| 1 | A bill to be entitled |
| 2 | An act relating to foreclosures; amending s. 721.07, F.S.; |
| 3 | providing lien disclosure requirements for filed public |
| 4 | offering statements for certain timeshare plans; amending |
| 5 | s. 721.13, F.S.; requiring officers, directors, and agents |
| 6 | of a timeshare owners' association to act in good faith; |
| 7 | providing for damages; providing exceptions; amending s. |
| 8 | 721.16, F.S.; authorizing a managing entity to bring a |
| 9 | judicial action or a trustee procedure to foreclose |
| 10 | certain liens under specified conditions; revising when a |
| 11 | lien is effective; renaming part III of chapter 721, F.S., |
| 12 | to conform to changes made by this act; amending s. |
| 13 | 721.81, F.S.; revising and providing legislative purposes |
| 14 | of the part; amending s. 721.82 F.S.; revising and |
| 15 | providing definitions; amending s. 721.83, F.S., relating |
| 16 | to consolidation of foreclosure actions; clarifying |
| 17 | application to judicial foreclosure actions; amending s. |
| 18 | 721.85, F.S., relating to service to notice address or on |
| 19 | registered agent; conforming provisions to changes made by |
| 20 | this act; creating s. 721.855, F.S.; establishing |
| 21 | procedure for the trustee foreclosure of assessment liens; |
| 22 | providing for the appointment of a trustee; providing |
| 23 | recording requirements for such liens; providing |
| 24 | procedures for the initiation of a trustee foreclosure |
| 25 | procedure against a timeshare interest; providing |
| 26 | procedures for an obligor's objection to the trustee |
| 27 | foreclosure procedure; providing conditions to a trustee's |
| 28 | exercise of power of sale; providing requirements for a |
| 29 | notice of default and intent to sell; providing |
| 30 | requirements for a notice of sale; providing requirements |
| 31 | for the sale by auction of foreclosed encumbered timeshare |
| 32 | interests; providing requirements for a trustee's |
| 33 | certificate of compliance; providing for the effect of a |
| 34 | trustee's sale; providing requirements for a trustee's |
| 35 | deed; providing for the disposition of proceeds of the |
| 36 | sale; providing that the trustee foreclosure procedure |
| 37 | does not impair or otherwise affect the right to bring |
| 38 | certain actions; providing application; providing for |
| 39 | actions for failure to follow the trustee foreclosure |
| 40 | procedure; providing a criminal penalty; creating s. |
| 41 | 721.856, F.S.; establishing procedure for the trustee |
| 42 | foreclosure of mortgage liens; providing for the |
| 43 | appointment of a trustee; providing recording requirements |
| 44 | for such liens; providing procedures for the initiation of |
| 45 | a trustee foreclosure procedure against a timeshare |
| 46 | interest; providing procedures for an obligor's objection |
| 47 | to the trustee foreclosure procedure; providing conditions |
| 48 | to a trustee's exercise of power of sale; providing |
| 49 | requirements for a notice of default and intent to sell; |
| 50 | providing requirements for a notice of sale; providing |
| 51 | requirements for the sale by auction of foreclosed |
| 52 | encumbered timeshare interests; providing requirements for |
| 53 | a trustee's certificate of compliance; providing for the |
| 54 | effect of a trustee's sale; providing requirements for a |
| 55 | trustee's deed; providing for the disposition of proceeds |
| 56 | of the sale; providing that the trustee foreclosure |
| 57 | procedure does not impair or otherwise affect the right to |
| 58 | bring certain actions; providing for actions for failure |
| 59 | to follow the trustee foreclosure procedure; providing a |
| 60 | criminal penalty; amending s. 721.86, F.S.; providing for |
| 61 | priority of application in case of conflict; conforming |
| 62 | terminology to changes made by this act; amending s. |
| 63 | 721.20, F.S.; revising exemptions from certain licensing |
| 64 | requirements; providing an effective date. |
| 65 |
|
| 66 | Be It Enacted by the Legislature of the State of Florida: |
| 67 |
|
| 68 | Section 1. Paragraph (jj) is added to subsection (5) of |
| 69 | section 721.07, Florida Statutes, to read: |
| 70 | 721.07 Public offering statement.-Prior to offering any |
| 71 | timeshare plan, the developer must submit a filed public |
| 72 | offering statement to the division for approval as prescribed by |
| 73 | s. 721.03, s. 721.55, or this section. Until the division |
| 74 | approves such filing, any contract regarding the sale of that |
| 75 | timeshare plan is subject to cancellation by the purchaser |
| 76 | pursuant to s. 721.10. |
| 77 | (5) Every filed public offering statement for a timeshare |
| 78 | plan which is not a multisite timeshare plan shall contain the |
| 79 | information required by this subsection. The division is |
| 80 | authorized to provide by rule the method by which a developer |
| 81 | must provide such information to the division. |
| 82 | (jj) The following statement in conspicuous type: |
| 83 |
|
| 84 | The managing entity has a lien against each timeshare |
| 85 | interest to secure the payment of assessments, ad |
| 86 | valorem assessments, tax assessments, and special |
| 87 | assessments. Your failure to make any required |
| 88 | payments may result in the judicial or trustee |
| 89 | foreclosure of an assessment lien and the loss of your |
| 90 | timeshare interest. If the managing entity initiates a |
| 91 | trustee foreclosure procedure, you shall have the |
| 92 | option to object to the use of the trustee foreclosure |
| 93 | procedure and the managing entity may only proceed by |
| 94 | filing a judicial foreclosure action. |
| 95 | Section 2. Subsection (13) is added to section 721.13, |
| 96 | Florida Statutes, to read: |
| 97 | 721.13 Management.- |
| 98 | (13) Notwithstanding any provisions of chapter 607, |
| 99 | chapter 617, or chapter 718, an officer, director, or agent of |
| 100 | an owners' association shall discharge his or her duties in good |
| 101 | faith, with the care an ordinarily prudent person in a like |
| 102 | position would exercise under similar circumstances, and in a |
| 103 | manner he or she reasonably believes to be in the interests of |
| 104 | the owners' association. An officer, director, or agent of an |
| 105 | owners' association shall be exempt from liability for monetary |
| 106 | damages in the same manner as provided in s. 617.0834 unless |
| 107 | such officer, director, or agent breached or failed to perform |
| 108 | his or her duties and the breach of, or failure to perform, his |
| 109 | or her duties constitutes a violation of criminal law as |
| 110 | provided in s. 617.0834; constitutes a transaction from which |
| 111 | the officer or director derived an improper personal benefit, |
| 112 | either directly or indirectly; or constitutes recklessness or an |
| 113 | act or omission that was in bad faith, with malicious purpose, |
| 114 | or in a manner exhibiting wanton and willful disregard of human |
| 115 | rights, safety, or property. |
| 116 | Section 3. Subsections (2) and (3) of section 721.16, |
| 117 | Florida Statutes, are amended to read: |
| 118 | 721.16 Liens for overdue assessments; liens for labor |
| 119 | performed on, or materials furnished to, a timeshare unit.- |
| 120 | (2) The managing entity may bring a judicial an action in |
| 121 | its name to foreclose a lien under subsection (1) in the manner |
| 122 | a mortgage of real property is foreclosed and may also bring an |
| 123 | action to recover a money judgment for the unpaid assessments |
| 124 | without waiving any claim of lien. As an alternative to |
| 125 | initiating a judicial action, the managing entity may initiate a |
| 126 | trustee procedure to foreclose an assessment lien under s. |
| 127 | 721.855. |
| 128 | (3) The lien is effective from the date of recording a |
| 129 | claim of lien in the official public records of the county or |
| 130 | counties in which the timeshare interest is accommodations and |
| 131 | facilities constituting the timeshare plan are located. The |
| 132 | claim of lien shall state the name of the timeshare plan and |
| 133 | identify the timeshare interest for which the lien is effective, |
| 134 | state the name of the purchaser, state the assessment amount |
| 135 | due, and state the due dates. Notwithstanding any provision of |
| 136 | s. 718.116(5)(a) or s. 719.108(4) to the contrary, the lien is |
| 137 | effective until satisfied or until 5 years have expired after |
| 138 | the date the claim of lien is recorded unless, within that time, |
| 139 | an action to enforce the lien is commenced pursuant to |
| 140 | subsection (2). A claim of lien for assessments may include only |
| 141 | assessments which are due when the claim is recorded. A claim of |
| 142 | lien shall be signed and acknowledged by an officer or agent of |
| 143 | the managing entity. Upon full payment, the person making the |
| 144 | payment is entitled to receive a satisfaction of the lien. |
| 145 | Section 4. Part III of chapter 721, Florida Statutes, |
| 146 | entitled "Foreclosure of Liens on Timeshare Estates," is renamed |
| 147 | "Foreclosure of Liens on Timeshare Interests." |
| 148 | Section 5. Section 721.81, Florida Statutes, is amended to |
| 149 | read: |
| 150 | 721.81 Legislative purpose.-The purposes of this part are |
| 151 | to: |
| 152 | (1) Recognize that timeshare interests estates are parcels |
| 153 | of real property used for vacation experience rather than for |
| 154 | homestead or investment purposes and that there are numerous |
| 155 | timeshare interests estates in this the state. |
| 156 | (2) Recognize that the economic health and efficient |
| 157 | operation of the vacation ownership industry are in part |
| 158 | dependent upon the availability of an efficient and economical |
| 159 | process for all timeshare interest foreclosures foreclosure. |
| 160 | (3) Recognize the need to assist both owners' associations |
| 161 | and mortgagees by simplifying and expediting the process for the |
| 162 | judicial and trustee of foreclosure of assessment liens and |
| 163 | mortgage liens against timeshare interests estates. |
| 164 | (4) Improve judicial economy and reduce court congestion |
| 165 | and the cost to taxpayers by establishing streamlined procedures |
| 166 | for the judicial and trustee foreclosure of assessment liens and |
| 167 | mortgage liens against timeshare interests estates. |
| 168 | (5) Recognize that nearly all timeshare interest |
| 169 | foreclosures are uncontested. |
| 170 | (6) Protect the ability of consumers who own timeshare |
| 171 | interests located in this state to choose a judicial proceeding |
| 172 | for the foreclosure of an assessment lien or a mortgage lien |
| 173 | against their timeshare interest. |
| 174 | (7) Recognize that the use of the trustee foreclosure |
| 175 | procedure established under ss. 721.855 and 721.856 shall have |
| 176 | the same force and effect as the use of the judicial foreclosure |
| 177 | procedure against a timeshare interest with respect to the |
| 178 | provisions of this chapter or any other applicable law. However, |
| 179 | obligors shall not be subject to a deficiency judgment even if |
| 180 | the proceeds from the sale of the timeshare interest are |
| 181 | insufficient to offset the amounts secured by the lien. |
| 182 | Section 6. Section 721.82, Florida Statutes, is amended to |
| 183 | read: |
| 184 | 721.82 Definitions.-As used in this part, the term: |
| 185 | (1) "Amounts secured by the lien" means all amounts |
| 186 | secured by an assessment lien or mortgage lien, including, but |
| 187 | not limited to, all past due amounts, accrued interest, late |
| 188 | fees, taxes, advances for the payment of taxes, insurance and |
| 189 | maintenance of the timeshare interest, and any fees or costs |
| 190 | incurred by the lienholder or trustee, including any reasonable |
| 191 | attorney's fees, trustee's fees, and costs incurred in |
| 192 | connection with the default. |
| 193 | (2)(1) "Assessment lien" means: |
| 194 | (a) A lien for delinquent assessments as provided in ss. |
| 195 | 721.16, 718.116, and 719.108, and 721.16 as to timeshare |
| 196 | condominiums; or |
| 197 | (b) A lien for unpaid ad valorem assessments, tax |
| 198 | assessments, taxes and special assessments as provided in s. |
| 199 | 192.037(8). |
| 200 | (3)(2) "Junior interestholder" means any person who has a |
| 201 | lien or interest of record against a timeshare interest estate |
| 202 | in the county or counties in which the timeshare interest estate |
| 203 | is located, which is inferior to the mortgage lien or assessment |
| 204 | lien being foreclosed under this part. |
| 205 | (4)(3) "Lienholder" means a holder of an assessment lien |
| 206 | or a holder of a mortgage lien, as applicable. A receiver |
| 207 | appointed under s. 721.26 is a lienholder for purposes of |
| 208 | foreclosure of assessment liens under this part. |
| 209 | (5)(4) "Mortgage" has the same meaning set forth in s. |
| 210 | 697.01. |
| 211 | (6)(5) "Mortgage lien" means a security interest in a |
| 212 | timeshare interest estate created by a mortgage encumbering the |
| 213 | timeshare interest estate. |
| 214 | (7)(6) "Mortgagee" means a person holding a mortgage lien. |
| 215 | (8)(7) "Mortgagor" means a person granting a mortgage lien |
| 216 | or a person who has assumed the obligation secured by a mortgage |
| 217 | lien. |
| 218 | (9)(8) "Notice address" means: |
| 219 | (a) As to an assessment lien, the address of the current |
| 220 | owner of a timeshare interest estate as reflected by the books |
| 221 | and records of the timeshare plan under ss. 721.13(4) and |
| 222 | 721.15(7). |
| 223 | (b) As to a mortgage lien: |
| 224 | 1. The address of the mortgagor as set forth in the |
| 225 | mortgage, the promissory note or a separate document executed by |
| 226 | the mortgagor at the time the mortgage lien was created, or the |
| 227 | most current address of the mortgagor according to the records |
| 228 | of the mortgagee; and |
| 229 | 2. If the current owner of the timeshare interest estate |
| 230 | is different from the mortgagor, the address of the current |
| 231 | owner of the timeshare interest estate as reflected by the books |
| 232 | and records of the mortgagee. |
| 233 | (c) As to a junior interestholder, the address as set |
| 234 | forth in the recorded instrument creating the junior lien |
| 235 | interest or interest lien, or in any recorded amendment |
| 236 | supplement thereto changing the address, or in any written |
| 237 | notification by the junior interestholder to the foreclosing |
| 238 | lienholder changing the of such change in address. |
| 239 | (10)(9) "Obligor" means the mortgagor, the person subject |
| 240 | to an assessment lien, or the record owner of the timeshare |
| 241 | interest estate. |
| 242 | (11) "Permitted delivery service" means any nationally |
| 243 | recognized common carrier delivery service or international |
| 244 | airmail service that allows for return receipt service. |
| 245 | (12)(10) "Registered agent" means an agent duly appointed |
| 246 | by the obligor under s. 721.84 for the purpose of accepting all |
| 247 | notices and service of process under this part. A registered |
| 248 | agent may be an individual resident in this state whose business |
| 249 | office qualifies as a registered office, or a domestic or |
| 250 | foreign corporation or a not-for-profit corporation as defined |
| 251 | in chapter 617 authorized to transact business or to conduct its |
| 252 | affairs in this state, whose business office qualifies as a |
| 253 | registered office. A registered agent for any obligor may not be |
| 254 | the lienholder or the attorney for the lienholder. |
| 255 | (13)(11) "Registered office" means the street address of |
| 256 | the business office of the registered agent appointed under s. |
| 257 | 721.84, located in this state. |
| 258 | (14) "Trustee" means an attorney who is a member in good |
| 259 | standing of The Florida Bar and who has been practicing law for |
| 260 | at least 5 years or that attorney's law firm, or a title insurer |
| 261 | authorized to transact business in this state under s. 624.401 |
| 262 | and who has been authorized to transact business for at least 5 |
| 263 | years, appointed as trustee or as substitute trustee in |
| 264 | accordance with s. 721.855 or s. 721.856. A receiver appointed |
| 265 | under s. 721.26 may act as a trustee under s. 721.855. A trustee |
| 266 | must be independent as defined in s. 721.05(20). |
| 267 | Section 7. Section 721.83, Florida Statutes, is amended to |
| 268 | read: |
| 269 | 721.83 Consolidation of judicial foreclosure actions.- |
| 270 | (1) A complaint in a foreclosure proceeding involving |
| 271 | timeshare interests estates may join in the same action multiple |
| 272 | defendant obligors and junior interestholders of separate |
| 273 | timeshare interests estates, provided: |
| 274 | (a) The foreclosure proceeding involves a single timeshare |
| 275 | property. |
| 276 | (b) The foreclosure proceeding is filed by a single |
| 277 | plaintiff. |
| 278 | (c) The default and remedy provisions in the written |
| 279 | instruments on which the foreclosure proceeding is based are |
| 280 | substantially the same for each defendant. |
| 281 | (d) The nature of the defaults alleged is the same for |
| 282 | each defendant. |
| 283 | (e) No more than 15 timeshare interests estates, without |
| 284 | regard to the number of defendants, are joined within the same |
| 285 | consolidated foreclosure action. |
| 286 | (2) In any foreclosure proceeding involving multiple |
| 287 | defendants filed under subsection (1), the court shall sever for |
| 288 | separate trial any count of the complaint in which a defense or |
| 289 | counterclaim is timely raised by a defendant. |
| 290 | (3) A consolidated timeshare foreclosure action shall be |
| 291 | considered a single action, suit, or proceeding for the payment |
| 292 | of filing fees and service charges pursuant to general law. In |
| 293 | addition to the payment of such filing fees and service charges, |
| 294 | an additional filing fee of up to $10 for each timeshare |
| 295 | interest estate joined in that action shall be paid to the clerk |
| 296 | of court. |
| 297 | Section 8. Section 721.85, Florida Statutes, is amended to |
| 298 | read: |
| 299 | 721.85 Service to notice address or on registered agent.- |
| 300 | (1) Service of process for a foreclosure proceeding |
| 301 | involving a timeshare interest estate may be made by any means |
| 302 | recognized by law. In addition, substituted service on an |
| 303 | obligor a party who has appointed a registered agent under s. |
| 304 | 721.84 may be made on such registered agent at the registered |
| 305 | office. Also, when using s. 48.194 where in rem or quasi in rem |
| 306 | relief only is sought, such service of process provisions are |
| 307 | modified in connection with a foreclosure proceeding against a |
| 308 | timeshare interest estate to provide that: |
| 309 | (a) Such service of process may be made on any person |
| 310 | whether the person is located inside or outside this state, by |
| 311 | certified mail, or registered mail, or permitted delivery |
| 312 | service, return receipt requested, addressed to the person to be |
| 313 | served at the notice address, or on the person's party's |
| 314 | registered agent duly appointed under s. 721.84, at the |
| 315 | registered office; and |
| 316 | (b) Service shall be considered obtained upon the signing |
| 317 | of the return receipt by any person at the notice address, or by |
| 318 | the registered agent. |
| 319 | (2) The current owner and the mortgagor of a timeshare |
| 320 | interest estate must promptly notify the owners' association and |
| 321 | the mortgagee of any change of address. |
| 322 | (3) Substituted notice under s. 721.855 or s. 721.856 for |
| 323 | any party who has appointed a registered agent under s. 721.84 |
| 324 | may be made on such registered agent at the registered office. |
| 325 | Section 9. Section 721.855, Florida Statutes, is created |
| 326 | to read: |
| 327 | 721.855 Procedure for the trustee foreclosure of |
| 328 | assessment liens.-The provisions of this section establish a |
| 329 | trustee foreclosure procedure for assessment liens. |
| 330 | (1) APPOINTMENT OF TRUSTEE.- |
| 331 | (a) A trustee or a substitute trustee may be appointed by |
| 332 | a lienholder at any time by recording a notice of appointment of |
| 333 | trustee or notice of substitution of trustee in the official |
| 334 | records of the county or counties in which the timeshare |
| 335 | interest is located. A lienholder may appoint multiple trustees |
| 336 | in a single appointment, and any appointed trustee may be used |
| 337 | by the lienholder regarding the trustee foreclosure of any |
| 338 | assessment lien under any timeshare plan for which the trustee |
| 339 | is appointed. |
| 340 | (b) A trustee shall use good faith, skill, care, and |
| 341 | diligence in discharging all of the trustee duties under this |
| 342 | section and shall deal honestly and fairly with all parties. |
| 343 | (c) The recorded notice of appointment of trustee or |
| 344 | notice of substitution of trustee shall contain the name and |
| 345 | address of the trustee or substitute trustee, the name and |
| 346 | address of the lienholder, and the name and address of the |
| 347 | timeshare plan. |
| 348 | (2) INITIATING THE USE OF A TRUSTEE FORECLOSURE |
| 349 | PROCEDURE.- |
| 350 | (a) Before initiating the trustee foreclosure procedure |
| 351 | against any timeshare interest in a given timeshare plan: |
| 352 | 1. If a timeshare instrument contains any provision |
| 353 | specifically prohibiting the use of the trustee foreclosure |
| 354 | procedure, or if the managing entity otherwise determines that |
| 355 | the timeshare instrument should be amended to specifically |
| 356 | provide for the use of the trustee foreclosure procedure, an |
| 357 | amendment to the timeshare instrument permitting the use of the |
| 358 | trustee foreclosure procedure set forth in this section must be |
| 359 | adopted and recorded prior to the use of the trustee foreclosure |
| 360 | procedure. Such amendment to the timeshare instrument shall |
| 361 | contain a statement in substantially the following form and may |
| 362 | be adopted by a majority of those present and voting at a duly |
| 363 | called meeting of the owners' association at which at least 15 |
| 364 | percent of the voting interest are present in person or by |
| 365 | proxy: |
| 366 |
|
| 367 | If a timeshare owner fails to make timely payments of |
| 368 | timeshare plan common expenses, ad valorem taxes, or |
| 369 | special assessments, an assessment lien against the |
| 370 | timeshare owner's timeshare interest may be foreclosed |
| 371 | in accordance with a judicial foreclosure procedure or |
| 372 | a trustee foreclosure procedure, either of which may |
| 373 | result in the loss of the timeshare owner's timeshare |
| 374 | interest. If the managing entity initiates a trustee |
| 375 | foreclosure procedure, the timeshare owner shall have |
| 376 | the option to object pursuant to Florida law, and in |
| 377 | such event the managing entity may thereafter proceed |
| 378 | only by filing a judicial foreclosure action. |
| 379 |
|
| 380 | 2. The managing entity shall inform owners of timeshare |
| 381 | interests in the timeshare plan in writing that the managing |
| 382 | entity has the right to elect to use the trustee foreclosure |
| 383 | procedure with respect to foreclosure of assessment liens as |
| 384 | established in this section. The managing entity shall be deemed |
| 385 | to have complied with the requirements of this subparagraph if |
| 386 | the owners of timeshare interests in the given timeshare plan |
| 387 | are informed by mail sent to each owner's notice address, in the |
| 388 | notice of an annual or special meeting of the owners, by posting |
| 389 | on the website of the applicable timeshare plan, or by any owner |
| 390 | communication used by the managing entity. |
| 391 | (b) Before initiating the trustee foreclosure procedure |
| 392 | against any timeshare interest, a claim of lien against the |
| 393 | timeshare interest shall be recorded under s. 721.16 or, if |
| 394 | applicable, s. 718.116 or s. 719.108, and the notice of the |
| 395 | intent to file a lien shall be given under s. 718.121 for |
| 396 | timeshare condominiums and s. 719.108 for timeshare |
| 397 | cooperatives. |
| 398 | (c)1. In order to initiate a trustee foreclosure procedure |
| 399 | against a timeshare interest, the lienholder shall deliver an |
| 400 | affidavit to the trustee that identifies the obligor; the notice |
| 401 | address of the obligor; the timeshare interest; the date that |
| 402 | the notice of the intent to file a lien was given, if |
| 403 | applicable; the official records book and page number where the |
| 404 | claim of lien is recorded; and the name and notice address of |
| 405 | any junior interestholder. The affidavit shall be accompanied by |
| 406 | a title search of the timeshare interest identifying any junior |
| 407 | interestholders of record, and the effective date of the title |
| 408 | search must be a date that is within 60 calendar days before the |
| 409 | date of the affidavit. |
| 410 | 2. The affidavit shall also state the facts that establish |
| 411 | that the obligor has defaulted in the obligation to make a |
| 412 | payment under a specified provision of the timeshare instrument |
| 413 | or applicable law. |
| 414 | 3. The affidavit shall also specify the amounts secured by |
| 415 | the lien as of the date of the affidavit and a per diem amount |
| 416 | to account for further accrual of the amounts secured by the |
| 417 | lien. |
| 418 | 4. The affidavit shall also state that the assessment lien |
| 419 | was properly created and authorized pursuant to the timeshare |
| 420 | instrument and applicable law. |
| 421 | (3) OBLIGOR'S RIGHTS.- |
| 422 | (a) The obligor may object to the lienholder's use of the |
| 423 | trustee foreclosure procedure for a specific default any time |
| 424 | before the sale of the timeshare interest under subsection (7) |
| 425 | by delivering a written objection to the trustee using the |
| 426 | objection form provided for in subsection (5). If the trustee |
| 427 | receives the written objection from the obligor, the trustee may |
| 428 | not proceed with the trustee foreclosure procedure as to the |
| 429 | default specified in the notice of default and intent to |
| 430 | foreclose under subsection (5), and the lienholder may proceed |
| 431 | thereafter only with a judicial foreclosure action as to that |
| 432 | specified default. |
| 433 | (b) At any time before the trustee issues the certificate |
| 434 | of sale under paragraph (7)(f), the obligor may cure the default |
| 435 | and redeem the timeshare interest by paying the amounts secured |
| 436 | by the lien in cash or certified funds to the trustee. After the |
| 437 | trustee issues the certificate of sale, there is no right of |
| 438 | redemption. |
| 439 | (4) CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A |
| 440 | trustee may sell an encumbered timeshare interest foreclosed |
| 441 | under this section if: |
| 442 | (a) The trustee has received the affidavit from the |
| 443 | lienholder under paragraph (2)(c); |
| 444 | (b) The trustee has not received a written objection to |
| 445 | the use of the trustee foreclosure procedure under paragraph |
| 446 | (3)(a) and the timeshare interest was not redeemed under |
| 447 | paragraph (3)(b); |
| 448 | (c) There is no lis pendens recorded and pending against |
| 449 | the same timeshare interest and the trustee has not been served |
| 450 | notice of the filing of any action to enjoin the trustee |
| 451 | foreclosure sale; |
| 452 | (d) The trustee has provided written notice of default and |
| 453 | intent to foreclose as required under subsection (5) and a |
| 454 | period of at least 30 calendar days has elapsed after such |
| 455 | notice is deemed perfected under subsection (5); and |
| 456 | (e) The notice of sale required under subsection (6) has |
| 457 | been recorded in the official records of the county or counties |
| 458 | in which the timeshare interest is located. |
| 459 | (5) NOTICE OF DEFAULT AND INTENT TO FORECLOSE.- |
| 460 | (a) In any foreclosure proceeding under this section, the |
| 461 | trustee is required to notify the obligor of the proceeding by |
| 462 | sending the obligor a written notice of default and intent to |
| 463 | foreclose to the notice address of the obligor by certified |
| 464 | mail, registered mail, or permitted delivery service, return |
| 465 | receipt requested, and by first-class mail or permitted delivery |
| 466 | service, postage prepaid, as follows: |
| 467 | 1. The notice of default and intent to foreclose shall |
| 468 | identify the obligor, the notice address of the obligor, the |
| 469 | legal description of the timeshare interest, the nature of the |
| 470 | default, the amounts secured by the lien, and a per diem amount |
| 471 | to account for further accrual of the amounts secured by the |
| 472 | lien and shall state the method by which the obligor may cure |
| 473 | the default, including the period of time after the date of the |
| 474 | notice of default and intent to foreclose within which the |
| 475 | obligor may cure the default. |
| 476 | 2. The notice of default and intent to foreclose shall |
| 477 | include an objection form with which the obligor can object to |
| 478 | the use of the trustee foreclosure procedure by signing and |
| 479 | returning the objection form to the trustee. The objection form |
| 480 | shall identify the obligor, the notice address of the obligor, |
| 481 | the timeshare interest, and the return address of the trustee |
| 482 | and shall state: "The undersigned obligor exercises the |
| 483 | obligor's right to object to the use of the trustee foreclosure |
| 484 | procedure contained in section 721.855, Florida Statutes." |
| 485 | 3. The notice of default and intent to foreclose shall |
| 486 | also contain a statement in substantially the following form: |
| 487 |
|
| 488 | If you fail to cure the default as set forth in this |
| 489 | notice or take other appropriate action with regard to |
| 490 | this foreclosure matter, you risk losing ownership of |
| 491 | your timeshare interest through the trustee |
| 492 | foreclosure procedure established in section 721.855, |
| 493 | Florida Statutes. You may choose to sign and send to |
| 494 | the trustee the enclosed objection form, exercising |
| 495 | your right to object to the use of the trustee |
| 496 | foreclosure procedure. Upon the trustee's receipt of |
| 497 | your signed objection form, the foreclosure of the |
| 498 | lien with respect to the default specified in this |
| 499 | notice shall be subject to the judicial foreclosure |
| 500 | procedure only. You have the right to cure your |
| 501 | default in the manner set forth in this notice at any |
| 502 | time before the trustee's sale of your timeshare |
| 503 | interest. If you do not object to the use of the |
| 504 | trustee foreclosure procedure, you will not be subject |
| 505 | to a deficiency judgment even if the proceeds from the |
| 506 | sale of your timeshare interest are insufficient to |
| 507 | offset the amounts secured by the lien. |
| 508 |
|
| 509 | 4. The trustee shall also mail a copy of the notice of |
| 510 | default and intent to foreclose, without the objection form, to |
| 511 | the notice address of any junior interestholder by certified |
| 512 | mail, registered mail, or permitted delivery service, return |
| 513 | receipt requested, and by first-class mail or permitted delivery |
| 514 | service, postage prepaid. |
| 515 | 5. Notice under this paragraph is considered perfected |
| 516 | upon the trustee receiving the return receipt bearing the |
| 517 | signature of the obligor or junior interestholder, as |
| 518 | applicable, within 30 calendar days after the trustee sent the |
| 519 | notice under this paragraph. Notice under this paragraph is not |
| 520 | perfected if the notice is returned as undeliverable within 30 |
| 521 | calendar days after the trustee sent the notice, if the trustee |
| 522 | cannot ascertain from the receipt that the obligor or junior |
| 523 | interestholder, as applicable, is the person who signed the |
| 524 | receipt, or if the receipt from the obligor or junior |
| 525 | interestholder, as applicable, is returned or refused within 30 |
| 526 | calendar days after the trustee sent the notice. |
| 527 | (b) If the notice required by paragraph (a) is returned as |
| 528 | undeliverable within 30 calendar days after the trustee sent the |
| 529 | notice, the trustee shall perform a diligent search and inquiry |
| 530 | to obtain a different address for the obligor or junior |
| 531 | interestholder. For purposes of this paragraph, any address |
| 532 | known and used by the lienholder for sending regular mailings or |
| 533 | other communications from the lienholder to the obligor or |
| 534 | junior interestholder, as applicable, shall be included with |
| 535 | other addresses produced from the diligent search and inquiry, |
| 536 | if any. |
| 537 | 1. If the trustee's diligent search and inquiry produces |
| 538 | an address different from the notice address, the trustee shall |
| 539 | mail a copy of the notice by certified mail, registered mail, or |
| 540 | permitted delivery service, return receipt requested, and by |
| 541 | first-class mail or permitted delivery service, postage prepaid, |
| 542 | to the new address. Notice under this subparagraph is considered |
| 543 | perfected upon the trustee receiving the return receipt bearing |
| 544 | the signature of the obligor or junior interestholder, as |
| 545 | applicable, within 30 calendar days after the trustee sent the |
| 546 | notice under this subparagraph. Notice under this subparagraph |
| 547 | is not perfected if the trustee cannot ascertain from the |
| 548 | receipt that the obligor or junior interestholder, as |
| 549 | applicable, is the person who signed the receipt or the receipt |
| 550 | from the obligor or junior interestholder, as applicable, is |
| 551 | returned refused. If the trustee does not perfect notice under |
| 552 | this subparagraph, the trustee shall perfect service in the |
| 553 | manner set forth in paragraph (c). |
| 554 | 2. If the trustee's diligent search and inquiry does not |
| 555 | locate a different address for the obligor or junior |
| 556 | interestholder, as applicable, the trustee may perfect notice |
| 557 | against that person under paragraph (c). |
| 558 | (c) If the notice is not perfected under subparagraph |
| 559 | (a)5., and such notice was not returned as undeliverable, or if |
| 560 | the notice was not perfected under subparagraph (b)1., the |
| 561 | trustee may perfect notice by publication in a newspaper of |
| 562 | general circulation in the county or counties in which the |
| 563 | timeshare interest is located. The notice shall appear at least |
| 564 | once a week for 2 consecutive weeks. The trustee may group an |
| 565 | unlimited number of notices in the same publication, if all of |
| 566 | the notices pertain to the same timeshare plan. Notice under |
| 567 | this paragraph is considered perfected upon publication as |
| 568 | required in this paragraph. |
| 569 | (d) If notice is perfected under subparagraph (a)5., the |
| 570 | trustee shall execute an affidavit in recordable form setting |
| 571 | forth the manner in which notice was perfected and attach the |
| 572 | affidavit to the certificate of compliance set forth in |
| 573 | subsection (9). The affidavit shall state the nature of the |
| 574 | notice, the date on which the notice was mailed, the name and |
| 575 | address on the envelope containing the notice, the manner in |
| 576 | which the notice was mailed, and the basis for that knowledge. |
| 577 | (e) If notice is perfected under subparagraph (b)1., the |
| 578 | trustee shall execute an affidavit in recordable form setting |
| 579 | forth the manner in which notice was perfected and attach the |
| 580 | affidavit to the certificate of compliance set forth in |
| 581 | subsection (9). The affidavit shall state the nature of the |
| 582 | notice, the dates on which the notice was mailed, the name and |
| 583 | addresses on the envelopes containing the notice, the manner in |
| 584 | which the notices were mailed, the fact that a signed receipt |
| 585 | from the certified mail, registered mail, or permitted delivery |
| 586 | service was timely received, and the name and address on the |
| 587 | envelopes containing the notice. |
| 588 | (f) If notice is perfected by publication under paragraph |
| 589 | (c), the trustee shall execute an affidavit in recordable form |
| 590 | setting forth the manner in which notice was perfected and |
| 591 | attach the affidavit to the certificate of compliance set forth |
| 592 | in subsection (9). The affidavit shall include all the |
| 593 | information contained in either paragraph (d) or paragraph (e), |
| 594 | as applicable, shall state that the notice was perfected by |
| 595 | publication after diligent search and inquiry was made for the |
| 596 | current address for the person, and shall include a statement |
| 597 | that notice was perfected by publication, and shall set forth |
| 598 | the information required by s. 49.041 in the case of a natural |
| 599 | person or s. 49.051 in the case of a corporation, whichever is |
| 600 | applicable. No other action of the trustee is necessary to |
| 601 | perfect notice. |
| 602 | (6) NOTICE OF SALE.- |
| 603 | (a) The notice of sale shall set forth: |
| 604 | 1. The name and notice addresses of the obligor and any |
| 605 | junior interestholder. |
| 606 | 2. The legal description of the timeshare interest. |
| 607 | 3. The name and address of the trustee. |
| 608 | 4. A description of the default that is the basis for the |
| 609 | foreclosure. |
| 610 | 5. The official records book and page numbers where the |
| 611 | claim of lien is recorded. |
| 612 | 6. The amounts secured by the lien and a per diem amount |
| 613 | to account for further accrual of the amounts secured by the |
| 614 | lien. |
| 615 | 7. The date, location, and starting time of the trustee's |
| 616 | sale. |
| 617 | 8. The right of and the method by which the obligor may |
| 618 | cure the default or the right of any junior interestholder to |
| 619 | redeem its interest up to the date the trustee issues the |
| 620 | certificate of sale in accordance with paragraph (7)(f). |
| 621 | (b) The trustee shall send a copy of the notice of sale |
| 622 | within 3 business days after the date it is submitted for |
| 623 | recording, by first-class mail or permitted delivery service, |
| 624 | postage prepaid, to the notice addresses of the obligor and any |
| 625 | junior interestholder. |
| 626 | (c) After the date of recording of the notice of sale, |
| 627 | notice is not required to be given to any person claiming an |
| 628 | interest in the timeshare interest except as provided in this |
| 629 | section. The recording of the notice of sale has the same force |
| 630 | and effect as the filing of a lis pendens in a judicial |
| 631 | proceeding under s. 48.23. |
| 632 | (d)1. The trustee shall publish the notice of sale in a |
| 633 | newspaper of general circulation in the county or counties in |
| 634 | which the timeshare interest is located at least once a week for |
| 635 | 2 consecutive weeks before the date of the sale. The last |
| 636 | publication shall occur at least 5 calendar days before the |
| 637 | sale. |
| 638 | 2. The trustee may group an unlimited number of notices of |
| 639 | sale in the same publication, if all of the notices of sale |
| 640 | pertain to the same timeshare plan. |
| 641 | (7) MANNER OF SALE.- |
| 642 | (a) The sale of a timeshare interest by the trustee in a |
| 643 | public auction shall be held in the county in which the |
| 644 | timeshare interest is located, on the date, location, and |
| 645 | starting time designated in the notice of sale, which shall be |
| 646 | after 9:00 a.m. but before 4:00 p.m. on a business day not less |
| 647 | than 30 calendar days after the recording of the notice of sale. |
| 648 | The trustee's sale may occur online at a specific website on the |
| 649 | Internet or in any other manner used by the clerk of the court |
| 650 | for a judicial foreclosure sales procedure in the county or |
| 651 | counties in which the timeshare interest is located. |
| 652 | (b) The trustee shall conduct the sale and act as the |
| 653 | auctioneer. |
| 654 | (c) The lienholder and any person other than the trustee |
| 655 | may bid at the sale. In lieu of participating in the sale, the |
| 656 | lienholder may send the trustee written bidding instructions |
| 657 | that the trustee shall announce as appropriate during the sale. |
| 658 | (d) The trustee may postpone the sale from time to time. |
| 659 | In such case, notice of postponement must be given by the |
| 660 | trustee at the date, time, and location contained in the notice |
| 661 | of sale. The notice of sale for the postponed sale shall be |
| 662 | mailed under paragraph (6)(b), recorded under paragraph (4)(e), |
| 663 | and published under paragraph (6)(d). The effective date of the |
| 664 | initial notice of sale under paragraph (6)(b) is not affected by |
| 665 | a postponed sale. |
| 666 | (e) The highest bidder of the timeshare interest shall pay |
| 667 | the price bid to the trustee in cash or certified funds on the |
| 668 | day of the sale. If the lienholder is the highest bidder, the |
| 669 | lienholder shall receive a credit up to the amount set forth in |
| 670 | the notice of sale as required under subparagraph (6)(a)6. |
| 671 | (f) On the date of the sale and upon receipt of the cash |
| 672 | or certified funds due from the highest bidder, the trustee |
| 673 | shall issue to the highest bidder a certificate of sale stating |
| 674 | that a foreclosure conforming to the requirements of this |
| 675 | section has occurred, including the time, location, and date of |
| 676 | the sale, that the timeshare interest was sold, the amounts |
| 677 | secured by the lien, and the amount of the highest bid. A copy |
| 678 | of the certificate of sale shall be mailed by certified mail, |
| 679 | registered mail, or permitted delivery service, return receipt |
| 680 | requested, to all persons entitled to receive a notice of sale |
| 681 | under subsection (6). |
| 682 | (g) Before a sale conducted under this subsection, a |
| 683 | junior interestholder may pursue adjudication by court, by |
| 684 | interpleader, or in any other authorized manner respecting any |
| 685 | matter that is disputed by the junior interestholder. |
| 686 | (8) EFFECT OF TRUSTEE'S SALE.- |
| 687 | (a) A sale conducted under subsection (7) forecloses and |
| 688 | terminates all interests of any person with notice to whom |
| 689 | notice is given under paragraph (4)(d) and paragraph (6)(b), and |
| 690 | of any other person claiming interests by, through, or under any |
| 691 | such person, in the affected timeshare interest. A failure to |
| 692 | give notice to any person entitled to notice does not affect the |
| 693 | validity of the sale as to the interests of any person properly |
| 694 | notified. A person entitled to notice but not given notice has |
| 695 | the rights of a person not made a defendant in a judicial |
| 696 | foreclosure. |
| 697 | (b) On the issuance of a certificate of sale under |
| 698 | paragraph (7)(f), all rights of redemption that have been |
| 699 | foreclosed under this section shall terminate. |
| 700 | (c) A sale conducted under subsection (7) releases the |
| 701 | obligor's liability for all amounts secured by the lien. The |
| 702 | lienholder has no right to any deficiency judgment against the |
| 703 | obligor after a sale of the obligor's timeshare interest under |
| 704 | this section. |
| 705 | (d) The issuance and recording of the trustee's deed is |
| 706 | presumed valid and may be relied upon by third parties without |
| 707 | actual knowledge of irregularities in the foreclosure |
| 708 | proceedings. If for any reason there is an irregularity in the |
| 709 | foreclosure proceedings, a purchaser becomes subrogated to all |
| 710 | the rights of the lienholder to the indebtedness that it secured |
| 711 | to the extent necessary to reforeclose the assessment lien in |
| 712 | order to correct the irregularity and becomes entitled to an |
| 713 | action de novo for the foreclosure of such assessment lien. Any |
| 714 | subsequent reforeclosure required to correct an irregularity may |
| 715 | be conducted under this section. |
| 716 | (9) TRUSTEE'S CERTIFICATE OF COMPLIANCE.- |
| 717 | (a) Within 10 calendar days after the trustee conducts a |
| 718 | sale, the trustee shall execute and acknowledge a certificate of |
| 719 | compliance that: |
| 720 | 1. Confirms delivery of the notice of default and intent |
| 721 | to foreclose and attaches the affidavit required under |
| 722 | subsection (5). |
| 723 | 2. States that the default was not cured, that the trustee |
| 724 | did not receive any written objection under paragraph (3)(a), |
| 725 | and that the timeshare interest was not redeemed under paragraph |
| 726 | (3)(b). |
| 727 | 3. Confirms that the notice of sale was published as |
| 728 | required under paragraph (6)(d) and attaches an affidavit of |
| 729 | publication for the notice of sale. |
| 730 | 4. Confirms that the notice of sale was mailed under |
| 731 | paragraph (6)(b) together with a list of the parties to whom the |
| 732 | notice of sale was mailed. |
| 733 | (b) In furtherance of the execution of the certificate of |
| 734 | compliance required under this subsection, the trustee is |
| 735 | entitled to rely upon an affidavit or certification from the |
| 736 | lienholder as to the facts and circumstances of default and |
| 737 | failure to cure the default. |
| 738 | (10) TRUSTEE'S DEED.- |
| 739 | (a) The trustee's deed shall include the name and address |
| 740 | of the trustee, the name and address of the highest bidder, the |
| 741 | name of the former owner, a legal description of the timeshare |
| 742 | interest, and the name and address of the preparer of the |
| 743 | trustee's deed. The trustee's deed shall recite that the |
| 744 | certificate of compliance was recorded and shall contain no |
| 745 | warranties of title from the trustee. The certificate of |
| 746 | compliance shall be attached as an exhibit to the trustee's |
| 747 | deed. |
| 748 | (b) Ten calendar days after a sale, absent the prior |
| 749 | filing and service on the trustee of a judicial action to enjoin |
| 750 | issuance of the trustee's deed to the timeshare interest, the |
| 751 | trustee shall: |
| 752 | 1. Issue a trustee's deed to the highest bidder. |
| 753 | 2. Record the trustee's deed in the official records of |
| 754 | the county or counties in which the timeshare interest is |
| 755 | located. |
| 756 | (c)1. The certificate of compliance and trustee's deed |
| 757 | together are presumptive evidence of the truth of the matters |
| 758 | set forth in them, and an action to set aside the sale and void |
| 759 | the trustee's deed may not be filed or otherwise pursued against |
| 760 | any person acquiring the timeshare interest for value. |
| 761 | 2. The trustee's deed conveys to the highest bidder all |
| 762 | rights, title, and interest in the timeshare interest that the |
| 763 | former owner had, or had the power to convey, at the time of the |
| 764 | recording of the claim of lien, together with all rights, title, |
| 765 | and interest that the former owner or his or her successors in |
| 766 | interest acquired after the recording of the claim of lien. |
| 767 | 3. The issuance and recording of a trustee's deed shall |
| 768 | have the same force and effect as the issuance and recording of |
| 769 | a certificate of title by the clerk of the court in a judicial |
| 770 | foreclosure action. |
| 771 | (11) DISPOSITION OF PROCEEDS OF SALE.- |
| 772 | (a) The trustee shall apply the proceeds of the sale as |
| 773 | follows: |
| 774 | 1. To the expenses of the sale, including compensation of |
| 775 | the trustee. |
| 776 | 2. To the amount owed and set forth in the notice as |
| 777 | required in subparagraph (6)(a)6. |
| 778 | 3. If there are junior interestholders, the trustee may |
| 779 | file an action in interpleader, pay the surplus to a court of |
| 780 | competent jurisdiction, name the competing junior |
| 781 | interestholders, and ask the court to determine the proper |
| 782 | distribution of the surplus. In any interpleader action, the |
| 783 | trustee shall recover reasonable attorney's fees and costs. |
| 784 | 4. If there are no junior interestholders, or if all |
| 785 | junior interestholders have been paid, any surplus shall be paid |
| 786 | to the former owner. If the trustee is unable to locate the |
| 787 | former owner within 1 year after the sale, the surplus, if any, |
| 788 | shall be deposited with the Chief Financial Officer under |
| 789 | chapter 717. |
| 790 | (b) In disposing of the proceeds of the sale, the trustee |
| 791 | may rely on the information provided in the affidavit of the |
| 792 | lienholder under paragraph (2)(c) and, in the event of a dispute |
| 793 | or uncertainty over such claims, the trustee has the discretion |
| 794 | to submit the matter to adjudication by court, by interpleader, |
| 795 | or in any other authorized manner and shall recover reasonable |
| 796 | attorney's fees and costs. |
| 797 | (12) TRUSTEE FORECLOSURE ACTIONS.-The trustee foreclosure |
| 798 | procedure established in this section does not impair or |
| 799 | otherwise affect the lienholder's continuing right to bring a |
| 800 | judicial foreclosure action, in lieu of using the trustee |
| 801 | foreclosure procedure, with respect to any assessment lien. |
| 802 | (13) APPLICATION.-This section applies to any default |
| 803 | giving rise to the imposition of an assessment lien which occurs |
| 804 | after the effective date of this section. |
| 805 | (14) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE |
| 806 | PROCEDURE.- |
| 807 | (a) An action for actual damages for a material violation |
| 808 | of this section may be brought by an obligor against the |
| 809 | lienholder for the failure to follow the trustee foreclosure |
| 810 | procedure contained in this section. |
| 811 | (b) Any trustee who intentionally violates the provisions |
| 812 | of this section concerning the trustee foreclosure procedure |
| 813 | commits a felony of the third degree, punishable as provided in |
| 814 | s. 775.082, s. 775.083, or s. 775.084. |
| 815 | Section 10. Section 721.856, Florida Statutes, is created |
| 816 | to read: |
| 817 | 721.856 Procedure for the trustee foreclosure of mortgage |
| 818 | liens.-The provisions of this section establish a trustee |
| 819 | foreclosure procedure for mortgage liens. |
| 820 | (1) APPOINTMENT OF TRUSTEE.- |
| 821 | (a) A trustee or a substitute trustee may be appointed by |
| 822 | a lienholder at any time by recording a notice of appointment of |
| 823 | trustee or notice of substitution of trustee in the official |
| 824 | records of the county or counties in which the timeshare |
| 825 | interest is located. A lienholder may appoint multiple trustees |
| 826 | in a single appointment, and any appointed trustee may be used |
| 827 | by the lienholder regarding the trustee foreclosure of any |
| 828 | mortgage lien. |
| 829 | (b) A trustee shall use good faith, skill, care, and |
| 830 | diligence in discharging all of the trustee duties under this |
| 831 | section and shall deal honestly and fairly with all parties. |
| 832 | (c) The recorded notice of appointment of trustee or |
| 833 | notice of substitution of trustee shall contain the name and |
| 834 | address of the trustee or substitute trustee, the name and |
| 835 | address of the lienholder, and the name and address of the |
| 836 | timeshare plan. |
| 837 | (2) INITIATING THE TRUSTEE FORECLOSURE OF MORTGAGE LIENS.- |
| 838 | (a) Before initiating the trustee foreclosure against a |
| 839 | timeshare interest, the mortgage, or an amendment to a mortgage |
| 840 | executed by the obligor before the effective date of this |
| 841 | section, must contain a statement in substantially the following |
| 842 | form: |
| 843 |
|
| 844 | If the mortgagor fails to make timely payments under |
| 845 | the obligation secured by this mortgage, or is |
| 846 | otherwise deemed in uncured default of this mortgage, |
| 847 | the lien against the mortgagor's timeshare interest |
| 848 | created by this mortgage may be foreclosed in |
| 849 | accordance with either a judicial foreclosure |
| 850 | procedure or a trustee foreclosure procedure and may |
| 851 | result in the loss of your timeshare interest. If the |
| 852 | mortgagee initiates a trustee foreclosure procedure, |
| 853 | the mortgagor shall have the option to object and the |
| 854 | mortgagee may proceed only by filing a judicial |
| 855 | foreclosure action. |
| 856 |
|
| 857 | (b)1. In order to initiate a trustee foreclosure procedure |
| 858 | against a timeshare interest, the lienholder shall deliver an |
| 859 | affidavit to the trustee that identifies the obligor, the notice |
| 860 | address of the obligor, the timeshare interest, the official |
| 861 | records book and page number where the mortgage is recorded, and |
| 862 | the name and notice address of any junior interestholder. The |
| 863 | affidavit shall be accompanied by a title search of the |
| 864 | timeshare interest identifying any junior interestholders of |
| 865 | record, and the effective date of the title search must be a |
| 866 | date that is within 60 calendar days before the date of the |
| 867 | affidavit. |
| 868 | 2. The affidavit shall also state the facts that establish |
| 869 | that the obligor has defaulted in the obligation to make a |
| 870 | payment under a specified provision of the mortgage or is |
| 871 | otherwise deemed in uncured default under a specified provision |
| 872 | of the mortgage. |
| 873 | 3. The affidavit shall also specify the amounts secured by |
| 874 | the lien as of the date of the affidavit and a per diem amount |
| 875 | to account for further accrual of the amounts secured by the |
| 876 | lien. |
| 877 | 4. The affidavit shall also state that the appropriate |
| 878 | amount of documentary stamp tax and intangible taxes has been |
| 879 | paid upon recording of the mortgage, or otherwise paid to the |
| 880 | state. |
| 881 | 5. The affidavit shall also state that the lienholder is |
| 882 | the holder of the note and has complied with all preconditions |
| 883 | in the note and mortgage to determine the amounts secured by the |
| 884 | lien and to initiate the use of the trustee foreclosure |
| 885 | procedure. |
| 886 | (3) OBLIGOR'S RIGHTS.- |
| 887 | (a) The obligor may object to the lienholder's use of the |
| 888 | trustee foreclosure procedure for a specific default any time |
| 889 | before the sale of the timeshare interest under subsection (7) |
| 890 | by delivering a written objection to the trustee using the |
| 891 | objection form provided for in subsection (5). If the trustee |
| 892 | receives the written objection from the obligor, the trustee may |
| 893 | not proceed with the trustee foreclosure procedure as to the |
| 894 | default specified in the notice of default and intent to |
| 895 | foreclose under subsection (5), and the lienholder may proceed |
| 896 | thereafter only with a judicial foreclosure action as to that |
| 897 | specified default. |
| 898 | (b) At any time before the trustee issues the certificate |
| 899 | of sale under paragraph (7)(f), the obligor may cure the default |
| 900 | and redeem the timeshare interest by paying the amounts secured |
| 901 | by the lien in cash or certified funds to the trustee. After the |
| 902 | trustee issues the certificate of sale, there is no right of |
| 903 | redemption. |
| 904 | (4) CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A |
| 905 | trustee may sell an encumbered timeshare interest foreclosed |
| 906 | under this section if: |
| 907 | (a) The trustee has received the affidavit from the |
| 908 | lienholder under paragraph (2)(b); |
| 909 | (b) The trustee has not received a written objection to |
| 910 | the use of the trustee foreclosure procedure under paragraph |
| 911 | (3)(a) and the timeshare interest was not redeemed under |
| 912 | paragraph (3)(b); |
| 913 | (c) There is no lis pendens recorded and pending against |
| 914 | the same timeshare interest, and the trustee has not been served |
| 915 | notice of the filing of any action to enjoin the trustee |
| 916 | foreclosure sale; |
| 917 | (d) The trustee is in possession of the original |
| 918 | promissory note executed by the mortgagor and secured by the |
| 919 | mortgage lien; |
| 920 | (e) The trustee has provided written notice of default and |
| 921 | intent to foreclose as required under subsection (5) and a |
| 922 | period of at least 30 calendar days has elapsed after such |
| 923 | notice is deemed perfected under subsection (5); and |
| 924 | (f) The notice of sale required under subsection (6) has |
| 925 | been recorded in the official records of the county in which the |
| 926 | mortgage was recorded. |
| 927 | (5) NOTICE OF DEFAULT AND INTENT TO FORECLOSE.- |
| 928 | (a) In any foreclosure proceeding under this section, the |
| 929 | trustee is required to notify the obligor of the proceeding by |
| 930 | sending the obligor a written notice of default and intent to |
| 931 | foreclose to the notice address of the obligor by certified |
| 932 | mail, registered mail, or permitted delivery service, return |
| 933 | receipt requested, and by first-class mail or permitted delivery |
| 934 | service, postage prepaid, as follows: |
| 935 | 1. The notice of default and intent to foreclose shall |
| 936 | identify the obligor, the notice address of the obligor, the |
| 937 | legal description of the timeshare interest, the nature of the |
| 938 | default, the amounts secured by the lien, and a per diem amount |
| 939 | to account for further accrual of the amounts secured by the |
| 940 | lien and shall state the method by which the obligor may cure |
| 941 | the default, including the period of time after the date of the |
| 942 | notice of default and intent to foreclose within which the |
| 943 | obligor may cure the default. |
| 944 | 2. The notice of default and intent to foreclose shall |
| 945 | include an objection form with which the obligor can object to |
| 946 | the use of the trustee foreclosure procedure by signing and |
| 947 | returning the objection form to the trustee. The objection form |
| 948 | shall identify the obligor, the notice address of the obligor, |
| 949 | the timeshare interest, and the return address of the trustee |
| 950 | and shall state: "The undersigned obligor exercises the |
| 951 | obligor's right to object to the use of the trustee foreclosure |
| 952 | procedure contained in section 721.856, Florida Statutes." |
| 953 | 3. The notice of default and intent to foreclose shall |
| 954 | also contain a statement in substantially the following form: |
| 955 |
|
| 956 | If you fail to cure the default as set forth in this |
| 957 | notice or take other appropriate action with regard to |
| 958 | this foreclosure matter, you risk losing ownership of |
| 959 | your timeshare interest through the trustee |
| 960 | foreclosure procedure established in section 721.856, |
| 961 | Florida Statutes. You may choose to sign and send to |
| 962 | the trustee the enclosed objection form, exercising |
| 963 | your right to object to the use of the trustee |
| 964 | foreclosure procedure. Upon the trustee's receipt of |
| 965 | your signed objection form, the foreclosure of the |
| 966 | lien with respect to the default specified in this |
| 967 | notice shall be subject to the judicial foreclosure |
| 968 | procedure only. You have the right to cure your |
| 969 | default in the manner set forth in this notice at any |
| 970 | time before the trustee's sale of your timeshare |
| 971 | interest. If you do not object to the use of the |
| 972 | trustee foreclosure procedure, you will not be subject |
| 973 | to a deficiency judgment even if the proceeds from the |
| 974 | sale of your timeshare interest are insufficient to |
| 975 | offset the amounts secured by the lien. |
| 976 |
|
| 977 | 4. The trustee shall also mail a copy of the notice of |
| 978 | default and intent to foreclose, without the objection form, to |
| 979 | the notice address of any junior interestholder by certified |
| 980 | mail, registered mail, or permitted delivery service, return |
| 981 | receipt requested, and by first-class mail or permitted delivery |
| 982 | service, postage prepaid. |
| 983 | 5. Notice under this paragraph is considered perfected |
| 984 | upon the trustee receiving the return receipt bearing the |
| 985 | signature of the obligor or junior interestholder, as |
| 986 | applicable, within 30 calendar days after the trustee sent the |
| 987 | notice under this paragraph. Notice under this paragraph is not |
| 988 | perfected if the notice is returned as undeliverable within 30 |
| 989 | calendar days after the trustee sent the notice, if the trustee |
| 990 | cannot ascertain from the receipt that the obligor or junior |
| 991 | interestholder, as applicable, is the person who signed the |
| 992 | receipt, or if the receipt from the obligor or junior |
| 993 | interestholder, as applicable, is returned or refused within 30 |
| 994 | calendar days after the trustee sent the notice. |
| 995 | (b) If the notice required by paragraph (a) is returned as |
| 996 | undeliverable within 30 calendar days after the trustee sent the |
| 997 | notice, the trustee shall perform a diligent search and inquiry |
| 998 | to obtain a different address for the obligor or junior |
| 999 | interestholder. For purposes of this paragraph, any address |
| 1000 | known and used by the lienholder for sending regular mailings or |
| 1001 | other communications from the lienholder to the obligor or |
| 1002 | junior interestholder, as applicable, shall be included with |
| 1003 | other addresses produced from the diligent search and inquiry, |
| 1004 | if any. |
| 1005 | 1. If the trustee's diligent search and inquiry produces |
| 1006 | an address different from the notice address, the trustee shall |
| 1007 | mail a copy of the notice by certified mail, registered mail, or |
| 1008 | permitted delivery service, return receipt requested, and by |
| 1009 | first-class mail or permitted delivery service, postage prepaid, |
| 1010 | to the new address. Notice under this subparagraph is considered |
| 1011 | perfected upon the trustee receiving the return receipt bearing |
| 1012 | the signature of the obligor or junior interestholder, as |
| 1013 | applicable, within 30 calendar days after the trustee sent the |
| 1014 | notice under this subparagraph. Notice under this subparagraph |
| 1015 | is not perfected if the trustee cannot ascertain from the |
| 1016 | receipt that the obligor or junior interestholder, as |
| 1017 | applicable, is the person who signed the receipt or the receipt |
| 1018 | from the obligor or junior interestholder, as applicable, is |
| 1019 | returned refused. If the trustee does not perfect notice under |
| 1020 | this subparagraph, the trustee shall perfect service in the |
| 1021 | manner set forth in paragraph (c). |
| 1022 | 2. If the trustee's diligent search and inquiry does not |
| 1023 | locate a different address for the obligor or junior |
| 1024 | interestholder, as applicable, the trustee may perfect notice |
| 1025 | against that person under paragraph (c). |
| 1026 | (c) If the notice is not perfected under subparagraph |
| 1027 | (a)5., and such notice was not returned as undeliverable, or if |
| 1028 | the notice was not perfected under subparagraph (b)1., the |
| 1029 | trustee may perfect notice by publication in a newspaper of |
| 1030 | general circulation in the county or counties in which the |
| 1031 | timeshare interest is located. The notice shall appear at least |
| 1032 | once a week for 2 consecutive weeks. The trustee may group an |
| 1033 | unlimited number of notices in the same publication, if all of |
| 1034 | the notices pertain to the same timeshare plan. Notice under |
| 1035 | this paragraph is considered perfected upon publication as |
| 1036 | required in this paragraph. |
| 1037 | (d) If notice is perfected under subparagraph (a)5., the |
| 1038 | trustee shall execute an affidavit in recordable form setting |
| 1039 | forth the manner in which notice was perfected and attach the |
| 1040 | affidavit to the certificate of compliance set forth in |
| 1041 | subsection (9). The affidavit shall state the nature of the |
| 1042 | notice, the date on which the notice was mailed, the name and |
| 1043 | address on the envelope containing the notice, the manner in |
| 1044 | which the notice was mailed, and the basis for that knowledge. |
| 1045 | (e) If notice is perfected under subparagraph (b)1., the |
| 1046 | trustee shall execute an affidavit in recordable form setting |
| 1047 | forth the manner in which notice was perfected and attach the |
| 1048 | affidavit to the certificate of compliance set forth in |
| 1049 | subsection (9). The affidavit shall state the nature of the |
| 1050 | notice, the dates on which the notice was mailed, the name and |
| 1051 | addresses on the envelopes containing the notice, the manner in |
| 1052 | which the notice was mailed, the fact that a signed receipt from |
| 1053 | the certified mail, registered mail, or permitted delivery |
| 1054 | service was timely received, and the name and address on the |
| 1055 | envelopes containing the notice. |
| 1056 | (f) If notice is perfected under paragraph (c), the |
| 1057 | trustee shall execute an affidavit in recordable form setting |
| 1058 | forth the manner in which notice was perfected and attach the |
| 1059 | affidavit to the certificate of compliance set forth in |
| 1060 | subsection (9). The affidavit shall include all the information |
| 1061 | contained in either paragraph (d) or paragraph (e), as |
| 1062 | applicable, shall state that the notice was perfected by |
| 1063 | publication after diligent search and inquiry was made for the |
| 1064 | current address for the person, shall include a statement that |
| 1065 | notice was perfected by publication, and shall set forth the |
| 1066 | information required by s. 49.041 in the case of a natural |
| 1067 | person or s. 49.051 in the case of a corporation, whichever is |
| 1068 | applicable. No other action of the trustee is necessary to |
| 1069 | perfect notice. |
| 1070 | (6) NOTICE OF SALE.- |
| 1071 | (a) The notice of sale shall set forth: |
| 1072 | 1. The name and notice addresses of the obligor and any |
| 1073 | junior interestholder. |
| 1074 | 2. The legal description of the timeshare interest. |
| 1075 | 3. The name and address of the trustee. |
| 1076 | 4. A description of the default that is the basis for the |
| 1077 | foreclosure. |
| 1078 | 5. The official records book and page numbers where the |
| 1079 | mortgage is recorded. |
| 1080 | 6. The amounts secured by the lien and a per diem amount |
| 1081 | to account for further accrual of the amounts secured by the |
| 1082 | lien. |
| 1083 | 7. The date, location, and starting time of the trustee's |
| 1084 | sale. |
| 1085 | 8. The right of and the method by which the obligor may |
| 1086 | cure the default or the right of any junior interestholder to |
| 1087 | redeem its interest up to the date the trustee issues the |
| 1088 | certificate of sale in accordance with paragraph (7)(f). |
| 1089 | (b) The trustee shall send a copy of the notice of sale |
| 1090 | within 3 business days after the date it is submitted for |
| 1091 | recording, by first-class mail or permitted delivery service, |
| 1092 | postage prepaid, to the notice addresses of the obligor and any |
| 1093 | junior interestholder. |
| 1094 | (c) After the date of recording of the notice of sale, |
| 1095 | notice is not required to be given to any person claiming an |
| 1096 | interest in the timeshare interest except as provided in this |
| 1097 | section. The recording of the notice of sale has the same force |
| 1098 | and effect as the filing of a lis pendens in a judicial |
| 1099 | proceeding under s. 48.23. |
| 1100 | (d)1. The trustee shall publish the notice of sale in a |
| 1101 | newspaper of general circulation in the county or counties in |
| 1102 | which the timeshare interest is located at least once a week for |
| 1103 | 2 consecutive weeks before the date of the sale. The last |
| 1104 | publication shall occur at least 5 calendar days before the |
| 1105 | sale. |
| 1106 | 2. The trustee may group an unlimited number of notices of |
| 1107 | sale in the same publication, if all of the notices of sale |
| 1108 | pertain to the same timeshare plan. |
| 1109 | (7) MANNER OF SALE.- |
| 1110 | (a) The sale of a timeshare interest by the trustee in a |
| 1111 | public auction shall be held in the county in which the |
| 1112 | timeshare interest is located, on the date, location, and |
| 1113 | starting time designated in the notice of sale, which shall be |
| 1114 | after 9:00 a.m. but before 4:00 p.m. on a business day not less |
| 1115 | than 30 calendar days after the recording of the notice of sale. |
| 1116 | The trustee's sale may occur online at a specific website on the |
| 1117 | Internet or in any other manner used by the clerk of the court |
| 1118 | for a judicial foreclosure sales procedure in the county or |
| 1119 | counties in which the timeshare interest is located. |
| 1120 | (b) The trustee shall conduct the sale and act as the |
| 1121 | auctioneer. |
| 1122 | (c) The lienholder and any person other than the trustee |
| 1123 | may bid at the sale. In lieu of participating in the sale, the |
| 1124 | lienholder may send the trustee written bidding instructions |
| 1125 | that the trustee shall announce as appropriate during the sale. |
| 1126 | (d) The trustee may postpone the sale from time to time. |
| 1127 | In such case, notice of postponement must be given by the |
| 1128 | trustee at the date, time, and location contained in the notice |
| 1129 | of sale. The notice of sale for the postponed sale shall be |
| 1130 | mailed under paragraph (6)(b), recorded under paragraph (4)(f), |
| 1131 | and published under paragraph (6)(d). The effective date of the |
| 1132 | initial notice of sale under paragraph (6)(b) is not affected by |
| 1133 | a postponed sale. |
| 1134 | (e) The highest bidder of the timeshare interest shall pay |
| 1135 | the price bid to the trustee in cash or certified funds on the |
| 1136 | day of the sale. If the lienholder is the highest bidder, the |
| 1137 | lienholder shall receive a credit up to the amount set forth in |
| 1138 | the notice of sale as required under subparagraph (6)(a)6. |
| 1139 | (f) On the date of the sale and upon receipt of the cash |
| 1140 | or certified funds due from the highest bidder, the trustee |
| 1141 | shall issue to the highest bidder a certificate of sale stating |
| 1142 | that a foreclosure conforming to the requirements of this |
| 1143 | section has occurred, including the time, location, and date of |
| 1144 | the sale, that the timeshare interest was sold, the amounts |
| 1145 | secured by the lien, and the amount of the highest bid. A copy |
| 1146 | of the certificate of sale shall be mailed by certified mail, |
| 1147 | registered mail, or permitted delivery service, return receipt |
| 1148 | requested, to all persons entitled to receive a notice of sale |
| 1149 | under subsection (6). |
| 1150 | (g) Before a sale conducted pursuant to this subsection, a |
| 1151 | junior interestholder may pursue adjudication by court, by |
| 1152 | interpleader, or in any other authorized manner respecting any |
| 1153 | matter that is disputed by the junior interestholder. |
| 1154 | (8) EFFECT OF TRUSTEE'S SALE.- |
| 1155 | (a) A sale conducted under subsection (7) forecloses and |
| 1156 | terminates all interests of any person with notice to whom |
| 1157 | notice is given under paragraph (4)(e) and paragraph (6)(b), and |
| 1158 | of any other person claiming interests by, through, or under any |
| 1159 | such person, in the affected timeshare interest. A failure to |
| 1160 | give notice to any person entitled to notice does not affect the |
| 1161 | validity of the sale as to the interests of any person properly |
| 1162 | notified. A person entitled to notice but not given notice has |
| 1163 | the rights of a person not made a defendant in a judicial |
| 1164 | foreclosure. |
| 1165 | (b) On the issuance of a certificate of sale under |
| 1166 | paragraph (7)(f), all rights of redemption that have been |
| 1167 | foreclosed under this section shall terminate. |
| 1168 | (c) A sale conducted under subsection (7) releases the |
| 1169 | obligor's liability for all amounts secured by the lien. The |
| 1170 | lienholder has no right to any deficiency judgment against the |
| 1171 | obligor after a sale of the obligor's timeshare interest under |
| 1172 | this section. |
| 1173 | (d) The issuance and recording of the trustee's deed is |
| 1174 | presumed valid and may be relied upon by third parties without |
| 1175 | actual knowledge of any irregularities in the foreclosure |
| 1176 | proceedings. If for any reason there is an irregularity in the |
| 1177 | foreclosure proceedings, a purchaser becomes subrogated to all |
| 1178 | the rights of the lienholder to the indebtedness that it secured |
| 1179 | to the extent necessary to reforeclose the mortgage lien in |
| 1180 | order to correct the irregularity and becomes entitled to an |
| 1181 | action de novo for the foreclosure of such mortgage lien. Any |
| 1182 | subsequent reforeclosure required to correct an irregularity may |
| 1183 | be conducted under this section. |
| 1184 | (9) TRUSTEE'S CERTIFICATE OF COMPLIANCE.- |
| 1185 | (a) Within 10 calendar days after the trustee conducts a |
| 1186 | sale, the trustee shall execute and acknowledge a certificate of |
| 1187 | compliance which: |
| 1188 | 1. Confirms delivery of the notice of default and intent |
| 1189 | to foreclose and attaches the affidavit required under |
| 1190 | subsection (5). |
| 1191 | 2. States that the default was not cured, that the trustee |
| 1192 | did not receive any written objection under paragraph (3)(a), |
| 1193 | and that the timeshare interest was not redeemed under paragraph |
| 1194 | (3)(b). |
| 1195 | 3. States that the trustee is in possession of the |
| 1196 | original promissory note executed by the mortgagor and secured |
| 1197 | by the mortgage lien. |
| 1198 | 4. Confirms that the notice of sale was published as |
| 1199 | required under paragraph (6)(d) and attaches an affidavit of |
| 1200 | publication for the notice of sale. |
| 1201 | 5. Confirms that the notice of sale was mailed under |
| 1202 | paragraph (6)(b) together with a list of the parties to whom the |
| 1203 | notice of sale was mailed. |
| 1204 | (b) In furtherance of the execution of the certificate of |
| 1205 | compliance required under this subsection, the trustee is |
| 1206 | entitled to rely upon an affidavit or certification from the |
| 1207 | lienholder as to the facts and circumstances of default and |
| 1208 | failure to cure the default. |
| 1209 | (10) TRUSTEE'S DEED.- |
| 1210 | (a) The trustee's deed shall include the name and address |
| 1211 | of the trustee, the name and address of the highest bidder, the |
| 1212 | name of the former owner, a legal description of the timeshare |
| 1213 | interest, and the name and address of the preparer of the |
| 1214 | trustee's deed. The trustee's deed shall recite that the |
| 1215 | certificate of compliance was recorded and shall contain no |
| 1216 | warranties of title from the trustee. The certificate of |
| 1217 | compliance shall be attached as an exhibit to the trustee's |
| 1218 | deed. |
| 1219 | (b) Ten calendar days after a sale, absent the prior |
| 1220 | filing and service on the trustee of a judicial action to enjoin |
| 1221 | issuance of the trustee's deed to the timeshare interest, the |
| 1222 | trustee shall: |
| 1223 | 1. Cancel the original promissory note executed by the |
| 1224 | mortgagor and secured by the mortgage lien. |
| 1225 | 2. Issue a trustee's deed to the highest bidder. |
| 1226 | 3. Record the trustee's deed in the official records of |
| 1227 | the county or counties in which the timeshare interest is |
| 1228 | located. |
| 1229 | (c)1. The certificate of compliance and trustee's deed |
| 1230 | together are presumptive evidence of the truth of the matters |
| 1231 | set forth in them, and an action to set aside the sale and void |
| 1232 | the trustee's deed may not be filed or otherwise pursued against |
| 1233 | any person acquiring the timeshare interest for value. |
| 1234 | 2. The trustee's deed conveys to the highest bidder all |
| 1235 | rights, title, and interest in the timeshare interest that the |
| 1236 | former owner had, or had the power to convey, together with all |
| 1237 | rights, title, and interest that the former owner or his or her |
| 1238 | successors in interest acquired after the execution of the |
| 1239 | mortgage. |
| 1240 | 3. The issuance and recording of a trustee's deed shall |
| 1241 | have the same force and effect as the issuance and recording of |
| 1242 | a certificate of title by the clerk of the court in a judicial |
| 1243 | foreclosure action. |
| 1244 | (11) DISPOSITION OF PROCEEDS OF SALE.- |
| 1245 | (a) The trustee shall apply the proceeds of the sale as |
| 1246 | follows: |
| 1247 | 1. To the expenses of the sale, including compensation of |
| 1248 | the trustee. |
| 1249 | 2. To the amount owed and set forth in the notice as |
| 1250 | required under subparagraph (6)(a)6. |
| 1251 | 3. If there are junior interestholders, the trustee may |
| 1252 | file an action in interpleader, pay the surplus to a court of |
| 1253 | competent jurisdiction, name the competing junior |
| 1254 | interestholders, and ask the court to determine the proper |
| 1255 | distribution of the surplus. In any interpleader action, the |
| 1256 | trustee shall recover reasonable attorney's fees and costs. |
| 1257 | 4. If there are no junior interestholders, or if all |
| 1258 | junior interestholders have been paid, any surplus shall be paid |
| 1259 | to the former owner. If the trustee is unable to locate the |
| 1260 | former owner within 1 year after the sale, the surplus, if any, |
| 1261 | shall be deposited with the Chief Financial Officer under |
| 1262 | chapter 717. |
| 1263 | (b) In disposing of the proceeds of the sale, the trustee |
| 1264 | may rely on the information provided in the affidavit of the |
| 1265 | lienholder under paragraph (2)(b) and, in the event of a dispute |
| 1266 | or uncertainty over such claims, the trustee has the discretion |
| 1267 | to submit the matter to adjudication by court, by interpleader, |
| 1268 | or in any other authorized manner and shall recover reasonable |
| 1269 | attorney's fees and costs. |
| 1270 | (12) JUDICIAL FORECLOSURE ACTIONS.-The trustee foreclosure |
| 1271 | procedure established in this section does not impair or |
| 1272 | otherwise affect the lienholder's continuing right to bring a |
| 1273 | judicial foreclosure action, in lieu of using the trustee |
| 1274 | foreclosure procedure, with respect to any mortgage lien. |
| 1275 | (13) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE |
| 1276 | PROCEDURE.- |
| 1277 | (a) An action for actual damages for a material violation |
| 1278 | of this section may be brought by an obligor against the |
| 1279 | lienholder for the failure to follow the trustee foreclosure |
| 1280 | procedure contained in this section. |
| 1281 | (b) Any trustee who intentionally violates the provisions |
| 1282 | of this section concerning the trustee foreclosure procedure |
| 1283 | commits a felony of the third degree, punishable as provided in |
| 1284 | s. 775.082, s. 775.083, or s. 775.084. |
| 1285 | Section 11. Subsections (1) and (4) of section 721.86, |
| 1286 | Florida Statutes, are amended to read: |
| 1287 | 721.86 Miscellaneous provisions.- |
| 1288 | (1) In the event of a conflict between the provisions of |
| 1289 | this part and the other provisions of this chapter, chapter 702, |
| 1290 | or other applicable law, the provisions of this part shall |
| 1291 | prevail. The procedures in this part must be given effect in the |
| 1292 | context of any foreclosure proceedings against timeshare |
| 1293 | interests estates governed by this chapter, chapter 702, chapter |
| 1294 | 718, or chapter 719. |
| 1295 | (4) In addition to assessment liens and mortgage liens |
| 1296 | arising after the effective date of this part, except as |
| 1297 | provided in s. 721.855(13), the provisions of this part apply to |
| 1298 | all assessment liens and mortgage liens existing prior to the |
| 1299 | effective date of this act regarding which a foreclosure |
| 1300 | proceeding has not yet commenced. |
| 1301 | Section 12. Subsection (2) of section 721.20, Florida |
| 1302 | Statutes, is amended to read: |
| 1303 | 721.20 Licensing requirements; suspension or revocation of |
| 1304 | license; exceptions to applicability; collection of advance fees |
| 1305 | for listings unlawful.- |
| 1306 | (2) Solicitors who engage only in the solicitation of |
| 1307 | prospective purchasers and any purchaser who refers no more than |
| 1308 | 20 people to a developer or managing entity per year or who |
| 1309 | otherwise provides testimonials on behalf of a developer or |
| 1310 | managing entity are exempt from the provisions of chapter 475. |
| 1311 | Section 13. This act shall take effect upon becoming a |
| 1312 | law. |