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. |