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; providing a criminal penalty; creating s.
41721.856, F.S.; establishing procedure for the trustee
42foreclosure of mortgage liens; providing for the
43appointment of a trustee; providing recording requirements
44for such liens; providing procedures for the initiation of
45a trustee foreclosure procedure against a timeshare
46interest; providing procedures for an obligor's objection
47to the trustee foreclosure procedure; providing conditions
48to a trustee's exercise of power of sale; providing
49requirements for a notice of default and intent to sell;
50providing requirements for a notice of sale; providing
51requirements for the sale by auction of foreclosed
52encumbered timeshare interests; providing requirements for
53a trustee's certificate of compliance; providing for the
54effect of a trustee's sale; providing requirements for a
55trustee's deed; providing for the disposition of proceeds
56of the sale; providing that the trustee foreclosure
57procedure does not impair or otherwise affect the right to
58bring certain actions; providing for actions for failure
59to follow the trustee foreclosure procedure; providing a
60criminal penalty; amending s. 721.86, F.S.; providing for
61priority of application in case of conflict; conforming
62terminology to changes made by this act; amending s.
63721.20, F.S.; revising exemptions from certain licensing
64requirements; providing an effective date.
65
66Be It Enacted by the Legislature of the State of Florida:
67
68     Section 1.  Paragraph (jj) is added to subsection (5) of
69section 721.07, Florida Statutes, to read:
70     721.07  Public offering statement.-Prior to offering any
71timeshare plan, the developer must submit a filed public
72offering statement to the division for approval as prescribed by
73s. 721.03, s. 721.55, or this section. Until the division
74approves such filing, any contract regarding the sale of that
75timeshare plan is subject to cancellation by the purchaser
76pursuant to s. 721.10.
77     (5)  Every filed public offering statement for a timeshare
78plan which is not a multisite timeshare plan shall contain the
79information required by this subsection. The division is
80authorized to provide by rule the method by which a developer
81must provide such information to the division.
82     (jj)  The following statement in conspicuous type:
83
84The managing entity has a lien against each timeshare
85interest to secure the payment of assessments, ad
86valorem assessments, tax assessments, and special
87assessments. Your failure to make any required
88payments may result in the judicial or trustee
89foreclosure of an assessment lien and the loss of your
90timeshare interest. If the managing entity initiates a
91trustee foreclosure procedure, you shall have the
92option to object to the use of the trustee foreclosure
93procedure and the managing entity may only proceed by
94filing a judicial foreclosure action.
95     Section 2.  Subsection (13) is added to section 721.13,
96Florida Statutes, to read:
97     721.13  Management.-
98     (13)  Notwithstanding any provisions of chapter 607,
99chapter 617, or chapter 718, an officer, director, or agent of
100an owners' association shall discharge his or her duties in good
101faith, with the care an ordinarily prudent person in a like
102position would exercise under similar circumstances, and in a
103manner he or she reasonably believes to be in the interests of
104the owners' association. An officer, director, or agent of an
105owners' association shall be exempt from liability for monetary
106damages in the same manner as provided in s. 617.0834 unless
107such officer, director, or agent breached or failed to perform
108his or her duties and the breach of, or failure to perform, his
109or her duties constitutes a violation of criminal law as
110provided in s. 617.0834; constitutes a transaction from which
111the officer or director derived an improper personal benefit,
112either directly or indirectly; or constitutes recklessness or an
113act or omission that was in bad faith, with malicious purpose,
114or in a manner exhibiting wanton and willful disregard of human
115rights, safety, or property.
116     Section 3.  Subsections (2) and (3) of section 721.16,
117Florida Statutes, are amended to read:
118     721.16  Liens for overdue assessments; liens for labor
119performed on, or materials furnished to, a timeshare unit.-
120     (2)  The managing entity may bring a judicial an action in
121its name to foreclose a lien under subsection (1) in the manner
122a mortgage of real property is foreclosed and may also bring an
123action to recover a money judgment for the unpaid assessments
124without waiving any claim of lien. As an alternative to
125initiating a judicial action, the managing entity may initiate a
126trustee procedure to foreclose an assessment lien under s.
127721.855.
128     (3)  The lien is effective from the date of recording a
129claim of lien in the official public records of the county or
130counties in which the timeshare interest is accommodations and
131facilities constituting the timeshare plan are located. The
132claim of lien shall state the name of the timeshare plan and
133identify the timeshare interest for which the lien is effective,
134state the name of the purchaser, state the assessment amount
135due, and state the due dates. Notwithstanding any provision of
136s. 718.116(5)(a) or s. 719.108(4) to the contrary, the lien is
137effective until satisfied or until 5 years have expired after
138the date the claim of lien is recorded unless, within that time,
139an action to enforce the lien is commenced pursuant to
140subsection (2). A claim of lien for assessments may include only
141assessments which are due when the claim is recorded. A claim of
142lien shall be signed and acknowledged by an officer or agent of
143the managing entity. Upon full payment, the person making the
144payment is entitled to receive a satisfaction of the lien.
145     Section 4.  Part III of chapter 721, Florida Statutes,
146entitled "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
149read:
150     721.81  Legislative purpose.-The purposes of this part are
151to:
152     (1)  Recognize that timeshare interests estates are parcels
153of real property used for vacation experience rather than for
154homestead or investment purposes and that there are numerous
155timeshare interests estates in this the state.
156     (2)  Recognize that the economic health and efficient
157operation of the vacation ownership industry are in part
158dependent upon the availability of an efficient and economical
159process for all timeshare interest foreclosures foreclosure.
160     (3)  Recognize the need to assist both owners' associations
161and mortgagees by simplifying and expediting the process for the
162judicial and trustee of foreclosure of assessment liens and
163mortgage liens against timeshare interests estates.
164     (4)  Improve judicial economy and reduce court congestion
165and the cost to taxpayers by establishing streamlined procedures
166for the judicial and trustee foreclosure of assessment liens and
167mortgage liens against timeshare interests estates.
168     (5)  Recognize that nearly all timeshare interest
169foreclosures are uncontested.
170     (6)  Protect the ability of consumers who own timeshare
171interests located in this state to choose a judicial proceeding
172for the foreclosure of an assessment lien or a mortgage lien
173against their timeshare interest.
174     (7)  Recognize that the use of the trustee foreclosure
175procedure established under ss. 721.855 and 721.856 shall have
176the same force and effect as the use of the judicial foreclosure
177procedure against a timeshare interest with respect to the
178provisions of this chapter or any other applicable law. However,
179obligors shall not be subject to a deficiency judgment even if
180the proceeds from the sale of the timeshare interest are
181insufficient to offset the amounts secured by the lien.
182     Section 6.  Section 721.82, Florida Statutes, is amended to
183read:
184     721.82  Definitions.-As used in this part, the term:
185     (1)  "Amounts secured by the lien" means all amounts
186secured by an assessment lien or mortgage lien, including, but
187not limited to, all past due amounts, accrued interest, late
188fees, taxes, advances for the payment of taxes, insurance and
189maintenance of the timeshare interest, and any fees or costs
190incurred by the lienholder or trustee, including any reasonable
191attorney's fees, trustee's fees, and costs incurred in
192connection with the default.
193     (2)(1)  "Assessment lien" means:
194     (a)  A lien for delinquent assessments as provided in ss.
195721.16, 718.116, and 719.108, and 721.16 as to timeshare
196condominiums; or
197     (b)  A lien for unpaid ad valorem assessments, tax
198assessments, taxes and special assessments as provided in s.
199192.037(8).
200     (3)(2)  "Junior interestholder" means any person who has a
201lien or interest of record against a timeshare interest estate
202in the county or counties in which the timeshare interest estate
203is located, which is inferior to the mortgage lien or assessment
204lien being foreclosed under this part.
205     (4)(3)  "Lienholder" means a holder of an assessment lien
206or a holder of a mortgage lien, as applicable. A receiver
207appointed under s. 721.26 is a lienholder for purposes of
208foreclosure of assessment liens under this part.
209     (5)(4)  "Mortgage" has the same meaning set forth in s.
210697.01.
211     (6)(5)  "Mortgage lien" means a security interest in a
212timeshare interest estate created by a mortgage encumbering the
213timeshare interest estate.
214     (7)(6)  "Mortgagee" means a person holding a mortgage lien.
215     (8)(7)  "Mortgagor" means a person granting a mortgage lien
216or a person who has assumed the obligation secured by a mortgage
217lien.
218     (9)(8)  "Notice address" means:
219     (a)  As to an assessment lien, the address of the current
220owner of a timeshare interest estate as reflected by the books
221and records of the timeshare plan under ss. 721.13(4) and
222721.15(7).
223     (b)  As to a mortgage lien:
224     1.  The address of the mortgagor as set forth in the
225mortgage, the promissory note or a separate document executed by
226the mortgagor at the time the mortgage lien was created, or the
227most current address of the mortgagor according to the records
228of the mortgagee; and
229     2.  If the current owner of the timeshare interest estate
230is different from the mortgagor, the address of the current
231owner of the timeshare interest estate as reflected by the books
232and records of the mortgagee.
233     (c)  As to a junior interestholder, the address as set
234forth in the recorded instrument creating the junior lien
235interest or interest lien, or in any recorded amendment
236supplement thereto changing the address, or in any written
237notification by the junior interestholder to the foreclosing
238lienholder changing the of such change in address.
239     (10)(9)  "Obligor" means the mortgagor, the person subject
240to an assessment lien, or the record owner of the timeshare
241interest estate.
242     (11)  "Permitted delivery service" means any nationally
243recognized common carrier delivery service or international
244airmail service that allows for return receipt service.
245     (12)(10)  "Registered agent" means an agent duly appointed
246by the obligor under s. 721.84 for the purpose of accepting all
247notices and service of process under this part. A registered
248agent may be an individual resident in this state whose business
249office qualifies as a registered office, or a domestic or
250foreign corporation or a not-for-profit corporation as defined
251in chapter 617 authorized to transact business or to conduct its
252affairs in this state, whose business office qualifies as a
253registered office. A registered agent for any obligor may not be
254the lienholder or the attorney for the lienholder.
255     (13)(11)  "Registered office" means the street address of
256the business office of the registered agent appointed under s.
257721.84, located in this state.
258     (14)  "Trustee" means an attorney who is a member in good
259standing of The Florida Bar and who has been practicing law for
260at least 5 years or that attorney's law firm, or a title insurer
261authorized to transact business in this state under s. 624.401
262and who has been authorized to transact business for at least 5
263years, appointed as trustee or as substitute trustee in
264accordance with s. 721.855 or s. 721.856. A receiver appointed
265under s. 721.26 may act as a trustee under s. 721.855. A trustee
266must be independent as defined in s. 721.05(20).
267     Section 7.  Section 721.83, Florida Statutes, is amended to
268read:
269     721.83  Consolidation of judicial foreclosure actions.-
270     (1)  A complaint in a foreclosure proceeding involving
271timeshare interests estates may join in the same action multiple
272defendant obligors and junior interestholders of separate
273timeshare interests estates, provided:
274     (a)  The foreclosure proceeding involves a single timeshare
275property.
276     (b)  The foreclosure proceeding is filed by a single
277plaintiff.
278     (c)  The default and remedy provisions in the written
279instruments on which the foreclosure proceeding is based are
280substantially the same for each defendant.
281     (d)  The nature of the defaults alleged is the same for
282each defendant.
283     (e)  No more than 15 timeshare interests estates, without
284regard to the number of defendants, are joined within the same
285consolidated foreclosure action.
286     (2)  In any foreclosure proceeding involving multiple
287defendants filed under subsection (1), the court shall sever for
288separate trial any count of the complaint in which a defense or
289counterclaim is timely raised by a defendant.
290     (3)  A consolidated timeshare foreclosure action shall be
291considered a single action, suit, or proceeding for the payment
292of filing fees and service charges pursuant to general law. In
293addition to the payment of such filing fees and service charges,
294an additional filing fee of up to $10 for each timeshare
295interest estate joined in that action shall be paid to the clerk
296of court.
297     Section 8.  Section 721.85, Florida Statutes, is amended to
298read:
299     721.85  Service to notice address or on registered agent.-
300     (1)  Service of process for a foreclosure proceeding
301involving a timeshare interest estate may be made by any means
302recognized by law. In addition, substituted service on an
303obligor a party who has appointed a registered agent under s.
304721.84 may be made on such registered agent at the registered
305office. Also, when using s. 48.194 where in rem or quasi in rem
306relief only is sought, such service of process provisions are
307modified in connection with a foreclosure proceeding against a
308timeshare interest estate to provide that:
309     (a)  Such service of process may be made on any person
310whether the person is located inside or outside this state, by
311certified mail, or registered mail, or permitted delivery
312service, return receipt requested, addressed to the person to be
313served at the notice address, or on the person's party's
314registered agent duly appointed under s. 721.84, at the
315registered office; and
316     (b)  Service shall be considered obtained upon the signing
317of the return receipt by any person at the notice address, or by
318the registered agent.
319     (2)  The current owner and the mortgagor of a timeshare
320interest estate must promptly notify the owners' association and
321the mortgagee of any change of address.
322     (3)  Substituted notice under s. 721.855 or s. 721.856 for
323any party who has appointed a registered agent under s. 721.84
324may be made on such registered agent at the registered office.
325     Section 9.  Section 721.855, Florida Statutes, is created
326to read:
327     721.855  Procedure for the trustee foreclosure of
328assessment liens.-The provisions of this section establish a
329trustee foreclosure procedure for assessment liens.
330     (1)  APPOINTMENT OF TRUSTEE.-
331     (a)  A trustee or a substitute trustee may be appointed by
332a lienholder at any time by recording a notice of appointment of
333trustee or notice of substitution of trustee in the official
334records of the county or counties in which the timeshare
335interest is located. A lienholder may appoint multiple trustees
336in a single appointment, and any appointed trustee may be used
337by the lienholder regarding the trustee foreclosure of any
338assessment lien under any timeshare plan for which the trustee
339is appointed.
340     (b)  A trustee shall use good faith, skill, care, and
341diligence in discharging all of the trustee duties under this
342section and shall deal honestly and fairly with all parties.
343     (c)  The recorded notice of appointment of trustee or
344notice of substitution of trustee shall contain the name and
345address of the trustee or substitute trustee, the name and
346address of the lienholder, and the name and address of the
347timeshare plan.
348     (2)  INITIATING THE USE OF A TRUSTEE FORECLOSURE
349PROCEDURE.-
350     (a)  Before initiating the trustee foreclosure procedure
351against any timeshare interest in a given timeshare plan:
352     1.  If a timeshare instrument contains any provision
353specifically prohibiting the use of the trustee foreclosure
354procedure, or if the managing entity otherwise determines that
355the timeshare instrument should be amended to specifically
356provide for the use of the trustee foreclosure procedure, an
357amendment to the timeshare instrument permitting the use of the
358trustee foreclosure procedure set forth in this section must be
359adopted and recorded prior to the use of the trustee foreclosure
360procedure. Such amendment to the timeshare instrument shall
361contain a statement in substantially the following form and may
362be adopted by a majority of those present and voting at a duly
363called meeting of the owners' association at which at least 15
364percent of the voting interest are present in person or by
365proxy:
366
367If a timeshare owner fails to make timely payments of
368timeshare plan common expenses, ad valorem taxes, or
369special assessments, an assessment lien against the
370timeshare owner's timeshare interest may be foreclosed
371in accordance with a judicial foreclosure procedure or
372a trustee foreclosure procedure, either of which may
373result in the loss of the timeshare owner's timeshare
374interest. If the managing entity initiates a trustee
375foreclosure procedure, the timeshare owner shall have
376the option to object pursuant to Florida law, and in
377such event the managing entity may thereafter proceed
378only by filing a judicial foreclosure action.
379
380     2.  The managing entity shall inform owners of timeshare
381interests in the timeshare plan in writing that the managing
382entity has the right to elect to use the trustee foreclosure
383procedure with respect to foreclosure of assessment liens as
384established in this section. The managing entity shall be deemed
385to have complied with the requirements of this subparagraph if
386the owners of timeshare interests in the given timeshare plan
387are informed by mail sent to each owner's notice address, in the
388notice of an annual or special meeting of the owners, by posting
389on the website of the applicable timeshare plan, or by any owner
390communication used by the managing entity.
391     (b)  Before initiating the trustee foreclosure procedure
392against any timeshare interest, a claim of lien against the
393timeshare interest shall be recorded under s. 721.16 or, if
394applicable, s. 718.116 or s. 719.108, and the notice of the
395intent to file a lien shall be given under s. 718.121 for
396timeshare condominiums and s. 719.108 for timeshare
397cooperatives.
398     (c)1.  In order to initiate a trustee foreclosure procedure
399against a timeshare interest, the lienholder shall deliver an
400affidavit to the trustee that identifies the obligor; the notice
401address of the obligor; the timeshare interest; the date that
402the notice of the intent to file a lien was given, if
403applicable; the official records book and page number where the
404claim of lien is recorded; and the name and notice address of
405any junior interestholder. The affidavit shall be accompanied by
406a title search of the timeshare interest identifying any junior
407interestholders of record, and the effective date of the title
408search must be a date that is within 60 calendar days before the
409date of the affidavit.
410     2.  The affidavit shall also state the facts that establish
411that the obligor has defaulted in the obligation to make a
412payment under a specified provision of the timeshare instrument
413or applicable law.
414     3.  The affidavit shall also specify the amounts secured by
415the lien as of the date of the affidavit and a per diem amount
416to account for further accrual of the amounts secured by the
417lien.
418     4.  The affidavit shall also state that the assessment lien
419was properly created and authorized pursuant to the timeshare
420instrument and applicable law.
421     (3)  OBLIGOR'S RIGHTS.-
422     (a)  The obligor may object to the lienholder's use of the
423trustee foreclosure procedure for a specific default any time
424before the sale of the timeshare interest under subsection (7)
425by delivering a written objection to the trustee using the
426objection form provided for in subsection (5). If the trustee
427receives the written objection from the obligor, the trustee may
428not proceed with the trustee foreclosure procedure as to the
429default specified in the notice of default and intent to
430foreclose under subsection (5), and the lienholder may proceed
431thereafter only with a judicial foreclosure action as to that
432specified default.
433     (b)  At any time before the trustee issues the certificate
434of sale under paragraph (7)(f), the obligor may cure the default
435and redeem the timeshare interest by paying the amounts secured
436by the lien in cash or certified funds to the trustee. After the
437trustee issues the certificate of sale, there is no right of
438redemption.
439     (4)  CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A
440trustee may sell an encumbered timeshare interest foreclosed
441under this section if:
442     (a)  The trustee has received the affidavit from the
443lienholder under paragraph (2)(c);
444     (b)  The trustee has not received a written objection to
445the use of the trustee foreclosure procedure under paragraph
446(3)(a) and the timeshare interest was not redeemed under
447paragraph (3)(b);
448     (c)  There is no lis pendens recorded and pending against
449the same timeshare interest and the trustee has not been served
450notice of the filing of any action to enjoin the trustee
451foreclosure sale;
452     (d)  The trustee has provided written notice of default and
453intent to foreclose as required under subsection (5) and a
454period of at least 30 calendar days has elapsed after such
455notice is deemed perfected under subsection (5); and
456     (e)  The notice of sale required under subsection (6) has
457been recorded in the official records of the county or counties
458in 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
461trustee is required to notify the obligor of the proceeding by
462sending the obligor a written notice of default and intent to
463foreclose to the notice address of the obligor by certified
464mail, registered mail, or permitted delivery service, return
465receipt requested, and by first-class mail or permitted delivery
466service, postage prepaid, as follows:
467     1.  The notice of default and intent to foreclose shall
468identify the obligor, the notice address of the obligor, the
469legal description of the timeshare interest, the nature of the
470default, the amounts secured by the lien, and a per diem amount
471to account for further accrual of the amounts secured by the
472lien and shall state the method by which the obligor may cure
473the default, including the period of time after the date of the
474notice of default and intent to foreclose within which the
475obligor may cure the default.
476     2.  The notice of default and intent to foreclose shall
477include an objection form with which the obligor can object to
478the use of the trustee foreclosure procedure by signing and
479returning the objection form to the trustee. The objection form
480shall identify the obligor, the notice address of the obligor,
481the timeshare interest, and the return address of the trustee
482and shall state: "The undersigned obligor exercises the
483obligor's right to object to the use of the trustee foreclosure
484procedure contained in section 721.855, Florida Statutes."
485     3.  The notice of default and intent to foreclose shall
486also contain a statement in substantially the following form:
487
488If you fail to cure the default as set forth in this
489notice or take other appropriate action with regard to
490this foreclosure matter, you risk losing ownership of
491your timeshare interest through the trustee
492foreclosure procedure established in section 721.855,
493Florida Statutes. You may choose to sign and send to
494the trustee the enclosed objection form, exercising
495your right to object to the use of the trustee
496foreclosure procedure. Upon the trustee's receipt of
497your signed objection form, the foreclosure of the
498lien with respect to the default specified in this
499notice shall be subject to the judicial foreclosure
500procedure only. You have the right to cure your
501default in the manner set forth in this notice at any
502time before the trustee's sale of your timeshare
503interest. If you do not object to the use of the
504trustee foreclosure procedure, you will not be subject
505to a deficiency judgment even if the proceeds from the
506sale of your timeshare interest are insufficient to
507offset the amounts secured by the lien.
508
509     4.  The trustee shall also mail a copy of the notice of
510default and intent to foreclose, without the objection form, to
511the notice address of any junior interestholder by certified
512mail, registered mail, or permitted delivery service, return
513receipt requested, and by first-class mail or permitted delivery
514service, postage prepaid.
515     5.  Notice under this paragraph is considered perfected
516upon the trustee receiving the return receipt bearing the
517signature of the obligor or junior interestholder, as
518applicable, within 30 calendar days after the trustee sent the
519notice under this paragraph. Notice under this paragraph is not
520perfected if the notice is returned as undeliverable within 30
521calendar days after the trustee sent the notice, if the trustee
522cannot ascertain from the receipt that the obligor or junior
523interestholder, as applicable, is the person who signed the
524receipt, or if the receipt from the obligor or junior
525interestholder, as applicable, is returned or refused within 30
526calendar days after the trustee sent the notice.
527     (b)  If the notice required by paragraph (a) is returned as
528undeliverable within 30 calendar days after the trustee sent the
529notice, the trustee shall perform a diligent search and inquiry
530to obtain a different address for the obligor or junior
531interestholder. For purposes of this paragraph, any address
532known and used by the lienholder for sending regular mailings or
533other communications from the lienholder to the obligor or
534junior interestholder, as applicable, shall be included with
535other addresses produced from the diligent search and inquiry,
536if any.
537     1.  If the trustee's diligent search and inquiry produces
538an address different from the notice address, the trustee shall
539mail a copy of the notice by certified mail, registered mail, or
540permitted delivery service, return receipt requested, and by
541first-class mail or permitted delivery service, postage prepaid,
542to the new address. Notice under this subparagraph is considered
543perfected upon the trustee receiving the return receipt bearing
544the signature of the obligor or junior interestholder, as
545applicable, within 30 calendar days after the trustee sent the
546notice under this subparagraph. Notice under this subparagraph
547is not perfected if the trustee cannot ascertain from the
548receipt that the obligor or junior interestholder, as
549applicable, is the person who signed the receipt or the receipt
550from the obligor or junior interestholder, as applicable, is
551returned refused. If the trustee does not perfect notice under
552this subparagraph, the trustee shall perfect service in the
553manner set forth in paragraph (c).
554     2.  If the trustee's diligent search and inquiry does not
555locate a different address for the obligor or junior
556interestholder, as applicable, the trustee may perfect notice
557against 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
560the notice was not perfected under subparagraph (b)1., the
561trustee may perfect notice by publication in a newspaper of
562general circulation in the county or counties in which the
563timeshare interest is located. The notice shall appear at least
564once a week for 2 consecutive weeks. The trustee may group an
565unlimited number of notices in the same publication, if all of
566the notices pertain to the same timeshare plan. Notice under
567this paragraph is considered perfected upon publication as
568required in this paragraph.
569     (d)  If notice is perfected under subparagraph (a)5., the
570trustee shall execute an affidavit in recordable form setting
571forth the manner in which notice was perfected and attach the
572affidavit to the certificate of compliance set forth in
573subsection (9). The affidavit shall state the nature of the
574notice, the date on which the notice was mailed, the name and
575address on the envelope containing the notice, the manner in
576which the notice was mailed, and the basis for that knowledge.
577     (e)  If notice is perfected under subparagraph (b)1., the
578trustee shall execute an affidavit in recordable form setting
579forth the manner in which notice was perfected and attach the
580affidavit to the certificate of compliance set forth in
581subsection (9). The affidavit shall state the nature of the
582notice, the dates on which the notice was mailed, the name and
583addresses on the envelopes containing the notice, the manner in
584which the notices were mailed, the fact that a signed receipt
585from the certified mail, registered mail, or permitted delivery
586service was timely received, and the name and address on the
587envelopes containing the notice.
588     (f)  If notice is perfected by publication under paragraph
589(c), the trustee shall execute an affidavit in recordable form
590setting forth the manner in which notice was perfected and
591attach the affidavit to the certificate of compliance set forth
592in subsection (9). The affidavit shall include all the
593information contained in either paragraph (d) or paragraph (e),
594as applicable, shall state that the notice was perfected by
595publication after diligent search and inquiry was made for the
596current address for the person, and shall include a statement
597that notice was perfected by publication, and shall set forth
598the information required by s. 49.041 in the case of a natural
599person or s. 49.051 in the case of a corporation, whichever is
600applicable. No other action of the trustee is necessary to
601perfect 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
605junior 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
609foreclosure.
610     5.  The official records book and page numbers where the
611claim of lien is recorded.
612     6.  The amounts secured by the lien and a per diem amount
613to account for further accrual of the amounts secured by the
614lien.
615     7.  The date, location, and starting time of the trustee's
616sale.
617     8.  The right of and the method by which the obligor may
618cure the default or the right of any junior interestholder to
619redeem its interest up to the date the trustee issues the
620certificate of sale in accordance with paragraph (7)(f).
621     (b)  The trustee shall send a copy of the notice of sale
622within 3 business days after the date it is submitted for
623recording, by first-class mail or permitted delivery service,
624postage prepaid, to the notice addresses of the obligor and any
625junior interestholder.
626     (c)  After the date of recording of the notice of sale,
627notice is not required to be given to any person claiming an
628interest in the timeshare interest except as provided in this
629section. The recording of the notice of sale has the same force
630and effect as the filing of a lis pendens in a judicial
631proceeding under s. 48.23.
632     (d)1.  The trustee shall publish the notice of sale in a
633newspaper of general circulation in the county or counties in
634which the timeshare interest is located at least once a week for
6352 consecutive weeks before the date of the sale. The last
636publication shall occur at least 5 calendar days before the
637sale.
638     2.  The trustee may group an unlimited number of notices of
639sale in the same publication, if all of the notices of sale
640pertain to the same timeshare plan.
641     (7)  MANNER OF SALE.-
642     (a)  The sale of a timeshare interest by the trustee in a
643public auction shall be held in the county in which the
644timeshare interest is located, on the date, location, and
645starting time designated in the notice of sale, which shall be
646after 9:00 a.m. but before 4:00 p.m. on a business day not less
647than 30 calendar days after the recording of the notice of sale.
648The trustee's sale may occur online at a specific website on the
649Internet or in any other manner used by the clerk of the court
650for a judicial foreclosure sales procedure in the county or
651counties in which the timeshare interest is located.
652     (b)  The trustee shall conduct the sale and act as the
653auctioneer.
654     (c)  The lienholder and any person other than the trustee
655may bid at the sale. In lieu of participating in the sale, the
656lienholder may send the trustee written bidding instructions
657that the trustee shall announce as appropriate during the sale.
658     (d)  The trustee may postpone the sale from time to time.
659In such case, notice of postponement must be given by the
660trustee at the date, time, and location contained in the notice
661of sale. The notice of sale for the postponed sale shall be
662mailed under paragraph (6)(b), recorded under paragraph (4)(e),
663and published under paragraph (6)(d). The effective date of the
664initial notice of sale under paragraph (6)(b) is not affected by
665a postponed sale.
666     (e)  The highest bidder of the timeshare interest shall pay
667the price bid to the trustee in cash or certified funds on the
668day of the sale. If the lienholder is the highest bidder, the
669lienholder shall receive a credit up to the amount set forth in
670the notice of sale as required under subparagraph (6)(a)6.
671     (f)  On the date of the sale and upon receipt of the cash
672or certified funds due from the highest bidder, the trustee
673shall issue to the highest bidder a certificate of sale stating
674that a foreclosure conforming to the requirements of this
675section has occurred, including the time, location, and date of
676the sale, that the timeshare interest was sold, the amounts
677secured by the lien, and the amount of the highest bid. A copy
678of the certificate of sale shall be mailed by certified mail,
679registered mail, or permitted delivery service, return receipt
680requested, to all persons entitled to receive a notice of sale
681under subsection (6).
682     (g)  Before a sale conducted under this subsection, a
683junior interestholder may pursue adjudication by court, by
684interpleader, or in any other authorized manner respecting any
685matter that is disputed by the junior interestholder.
686     (8)  EFFECT OF TRUSTEE'S SALE.-
687     (a)  A sale conducted under subsection (7) forecloses and
688terminates all interests of any person with notice to whom
689notice is given under paragraph (4)(d) and paragraph (6)(b), and
690of any other person claiming interests by, through, or under any
691such person, in the affected timeshare interest. A failure to
692give notice to any person entitled to notice does not affect the
693validity of the sale as to the interests of any person properly
694notified. A person entitled to notice but not given notice has
695the rights of a person not made a defendant in a judicial
696foreclosure.
697     (b)  On the issuance of a certificate of sale under
698paragraph (7)(f), all rights of redemption that have been
699foreclosed under this section shall terminate.
700     (c)  A sale conducted under subsection (7) releases the
701obligor's liability for all amounts secured by the lien. The
702lienholder has no right to any deficiency judgment against the
703obligor after a sale of the obligor's timeshare interest under
704this section.
705     (d)  The issuance and recording of the trustee's deed is
706presumed valid and may be relied upon by third parties without
707actual knowledge of irregularities in the foreclosure
708proceedings. If for any reason there is an irregularity in the
709foreclosure proceedings, a purchaser becomes subrogated to all
710the rights of the lienholder to the indebtedness that it secured
711to the extent necessary to reforeclose the assessment lien in
712order to correct the irregularity and becomes entitled to an
713action de novo for the foreclosure of such assessment lien. Any
714subsequent reforeclosure required to correct an irregularity may
715be conducted under this section.
716     (9)  TRUSTEE'S CERTIFICATE OF COMPLIANCE.-
717     (a)  Within 10 calendar days after the trustee conducts a
718sale, the trustee shall execute and acknowledge a certificate of
719compliance that:
720     1.  Confirms delivery of the notice of default and intent
721to foreclose and attaches the affidavit required under
722subsection (5).
723     2.  States that the default was not cured, that the trustee
724did not receive any written objection under paragraph (3)(a),
725and that the timeshare interest was not redeemed under paragraph
726(3)(b).
727     3.  Confirms that the notice of sale was published as
728required under paragraph (6)(d) and attaches an affidavit of
729publication for the notice of sale.
730     4.  Confirms that the notice of sale was mailed under
731paragraph (6)(b) together with a list of the parties to whom the
732notice of sale was mailed.
733     (b)  In furtherance of the execution of the certificate of
734compliance required under this subsection, the trustee is
735entitled to rely upon an affidavit or certification from the
736lienholder as to the facts and circumstances of default and
737failure to cure the default.
738     (10)  TRUSTEE'S DEED.-
739     (a)  The trustee's deed shall include the name and address
740of the trustee, the name and address of the highest bidder, the
741name of the former owner, a legal description of the timeshare
742interest, and the name and address of the preparer of the
743trustee's deed. The trustee's deed shall recite that the
744certificate of compliance was recorded and shall contain no
745warranties of title from the trustee. The certificate of
746compliance shall be attached as an exhibit to the trustee's
747deed.
748     (b)  Ten calendar days after a sale, absent the prior
749filing and service on the trustee of a judicial action to enjoin
750issuance of the trustee's deed to the timeshare interest, the
751trustee shall:
752     1.  Issue a trustee's deed to the highest bidder.
753     2.  Record the trustee's deed in the official records of
754the county or counties in which the timeshare interest is
755located.
756     (c)1.  The certificate of compliance and trustee's deed
757together are presumptive evidence of the truth of the matters
758set forth in them, and an action to set aside the sale and void
759the trustee's deed may not be filed or otherwise pursued against
760any person acquiring the timeshare interest for value.
761     2.  The trustee's deed conveys to the highest bidder all
762rights, title, and interest in the timeshare interest that the
763former owner had, or had the power to convey, at the time of the
764recording of the claim of lien, together with all rights, title,
765and interest that the former owner or his or her successors in
766interest acquired after the recording of the claim of lien.
767     3.  The issuance and recording of a trustee's deed shall
768have the same force and effect as the issuance and recording of
769a certificate of title by the clerk of the court in a judicial
770foreclosure action.
771     (11)  DISPOSITION OF PROCEEDS OF SALE.-
772     (a)  The trustee shall apply the proceeds of the sale as
773follows:
774     1.  To the expenses of the sale, including compensation of
775the trustee.
776     2.  To the amount owed and set forth in the notice as
777required in subparagraph (6)(a)6.
778     3.  If there are junior interestholders, the trustee may
779file an action in interpleader, pay the surplus to a court of
780competent jurisdiction, name the competing junior
781interestholders, and ask the court to determine the proper
782distribution of the surplus. In any interpleader action, the
783trustee shall recover reasonable attorney's fees and costs.
784     4.  If there are no junior interestholders, or if all
785junior interestholders have been paid, any surplus shall be paid
786to the former owner. If the trustee is unable to locate the
787former owner within 1 year after the sale, the surplus, if any,
788shall be deposited with the Chief Financial Officer under
789chapter 717.
790     (b)  In disposing of the proceeds of the sale, the trustee
791may rely on the information provided in the affidavit of the
792lienholder under paragraph (2)(c) and, in the event of a dispute
793or uncertainty over such claims, the trustee has the discretion
794to submit the matter to adjudication by court, by interpleader,
795or in any other authorized manner and shall recover reasonable
796attorney's fees and costs.
797     (12)  TRUSTEE FORECLOSURE ACTIONS.-The trustee foreclosure
798procedure established in this section does not impair or
799otherwise affect the lienholder's continuing right to bring a
800judicial foreclosure action, in lieu of using the trustee
801foreclosure procedure, with respect to any assessment lien.
802     (13)  APPLICATION.-This section applies to any default
803giving rise to the imposition of an assessment lien which occurs
804after the effective date of this section.
805     (14)  ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
806PROCEDURE.-
807     (a)  An action for actual damages for a material violation
808of this section may be brought by an obligor against the
809lienholder for the failure to follow the trustee foreclosure
810procedure contained in this section.
811     (b)  Any trustee who intentionally violates the provisions
812of this section concerning the trustee foreclosure procedure
813commits a felony of the third degree, punishable as provided in
814s. 775.082, s. 775.083, or s. 775.084.
815     Section 10.  Section 721.856, Florida Statutes, is created
816to read:
817     721.856  Procedure for the trustee foreclosure of mortgage
818liens.-The provisions of this section establish a trustee
819foreclosure procedure for mortgage liens.
820     (1)  APPOINTMENT OF TRUSTEE.-
821     (a)  A trustee or a substitute trustee may be appointed by
822a lienholder at any time by recording a notice of appointment of
823trustee or notice of substitution of trustee in the official
824records of the county or counties in which the timeshare
825interest is located. A lienholder may appoint multiple trustees
826in a single appointment, and any appointed trustee may be used
827by the lienholder regarding the trustee foreclosure of any
828mortgage lien.
829     (b)  A trustee shall use good faith, skill, care, and
830diligence in discharging all of the trustee duties under this
831section and shall deal honestly and fairly with all parties.
832     (c)  The recorded notice of appointment of trustee or
833notice of substitution of trustee shall contain the name and
834address of the trustee or substitute trustee, the name and
835address of the lienholder, and the name and address of the
836timeshare plan.
837     (2)  INITIATING THE TRUSTEE FORECLOSURE OF MORTGAGE LIENS.-
838     (a)  Before initiating the trustee foreclosure against a
839timeshare interest, the mortgage, or an amendment to a mortgage
840executed by the obligor before the effective date of this
841section, must contain a statement in substantially the following
842form:
843
844If the mortgagor fails to make timely payments under
845the obligation secured by this mortgage, or is
846otherwise deemed in uncured default of this mortgage,
847the lien against the mortgagor's timeshare interest
848created by this mortgage may be foreclosed in
849accordance with either a judicial foreclosure
850procedure or a trustee foreclosure procedure and may
851result in the loss of your timeshare interest. If the
852mortgagee initiates a trustee foreclosure procedure,
853the mortgagor shall have the option to object and the
854mortgagee may proceed only by filing a judicial
855foreclosure action.
856
857     (b)1.  In order to initiate a trustee foreclosure procedure
858against a timeshare interest, the lienholder shall deliver an
859affidavit to the trustee that identifies the obligor, the notice
860address of the obligor, the timeshare interest, the official
861records book and page number where the mortgage is recorded, and
862the name and notice address of any junior interestholder. The
863affidavit shall be accompanied by a title search of the
864timeshare interest identifying any junior interestholders of
865record, and the effective date of the title search must be a
866date that is within 60 calendar days before the date of the
867affidavit.
868     2.  The affidavit shall also state the facts that establish
869that the obligor has defaulted in the obligation to make a
870payment under a specified provision of the mortgage or is
871otherwise deemed in uncured default under a specified provision
872of the mortgage.
873     3.  The affidavit shall also specify the amounts secured by
874the lien as of the date of the affidavit and a per diem amount
875to account for further accrual of the amounts secured by the
876lien.
877     4.  The affidavit shall also state that the appropriate
878amount of documentary stamp tax and intangible taxes has been
879paid upon recording of the mortgage, or otherwise paid to the
880state.
881     5.  The affidavit shall also state that the lienholder is
882the holder of the note and has complied with all preconditions
883in the note and mortgage to determine the amounts secured by the
884lien and to initiate the use of the trustee foreclosure
885procedure.
886     (3)  OBLIGOR'S RIGHTS.-
887     (a)  The obligor may object to the lienholder's use of the
888trustee foreclosure procedure for a specific default any time
889before the sale of the timeshare interest under subsection (7)
890by delivering a written objection to the trustee using the
891objection form provided for in subsection (5). If the trustee
892receives the written objection from the obligor, the trustee may
893not proceed with the trustee foreclosure procedure as to the
894default specified in the notice of default and intent to
895foreclose under subsection (5), and the lienholder may proceed
896thereafter only with a judicial foreclosure action as to that
897specified default.
898     (b)  At any time before the trustee issues the certificate
899of sale under paragraph (7)(f), the obligor may cure the default
900and redeem the timeshare interest by paying the amounts secured
901by the lien in cash or certified funds to the trustee. After the
902trustee issues the certificate of sale, there is no right of
903redemption.
904     (4)  CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A
905trustee may sell an encumbered timeshare interest foreclosed
906under this section if:
907     (a)  The trustee has received the affidavit from the
908lienholder under paragraph (2)(b);
909     (b)  The trustee has not received a written objection to
910the use of the trustee foreclosure procedure under paragraph
911(3)(a) and the timeshare interest was not redeemed under
912paragraph (3)(b);
913     (c)  There is no lis pendens recorded and pending against
914the same timeshare interest, and the trustee has not been served
915notice of the filing of any action to enjoin the trustee
916foreclosure sale;
917     (d)  The trustee is in possession of the original
918promissory note executed by the mortgagor and secured by the
919mortgage lien;
920     (e)  The trustee has provided written notice of default and
921intent to foreclose as required under subsection (5) and a
922period of at least 30 calendar days has elapsed after such
923notice is deemed perfected under subsection (5); and
924     (f)  The notice of sale required under subsection (6) has
925been recorded in the official records of the county in which the
926mortgage was recorded.
927     (5)  NOTICE OF DEFAULT AND INTENT TO FORECLOSE.-
928     (a)  In any foreclosure proceeding under this section, the
929trustee is required to notify the obligor of the proceeding by
930sending the obligor a written notice of default and intent to
931foreclose to the notice address of the obligor by certified
932mail, registered mail, or permitted delivery service, return
933receipt requested, and by first-class mail or permitted delivery
934service, postage prepaid, as follows:
935     1.  The notice of default and intent to foreclose shall
936identify the obligor, the notice address of the obligor, the
937legal description of the timeshare interest, the nature of the
938default, the amounts secured by the lien, and a per diem amount
939to account for further accrual of the amounts secured by the
940lien and shall state the method by which the obligor may cure
941the default, including the period of time after the date of the
942notice of default and intent to foreclose within which the
943obligor may cure the default.
944     2.  The notice of default and intent to foreclose shall
945include an objection form with which the obligor can object to
946the use of the trustee foreclosure procedure by signing and
947returning the objection form to the trustee. The objection form
948shall identify the obligor, the notice address of the obligor,
949the timeshare interest, and the return address of the trustee
950and shall state: "The undersigned obligor exercises the
951obligor's right to object to the use of the trustee foreclosure
952procedure contained in section 721.856, Florida Statutes."
953     3.  The notice of default and intent to foreclose shall
954also contain a statement in substantially the following form:
955
956If you fail to cure the default as set forth in this
957notice or take other appropriate action with regard to
958this foreclosure matter, you risk losing ownership of
959your timeshare interest through the trustee
960foreclosure procedure established in section 721.856,
961Florida Statutes. You may choose to sign and send to
962the trustee the enclosed objection form, exercising
963your right to object to the use of the trustee
964foreclosure procedure. Upon the trustee's receipt of
965your signed objection form, the foreclosure of the
966lien with respect to the default specified in this
967notice shall be subject to the judicial foreclosure
968procedure only. You have the right to cure your
969default in the manner set forth in this notice at any
970time before the trustee's sale of your timeshare
971interest. If you do not object to the use of the
972trustee foreclosure procedure, you will not be subject
973to a deficiency judgment even if the proceeds from the
974sale of your timeshare interest are insufficient to
975offset the amounts secured by the lien.
976
977     4.  The trustee shall also mail a copy of the notice of
978default and intent to foreclose, without the objection form, to
979the notice address of any junior interestholder by certified
980mail, registered mail, or permitted delivery service, return
981receipt requested, and by first-class mail or permitted delivery
982service, postage prepaid.
983     5.  Notice under this paragraph is considered perfected
984upon the trustee receiving the return receipt bearing the
985signature of the obligor or junior interestholder, as
986applicable, within 30 calendar days after the trustee sent the
987notice under this paragraph. Notice under this paragraph is not
988perfected if the notice is returned as undeliverable within 30
989calendar days after the trustee sent the notice, if the trustee
990cannot ascertain from the receipt that the obligor or junior
991interestholder, as applicable, is the person who signed the
992receipt, or if the receipt from the obligor or junior
993interestholder, as applicable, is returned or refused within 30
994calendar days after the trustee sent the notice.
995     (b)  If the notice required by paragraph (a) is returned as
996undeliverable within 30 calendar days after the trustee sent the
997notice, the trustee shall perform a diligent search and inquiry
998to obtain a different address for the obligor or junior
999interestholder. For purposes of this paragraph, any address
1000known and used by the lienholder for sending regular mailings or
1001other communications from the lienholder to the obligor or
1002junior interestholder, as applicable, shall be included with
1003other addresses produced from the diligent search and inquiry,
1004if any.
1005     1.  If the trustee's diligent search and inquiry produces
1006an address different from the notice address, the trustee shall
1007mail a copy of the notice by certified mail, registered mail, or
1008permitted delivery service, return receipt requested, and by
1009first-class mail or permitted delivery service, postage prepaid,
1010to the new address. Notice under this subparagraph is considered
1011perfected upon the trustee receiving the return receipt bearing
1012the signature of the obligor or junior interestholder, as
1013applicable, within 30 calendar days after the trustee sent the
1014notice under this subparagraph. Notice under this subparagraph
1015is not perfected if the trustee cannot ascertain from the
1016receipt that the obligor or junior interestholder, as
1017applicable, is the person who signed the receipt or the receipt
1018from the obligor or junior interestholder, as applicable, is
1019returned refused. If the trustee does not perfect notice under
1020this subparagraph, the trustee shall perfect service in the
1021manner set forth in paragraph (c).
1022     2.  If the trustee's diligent search and inquiry does not
1023locate a different address for the obligor or junior
1024interestholder, as applicable, the trustee may perfect notice
1025against 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
1028the notice was not perfected under subparagraph (b)1., the
1029trustee may perfect notice by publication in a newspaper of
1030general circulation in the county or counties in which the
1031timeshare interest is located. The notice shall appear at least
1032once a week for 2 consecutive weeks. The trustee may group an
1033unlimited number of notices in the same publication, if all of
1034the notices pertain to the same timeshare plan. Notice under
1035this paragraph is considered perfected upon publication as
1036required in this paragraph.
1037     (d)  If notice is perfected under subparagraph (a)5., the
1038trustee shall execute an affidavit in recordable form setting
1039forth the manner in which notice was perfected and attach the
1040affidavit to the certificate of compliance set forth in
1041subsection (9). The affidavit shall state the nature of the
1042notice, the date on which the notice was mailed, the name and
1043address on the envelope containing the notice, the manner in
1044which the notice was mailed, and the basis for that knowledge.
1045     (e)  If notice is perfected under subparagraph (b)1., the
1046trustee shall execute an affidavit in recordable form setting
1047forth the manner in which notice was perfected and attach the
1048affidavit to the certificate of compliance set forth in
1049subsection (9). The affidavit shall state the nature of the
1050notice, the dates on which the notice was mailed, the name and
1051addresses on the envelopes containing the notice, the manner in
1052which the notice was mailed, the fact that a signed receipt from
1053the certified mail, registered mail, or permitted delivery
1054service was timely received, and the name and address on the
1055envelopes containing the notice.
1056     (f)  If notice is perfected under paragraph (c), the
1057trustee shall execute an affidavit in recordable form setting
1058forth the manner in which notice was perfected and attach the
1059affidavit to the certificate of compliance set forth in
1060subsection (9). The affidavit shall include all the information
1061contained in either paragraph (d) or paragraph (e), as
1062applicable, shall state that the notice was perfected by
1063publication after diligent search and inquiry was made for the
1064current address for the person, shall include a statement that
1065notice was perfected by publication, and shall set forth the
1066information required by s. 49.041 in the case of a natural
1067person or s. 49.051 in the case of a corporation, whichever is
1068applicable. No other action of the trustee is necessary to
1069perfect 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
1073junior 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
1077foreclosure.
1078     5.  The official records book and page numbers where the
1079mortgage is recorded.
1080     6.  The amounts secured by the lien and a per diem amount
1081to account for further accrual of the amounts secured by the
1082lien.
1083     7.  The date, location, and starting time of the trustee's
1084sale.
1085     8.  The right of and the method by which the obligor may
1086cure the default or the right of any junior interestholder to
1087redeem its interest up to the date the trustee issues the
1088certificate of sale in accordance with paragraph (7)(f).
1089     (b)  The trustee shall send a copy of the notice of sale
1090within 3 business days after the date it is submitted for
1091recording, by first-class mail or permitted delivery service,
1092postage prepaid, to the notice addresses of the obligor and any
1093junior interestholder.
1094     (c)  After the date of recording of the notice of sale,
1095notice is not required to be given to any person claiming an
1096interest in the timeshare interest except as provided in this
1097section. The recording of the notice of sale has the same force
1098and effect as the filing of a lis pendens in a judicial
1099proceeding under s. 48.23.
1100     (d)1.  The trustee shall publish the notice of sale in a
1101newspaper of general circulation in the county or counties in
1102which the timeshare interest is located at least once a week for
11032 consecutive weeks before the date of the sale. The last
1104publication shall occur at least 5 calendar days before the
1105sale.
1106     2.  The trustee may group an unlimited number of notices of
1107sale in the same publication, if all of the notices of sale
1108pertain to the same timeshare plan.
1109     (7)  MANNER OF SALE.-
1110     (a)  The sale of a timeshare interest by the trustee in a
1111public auction shall be held in the county in which the
1112timeshare interest is located, on the date, location, and
1113starting time designated in the notice of sale, which shall be
1114after 9:00 a.m. but before 4:00 p.m. on a business day not less
1115than 30 calendar days after the recording of the notice of sale.
1116The trustee's sale may occur online at a specific website on the
1117Internet or in any other manner used by the clerk of the court
1118for a judicial foreclosure sales procedure in the county or
1119counties in which the timeshare interest is located.
1120     (b)  The trustee shall conduct the sale and act as the
1121auctioneer.
1122     (c)  The lienholder and any person other than the trustee
1123may bid at the sale. In lieu of participating in the sale, the
1124lienholder may send the trustee written bidding instructions
1125that the trustee shall announce as appropriate during the sale.
1126     (d)  The trustee may postpone the sale from time to time.
1127In such case, notice of postponement must be given by the
1128trustee at the date, time, and location contained in the notice
1129of sale. The notice of sale for the postponed sale shall be
1130mailed under paragraph (6)(b), recorded under paragraph (4)(f),
1131and published under paragraph (6)(d). The effective date of the
1132initial notice of sale under paragraph (6)(b) is not affected by
1133a postponed sale.
1134     (e)  The highest bidder of the timeshare interest shall pay
1135the price bid to the trustee in cash or certified funds on the
1136day of the sale. If the lienholder is the highest bidder, the
1137lienholder shall receive a credit up to the amount set forth in
1138the notice of sale as required under subparagraph (6)(a)6.
1139     (f)  On the date of the sale and upon receipt of the cash
1140or certified funds due from the highest bidder, the trustee
1141shall issue to the highest bidder a certificate of sale stating
1142that a foreclosure conforming to the requirements of this
1143section has occurred, including the time, location, and date of
1144the sale, that the timeshare interest was sold, the amounts
1145secured by the lien, and the amount of the highest bid. A copy
1146of the certificate of sale shall be mailed by certified mail,
1147registered mail, or permitted delivery service, return receipt
1148requested, to all persons entitled to receive a notice of sale
1149under subsection (6).
1150     (g)  Before a sale conducted pursuant to this subsection, a
1151junior interestholder may pursue adjudication by court, by
1152interpleader, or in any other authorized manner respecting any
1153matter that is disputed by the junior interestholder.
1154     (8)  EFFECT OF TRUSTEE'S SALE.-
1155     (a)  A sale conducted under subsection (7) forecloses and
1156terminates all interests of any person with notice to whom
1157notice is given under paragraph (4)(e) and paragraph (6)(b), and
1158of any other person claiming interests by, through, or under any
1159such person, in the affected timeshare interest. A failure to
1160give notice to any person entitled to notice does not affect the
1161validity of the sale as to the interests of any person properly
1162notified. A person entitled to notice but not given notice has
1163the rights of a person not made a defendant in a judicial
1164foreclosure.
1165     (b)  On the issuance of a certificate of sale under
1166paragraph (7)(f), all rights of redemption that have been
1167foreclosed under this section shall terminate.
1168     (c)  A sale conducted under subsection (7) releases the
1169obligor's liability for all amounts secured by the lien. The
1170lienholder has no right to any deficiency judgment against the
1171obligor after a sale of the obligor's timeshare interest under
1172this section.
1173     (d)  The issuance and recording of the trustee's deed is
1174presumed valid and may be relied upon by third parties without
1175actual knowledge of any irregularities in the foreclosure
1176proceedings. If for any reason there is an irregularity in the
1177foreclosure proceedings, a purchaser becomes subrogated to all
1178the rights of the lienholder to the indebtedness that it secured
1179to the extent necessary to reforeclose the mortgage lien in
1180order to correct the irregularity and becomes entitled to an
1181action de novo for the foreclosure of such mortgage lien. Any
1182subsequent reforeclosure required to correct an irregularity may
1183be conducted under this section.
1184     (9)  TRUSTEE'S CERTIFICATE OF COMPLIANCE.-
1185     (a)  Within 10 calendar days after the trustee conducts a
1186sale, the trustee shall execute and acknowledge a certificate of
1187compliance which:
1188     1.  Confirms delivery of the notice of default and intent
1189to foreclose and attaches the affidavit required under
1190subsection (5).
1191     2.  States that the default was not cured, that the trustee
1192did not receive any written objection under paragraph (3)(a),
1193and that the timeshare interest was not redeemed under paragraph
1194(3)(b).
1195     3.  States that the trustee is in possession of the
1196original promissory note executed by the mortgagor and secured
1197by the mortgage lien.
1198     4.  Confirms that the notice of sale was published as
1199required under paragraph (6)(d) and attaches an affidavit of
1200publication for the notice of sale.
1201     5.  Confirms that the notice of sale was mailed under
1202paragraph (6)(b) together with a list of the parties to whom the
1203notice of sale was mailed.
1204     (b)  In furtherance of the execution of the certificate of
1205compliance required under this subsection, the trustee is
1206entitled to rely upon an affidavit or certification from the
1207lienholder as to the facts and circumstances of default and
1208failure to cure the default.
1209     (10)  TRUSTEE'S DEED.-
1210     (a)  The trustee's deed shall include the name and address
1211of the trustee, the name and address of the highest bidder, the
1212name of the former owner, a legal description of the timeshare
1213interest, and the name and address of the preparer of the
1214trustee's deed. The trustee's deed shall recite that the
1215certificate of compliance was recorded and shall contain no
1216warranties of title from the trustee. The certificate of
1217compliance shall be attached as an exhibit to the trustee's
1218deed.
1219     (b)  Ten calendar days after a sale, absent the prior
1220filing and service on the trustee of a judicial action to enjoin
1221issuance of the trustee's deed to the timeshare interest, the
1222trustee shall:
1223     1.  Cancel the original promissory note executed by the
1224mortgagor 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
1227the county or counties in which the timeshare interest is
1228located.
1229     (c)1.  The certificate of compliance and trustee's deed
1230together are presumptive evidence of the truth of the matters
1231set forth in them, and an action to set aside the sale and void
1232the trustee's deed may not be filed or otherwise pursued against
1233any person acquiring the timeshare interest for value.
1234     2.  The trustee's deed conveys to the highest bidder all
1235rights, title, and interest in the timeshare interest that the
1236former owner had, or had the power to convey, together with all
1237rights, title, and interest that the former owner or his or her
1238successors in interest acquired after the execution of the
1239mortgage.
1240     3.  The issuance and recording of a trustee's deed shall
1241have the same force and effect as the issuance and recording of
1242a certificate of title by the clerk of the court in a judicial
1243foreclosure action.
1244     (11)  DISPOSITION OF PROCEEDS OF SALE.-
1245     (a)  The trustee shall apply the proceeds of the sale as
1246follows:
1247     1.  To the expenses of the sale, including compensation of
1248the trustee.
1249     2.  To the amount owed and set forth in the notice as
1250required under subparagraph (6)(a)6.
1251     3.  If there are junior interestholders, the trustee may
1252file an action in interpleader, pay the surplus to a court of
1253competent jurisdiction, name the competing junior
1254interestholders, and ask the court to determine the proper
1255distribution of the surplus. In any interpleader action, the
1256trustee shall recover reasonable attorney's fees and costs.
1257     4.  If there are no junior interestholders, or if all
1258junior interestholders have been paid, any surplus shall be paid
1259to the former owner. If the trustee is unable to locate the
1260former owner within 1 year after the sale, the surplus, if any,
1261shall be deposited with the Chief Financial Officer under
1262chapter 717.
1263     (b)  In disposing of the proceeds of the sale, the trustee
1264may rely on the information provided in the affidavit of the
1265lienholder under paragraph (2)(b) and, in the event of a dispute
1266or uncertainty over such claims, the trustee has the discretion
1267to submit the matter to adjudication by court, by interpleader,
1268or in any other authorized manner and shall recover reasonable
1269attorney's fees and costs.
1270     (12)  JUDICIAL FORECLOSURE ACTIONS.-The trustee foreclosure
1271procedure established in this section does not impair or
1272otherwise affect the lienholder's continuing right to bring a
1273judicial foreclosure action, in lieu of using the trustee
1274foreclosure procedure, with respect to any mortgage lien.
1275     (13)  ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
1276PROCEDURE.-
1277     (a)  An action for actual damages for a material violation
1278of this section may be brought by an obligor against the
1279lienholder for the failure to follow the trustee foreclosure
1280procedure contained in this section.
1281     (b)  Any trustee who intentionally violates the provisions
1282of this section concerning the trustee foreclosure procedure
1283commits a felony of the third degree, punishable as provided in
1284s. 775.082, s. 775.083, or s. 775.084.
1285     Section 11.  Subsections (1) and (4) of section 721.86,
1286Florida Statutes, are amended to read:
1287     721.86  Miscellaneous provisions.-
1288     (1)  In the event of a conflict between the provisions of
1289this part and the other provisions of this chapter, chapter 702,
1290or other applicable law, the provisions of this part shall
1291prevail. The procedures in this part must be given effect in the
1292context of any foreclosure proceedings against timeshare
1293interests estates governed by this chapter, chapter 702, chapter
1294718, or chapter 719.
1295     (4)  In addition to assessment liens and mortgage liens
1296arising after the effective date of this part, except as
1297provided in s. 721.855(13), the provisions of this part apply to
1298all assessment liens and mortgage liens existing prior to the
1299effective date of this act regarding which a foreclosure
1300proceeding has not yet commenced.
1301     Section 12.  Subsection (2) of section 721.20, Florida
1302Statutes, is amended to read:
1303     721.20  Licensing requirements; suspension or revocation of
1304license; exceptions to applicability; collection of advance fees
1305for listings unlawful.-
1306     (2)  Solicitors who engage only in the solicitation of
1307prospective purchasers and any purchaser who refers no more than
130820 people to a developer or managing entity per year or who
1309otherwise provides testimonials on behalf of a developer or
1310managing entity are exempt from the provisions of chapter 475.
1311     Section 13.  This act shall take effect upon becoming a
1312law.


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