any appointed trustee may be used
826by the lienholder regarding the trustee foreclosure of any
827mortgage lien.
828     (b)  A trustee shall use good faith, skill, care, and
829diligence in discharging all of the trustee duties under this
830section and shall deal honestly and fairly with all parties.
831     (c)  The recorded notice of appointment of trustee or
832notice of substitution of trustee shall contain the name and
833address of the trustee or substitute trustee, the name and
834address of the lienholder, and the name and address of the
835timeshare plan.
836     (2)  INITIATING THE TRUSTEE FORECLOSURE OF MORTGAGE LIENS.-
837     (a)  Before initiating the trustee foreclosure against a
838timeshare interest, the mortgage, or an amendment to a mortgage
839executed by the obligor before the effective date of this
840section, must contain a statement in substantially the following
841form:
842
843If the mortgagor fails to make timely payments under
844the obligation secured by this mortgage, or is
845otherwise deemed in uncured default of this mortgage,
846the lien against the mortgagor's timeshare interest
847created by this mortgage may be foreclosed in
848accordance with either a judicial foreclosure
849procedure or a trustee foreclosure procedure and may
850result in the loss of your timeshare interest. If the
851mortgagee initiates a trustee foreclosure procedure,
852the mortgagor shall have the option to object and the
853mortgagee may proceed only by filing a judicial
854foreclosure action.
855
856     (b)1.  In order to initiate a trustee foreclosure procedure
857against a timeshare interest, the lienholder shall deliver an
858affidavit to the trustee that identifies the obligor, the notice
859address of the obligor, the timeshare interest, the official
860records book and page number where the mortgage is recorded, and
861the name and notice address of any junior interestholder. The
862affidavit shall be accompanied by a title search of the
863timeshare interest identifying any junior interestholders of
864record, and the effective date of the title search must be a
865date that is within 60 calendar days before the date of the
866affidavit.
867     2.  The affidavit shall also state the facts that establish
868that the obligor has defaulted in the obligation to make a
869payment under a specified provision of the mortgage or is
870otherwise deemed in uncured default under a specified provision
871of the mortgage.
872     3.  The affidavit shall also specify the amounts secured by
873the lien as of the date of the affidavit and a per diem amount
874to account for further accrual of the amounts secured by the
875lien.
876     4.  The affidavit shall also state that the appropriate
877amount of documentary stamp tax and intangible taxes has been
878paid upon recording of the mortgage, or otherwise paid to the
879state.
880     5.  The affidavit shall also state that the lienholder is
881the holder of the note and has complied with all preconditions
882in the note and mortgage to determine the amounts secured by the
883lien and to initiate the use of the trustee foreclosure
884procedure.
885     (3)  OBLIGOR'S RIGHTS.-
886     (a)  The obligor may object to the lienholder's use of the
887trustee foreclosure procedure for a specific default any time
888before the sale of the timeshare interest under subsection (7)
889by delivering a written objection to the trustee using the
890objection form provided for in subsection (5). If the trustee
891receives the written objection from the obligor, the trustee may
892not proceed with the trustee foreclosure procedure as to the
893default specified in the notice of default and intent to
894foreclose under subsection (5), and the lienholder may proceed
895thereafter only with a judicial foreclosure action as to that
896specified default.
897     (b)  At any time before the trustee issues the certificate
898of sale under paragraph (7)(f), the obligor may cure the default
899and redeem the timeshare interest by paying the amounts secured
900by the lien in cash or certified funds to the trustee. After the
901trustee issues the certificate of sale, there is no right of
902redemption.
903     (4)  CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A
904trustee may sell an encumbered timeshare interest foreclosed
905under this section if:
906     (a)  The trustee has received the affidavit from the
907lienholder under paragraph (2)(c);
908     (b)  The trustee has not received a written objection to
909the use of the trustee foreclosure procedure under paragraph
910(3)(a) and the timeshare interest was not redeemed under
911paragraph (3)(b);
912     (c)  There is no lis pendens recorded and pending against
913the same timeshare interest, and the trustee has not been served
914notice of the filing of any action to enjoin the trustee
915foreclosure sale;
916     (d)  The trustee is in possession of the original
917promissory note executed by the mortgagor and secured by the
918mortgage lien;
919     (e)  The trustee has provided written notice of default and
920intent to foreclose as required under subsection (5) and a
921period of at least 30 calendar days has elapsed after such
922notice is deemed perfected under subsection (5); and
923     (f)  The notice of sale required under subsection (6) has
924been recorded in the official records of the county in which the
925mortgage was recorded.
926     (5)  NOTICE OF DEFAULT AND INTENT TO FORECLOSE.-
927     (a)  In any foreclosure proceeding under this section, the
928trustee is required to notify the obligor of the proceeding by
929sending the obligor a written notice of default and intent to
930foreclose to the notice address of the obligor by certified
931mail, registered mail, or permitted delivery service, return
932receipt requested, and by first-class mail or permitted delivery
933service, postage prepaid, as follows:
934     1.  The notice of default and intent to foreclose shall
935identify the obligor, the notice address of the obligor, the
936legal description of the timeshare interest, the nature of the
937default, the amounts secured by the lien, and a per diem amount
938to account for further accrual of the amounts secured by the
939lien and shall state the method by which the obligor may cure
940the default, including the period of time after the date of the
941notice of default and intent to foreclose within which the
942obligor may cure the default.
943     2.  The notice of default and intent to foreclose shall
944include an objection form with which the obligor can object to
945the use of the trustee foreclosure procedure by signing and
946returning the objection form to the trustee. The objection form
947shall identify the obligor, the notice address of the obligor,
948the timeshare interest, and the return address of the trustee
949and shall state: "The undersigned obligor exercises the
950obligor's right to object to the use of the trustee foreclosure
951procedure contained in section 721.856, Florida Statutes."
952     3.  The notice of default and intent to foreclose shall
953also contain a statement in substantially the following form:
954
955If you fail to cure the default as set forth in this
956notice or take other appropriate action with regard to
957this foreclosure matter, you risk losing ownership of
958your timeshare interest through the trustee
959foreclosure procedure established in section 721.856,
960Florida Statutes. You may choose to sign and send to
961the trustee the enclosed objection form, exercising
962your right to object to the use of the trustee
963foreclosure procedure. Upon the trustee's receipt of
964your signed objection form, the foreclosure of the
965lien with respect to the default specified in this
966notice shall be subject to the judicial foreclosure
967procedure only. You have the right to cure your
968default in the manner set forth in this notice at any
969time before the trustee's sale of your timeshare
970interest. If you do not object to the use of the
971trustee foreclosure procedure, you will not be subject
972to a deficiency judgment even if the proceeds from the
973sale of your timeshare interest are insufficient to
974offset the amounts secured by the lien.
975
976     4.  The trustee shall also mail a copy of the notice of
977default and intent to foreclose, without the objection form, to
978the notice address of any junior interestholder by certified
979mail, registered mail, or permitted delivery service, return
980receipt requested, and by first-class mail or permitted delivery
981service, postage prepaid.
982     5.  Notice under this paragraph is considered perfected
983upon the trustee receiving the return receipt bearing the
984signature of the obligor or junior interestholder, as
985applicable, within 30 calendar days after the trustee sent the
986notice under this paragraph. Notice under this paragraph is not
987perfected if the notice is returned as undeliverable within 30
988calendar days after the trustee sent the notice, if the trustee
989cannot ascertain from the receipt that the obligor or junior
990interestholder, as applicable, is the person who signed the
991receipt, or if the receipt from the obligor or junior
992interestholder, as applicable, is returned or refused within 30
993calendar days after the trustee sent the notice.
994     (b)  If the notice required by paragraph (a) is returned as
995undeliverable within 30 calendar days after the trustee sent the
996notice, the trustee shall perform a diligent search and inquiry
997to obtain a different address for the obligor or junior
998interestholder. For purposes of this paragraph, any address
999known and used by the lienholder for sending regular mailings or
1000other communications from the lienholder to the obligor or
1001junior interestholder, as applicable, shall be included with
1002other addresses produced from the diligent search and inquiry,
1003if any.
1004     1.  If the trustee's diligent search and inquiry produces
1005an address different from the notice address, the trustee shall
1006mail a copy of the notice by certified mail, registered mail, or
1007permitted delivery service, return receipt requested, and by
1008first-class mail or permitted delivery service, postage prepaid,
1009to the new address. Notice under this subparagraph is considered
1010perfected upon the trustee receiving the return receipt bearing
1011the signature of the obligor or junior interestholder, as
1012applicable, within 30 calendar days after the trustee sent the
1013notice under this subparagraph. Notice under this subparagraph
1014is not perfected if the trustee cannot ascertain from the
1015receipt that the obligor or junior interestholder, as
1016applicable, is the person who signed the receipt or the receipt
1017from the obligor or junior interestholder, as applicable, is
1018returned refused. If the trustee does not perfect notice under
1019this subparagraph, the trustee shall perfect service in the
1020manner set forth in paragraph (c).
1021     2.  If the trustee's diligent search and inquiry does not
1022locate a different address for the obligor or junior
1023interestholder, as applicable, the trustee may perfect notice
1024against that person under paragraph (c).
1025     (c)  If the notice is not perfected under subparagraph
1026(a)5., and such notice was not returned as undeliverable, or if
1027the notice was not perfected under subparagraph (b)1., the
1028trustee may perfect notice by publication in a newspaper of
1029general circulation in the county or counties in which the
1030timeshare interest is located. The notice shall appear at least
1031once a week for 2 consecutive weeks. The trustee may group an
1032unlimited number of notices in the same publication, if all of
1033the notices pertain to the same timeshare plan. Notice under
1034this paragraph is considered perfected upon publication as
1035required in this paragraph.
1036     (d)  If notice is perfected under subparagraph (a)5., the
1037trustee shall execute an affidavit in recordable form setting
1038forth the manner in which notice was perfected and attach the
1039affidavit to the certificate of compliance set forth in
1040subsection (9). The affidavit shall state the nature of the
1041notice, the date on which the notice was mailed, the name and
1042address on the envelope containing the notice, the manner in
1043which the notice was mailed, and the basis for that knowledge.
1044     (e)  If notice is perfected under subparagraph (b)1., the
1045trustee shall execute an affidavit in recordable form setting
1046forth the manner in which notice was perfected and attach the
1047affidavit to the certificate of compliance set forth in
1048subsection (9). The affidavit shall state the nature of the
1049notice, the dates on which the notice was mailed, the name and
1050addresses on the envelopes containing the notice, the manner in
1051which the notice was mailed, the fact that a signed receipt from
1052the certified mail, registered mail, or permitted delivery
1053service was timely received, and the name and address on the
1054envelopes containing the notice.
1055     (f)  If notice is perfected under paragraph (c), the
1056trustee shall execute an affidavit in recordable form setting
1057forth the manner in which notice was perfected and attach the
1058affidavit to the certificate of compliance set forth in
1059subsection (9). The affidavit shall include all the information
1060contained in either paragraph (d) or paragraph (e), as
1061applicable, shall state that the notice was perfected by
1062publication after diligent search and inquiry was made for the
1063current address for the person, shall include a statement that
1064notice was perfected by publication, and shall set forth the
1065information required by s. 49.041 in the case of a natural
1066person or s. 49.051 in the case of a corporation, whichever is
1067applicable. No other action of the trustee is necessary to
1068perfect notice.
1069     (6)  NOTICE OF SALE.-
1070     (a)  The notice of sale shall set forth:
1071     1.  The name and notice addresses of the obligor and any
1072junior interestholder.
1073     2.  The legal description of the timeshare interest.
1074     3.  The name and address of the trustee.
1075     4.  A description of the default that is the basis for the
1076foreclosure.
1077     5.  The official records book and page numbers where the
1078mortgage is recorded.
1079     6.  The amounts secured by the lien and a per diem amount
1080to account for further accrual of the amounts secured by the
1081lien.
1082     7.  The date, location, and starting time of the trustee's
1083sale.
1084     8.  The right of and the method by which the obligor may
1085cure the default or the right of any junior interestholder to
1086redeem its interest up to the date the trustee issues the
1087certificate of sale in accordance with paragraph (7)(f).
1088     (b)  The trustee shall send a copy of the notice of sale
1089within 3 business days after the date it is submitted for
1090recording, by first-class mail or permitted delivery service,
1091postage prepaid, to the notice addresses of the obligor and any
1092junior interestholder.
1093     (c)  After the date of recording of the notice of sale,
1094notice is not required to be given to any person claiming an
1095interest in the timeshare interest except as provided in this
1096section. The recording of the notice of sale has the same force
1097and effect as the filing of a lis pendens in a judicial
1098proceeding under s. 48.23.
1099     (d)1.  The trustee shall publish the notice of sale in a
1100newspaper of general circulation in the county or counties in
1101which the timeshare interest is located at least once a week for
11022 consecutive weeks before the date of the sale. The last
1103publication shall occur at least 5 calendar days before the
1104sale.
1105     2.  The trustee may group an unlimited number of notices of
1106sale in the same publication, if all of the notices of sale
1107pertain to the same timeshare plan.
1108     (7)  MANNER OF SALE.-
1109     (a)  The sale of a timeshare interest by the trustee in a
1110public auction shall be held in the county in which the
1111timeshare interest is located, on the date, location, and
1112starting time designated in the notice of sale, which shall be
1113after 9:00 a.m. but before 4:00 p.m. on a business day not less
1114than 30 calendar days after the recording of the notice of sale.
1115The trustee's sale may occur online at a specific website on the
1116Internet or in any other manner used by the clerk of the court
1117for a judicial foreclosure sales procedure in the county or
1118counties in which the timeshare interest is located.
1119     (b)  The trustee shall conduct the sale and act as the
1120auctioneer.
1121     (c)  The lienholder and any person other than the trustee
1122may bid at the sale. In lieu of participating in the sale, the
1123lienholder may send the trustee written bidding instructions
1124that the trustee shall announce as appropriate during the sale.
1125     (d)  The trustee may postpone the sale from time to time.
1126In such case, notice of postponement must be given by the
1127trustee at the date, time, and location contained in the notice
1128of sale. The notice of sale for the postponed sale shall be
1129mailed under paragraph (6)(b), recorded under paragraph (4)(f),
1130and published under paragraph (6)(d). The effective date of the
1131initial notice of sale under paragraph (6)(b) is not affected by
1132a postponed sale.
1133     (e)  The highest bidder of the timeshare interest shall pay
1134the price bid to the trustee in cash or certified funds on the
1135day of the sale. If the lienholder is the highest bidder, the
1136lienholder shall receive a credit up to the amount set forth in
1137the notice of sale as required under subparagraph (6)(a)6.
1138     (f)  On the date of the sale and upon receipt of the cash
1139or certified funds due from the highest bidder, the trustee
1140shall issue to the highest bidder a certificate of sale stating
1141that a foreclosure conforming to the requirements of this
1142section has occurred, including the time, location, and date of
1143the sale, that the timeshare interest was sold, the amounts
1144secured by the lien, and the amount of the highest bid. A copy
1145of the certificate of sale shall be mailed by certified mail,
1146registered mail, or permitted delivery service, return receipt
1147requested, to all persons entitled to receive a notice of sale
1148under subsection (6).
1149     (g)  Before a sale conducted pursuant to this subsection, a
1150junior interestholder may pursue adjudication by court, by
1151interpleader, or in any other authorized manner respecting any
1152matter that is disputed by the junior interestholder.
1153     (8)  EFFECT OF TRUSTEE'S SALE.-
1154     (a)  A sale conducted under subsection (7) forecloses and
1155terminates all interests of any person with notice to whom
1156notice is given under paragraph (4)(e) and paragraph (6)(b), and
1157of any other person claiming interests by, through, or under any
1158such person, in the affected timeshare interest. A failure to
1159give notice to any person entitled to notice does not affect the
1160validity of the sale as to the interests of any person properly
1161notified. A person entitled to notice but not given notice has
1162the rights of a person not made a defendant in a judicial
1163foreclosure.
1164     (b)  On the issuance of a certificate of sale under
1165paragraph (7)(f), all rights of redemption that have been
1166foreclosed under this section shall terminate.
1167     (c)  A sale conducted under subsection (7) releases the
1168obligor's liability for all amounts secured by the lien. The
1169lienholder has no right to any deficiency judgment against the
1170obligor after a sale of the obligor's timeshare interest under
1171this section.
1172     (d)  The issuance and recording of the trustee's deed is
1173presumed valid and may be relied upon by third parties without
1174actual knowledge of any irregularities in the foreclosure
1175proceedings. If for any reason there is an irregularity in the
1176foreclosure proceedings, a purchaser becomes subrogated to all
1177the rights of the lienholder to the indebtedness that it secured
1178to the extent necessary to reforeclose the mortgage lien in
1179order to correct the irregularity and becomes entitled to an
1180action de novo for the foreclosure of such mortgage lien. Any
1181subsequent reforeclosure required to correct an irregularity may
1182be conducted under this section.
1183     (9)  TRUSTEE'S CERTIFICATE OF COMPLIANCE.-
1184     (a)  Within 10 calendar days after the trustee conducts a
1185sale, the trustee shall execute and acknowledge a certificate of
1186compliance which:
1187     1.  Confirms delivery of the notice of default and intent
1188to foreclose and attaches the affidavit required under
1189subsection (5).
1190     2.  States that the default was not cured, that the trustee
1191did not receive any written objection under paragraph (3)(a),
1192and that the timeshare interest was not redeemed under paragraph
1193(3)(b).
1194     3.  States that the trustee is in possession of the
1195original promissory note executed by the mortgagor and secured
1196by the mortgage lien.
1197     4.  Confirms that the notice of sale was published as
1198required under paragraph (6)(d) and attaches an affidavit of
1199publication for the notice of sale.
1200     5.  Confirms that the notice of sale was mailed under
1201paragraph (6)(b) together with a list of the parties to whom the
1202notice of sale was mailed.
1203     (b)  In furtherance of the execution of the certificate of
1204compliance required under this subsection, the trustee is
1205entitled to rely upon an affidavit or certification from the
1206lienholder as to the facts and circumstances of default and
1207failure to cure the default.
1208     (10)  TRUSTEE'S DEED.-
1209     (a)  The trustee's deed shall include the name and address
1210of the trustee, the name and address of the highest bidder, the
1211name of the former owner, a legal description of the timeshare
1212interest, and the name and address of the preparer of the
1213trustee's deed. The trustee's deed shall recite that the
1214certificate of compliance was recorded and shall contain no
1215warranties of title from the trustee. The certificate of
1216compliance shall be attached as an exhibit to the trustee's
1217deed.
1218     (b)  Ten calendar days after a sale, absent the prior
1219filing and service on the trustee of a judicial action to enjoin
1220issuance of the trustee's deed to the timeshare interest, the
1221trustee shall:
1222     1.  Cancel the original promissory note executed by the
1223mortgagor and secured by the mortgage lien.
1224     2.  Issue a trustee's deed to the highest bidder.
1225     3.  Record the trustee's deed in the official records of
1226the county or counties in which the timeshare interest is
1227located.
1228     (c)1.  The certificate of compliance and trustee's deed
1229together are presumptive evidence of the truth of the matters
1230set forth in them, and an action to set aside the sale and void
1231the trustee's deed may not be filed or otherwise pursued against
1232any person acquiring the timeshare interest for value.
1233     2.  The trustee's deed conveys to the highest bidder all
1234rights, title, and interest in the timeshare interest that the
1235former owner had, or had the power to convey, together with all
1236rights, title, and interest that the former owner or his or her
1237successors in interest acquired after the execution of the
1238mortgage.
1239     3.  The issuance and recording of a trustee's deed shall
1240have the same force and effect as the issuance and recording of
1241a certificate of title by the clerk of the court in a judicial
1242foreclosure action.
1243     (11)  DISPOSITION OF PROCEEDS OF SALE.-
1244     (a)  The trustee shall apply the proceeds of the sale as
1245follows:
1246     1.  To the expenses of the sale, including compensation of
1247the trustee.
1248     2.  To the amount owed and set forth in the notice as
1249required under subparagraph (6)(a)6.
1250     3.  If there are junior interestholders, the trustee may
1251file an action in interpleader, pay the surplus to a court of
1252competent jurisdiction, name the competing junior
1253interestholders, and ask the court to determine the proper
1254distribution of the surplus. In any interpleader action, the
1255trustee shall recover reasonable attorney's fees and costs.
1256     4.  If there are no junior interestholders, or if all
1257junior interestholders have been paid, any surplus shall be paid
1258to the former owner. If the trustee is unable to locate the
1259former owner within 1 year after the sale, the surplus, if any,
1260shall be deposited with the Chief Financial Officer under
1261chapter 717.
1262     (b)  In disposing of the proceeds of the sale, the trustee
1263may rely on the information provided in the affidavit of the
1264lienholder under paragraph (2)(c) and, in the event of a dispute
1265or uncertainty over such claims, the trustee has the discretion
1266to submit the matter to adjudication by court, by interpleader,
1267or in any other authorized manner and shall recover reasonable
1268attorney's fees and costs.
1269     (12)  JUDICIAL FORECLOSURE ACTIONS.-The trustee foreclosure
1270procedure established in this section does not impair or
1271otherwise affect the lienholder's continuing right to bring a
1272judicial foreclosure action, in lieu of using the trustee
1273foreclosure procedure, with respect to any mortgage lien.
1274     (13)  ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
1275PROCEDURE.-An action for actual damages for a material violation
1276of this section may be brought by an obligor against the
1277lienholder for the failure to follow the trustee foreclosure
1278procedure contained in this section.
1279     Section 11.  Subsections (1) and (4) of section 721.86,
1280Florida Statutes, are amended to read:
1281     721.86  Miscellaneous provisions.-
1282     (1)  In the event of a conflict between the provisions of
1283this part and the other provisions of this chapter, chapter 702,
1284or other applicable law, the provisions of this part shall
1285prevail. The procedures in this part must be given effect in the
1286context of any foreclosure proceedings against timeshare
1287interests estates governed by this chapter, chapter 702, chapter
1288718, or chapter 719.
1289     (4)  In addition to assessment liens and mortgage liens
1290arising after the effective date of this part, except as
1291provided in s. 721.855(13), the provisions of this part apply to
1292all assessment liens and mortgage liens existing prior to the
1293effective date of this act regarding which a foreclosure
1294proceeding has not yet commenced.
1295     Section 12.  Subsection (2) of section 721.20, Florida
1296Statutes, is amended to read:
1297     721.20  Licensing requirements; suspension or revocation of
1298license; exceptions to applicability; collection of advance fees
1299for listings unlawful.-
1300     (2)  Solicitors who engage only in the solicitation of
1301prospective purchasers and any purchaser who refers no more than
130220 people to a developer or managing entity per year or who
1303otherwise provides testimonials on behalf of a developer or
1304managing entity are exempt from the provisions of chapter 475.
1305     Section 13.  Subsection (5) is added to section 727.113,
1306Florida Statutes, to read:
1307     727.113  Objections to claims.-
1308     (5)  In determining the amount of any deficiency pursuant
1309to subsection (4) that may exist with respect to property
1310abandoned to a secured creditor, the court shall determine the
1311amount of any such deficiency as of the date of the assignee's
1312motion to abandon or notice of abandonment by deducting the fair
1313market value of the abandoned property from the amount owed to
1314the secured creditor. This subsection is remedial in nature and
1315shall apply to cases pending on the effective date of this act.
1316     Section 14.  This act shall take effect upon becoming a
1317law.


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