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; imposing an administrative fee on certain
65recorded trustee deeds; providing that revenues from such
66fees be deposited into the State Courts Revenue Trust
67Fund; providing an effective date.
68
69Be It Enacted by the Legislature of the State of Florida:
70
71     Section 1.  Paragraph (jj) is added to subsection (5) of
72section 721.07, Florida Statutes, to read:
73     721.07  Public offering statement.-Prior to offering any
74timeshare plan, the developer must submit a filed public
75offering statement to the division for approval as prescribed by
76s. 721.03, s. 721.55, or this section. Until the division
77approves such filing, any contract regarding the sale of that
78timeshare plan is subject to cancellation by the purchaser
79pursuant to s. 721.10.
80     (5)  Every filed public offering statement for a timeshare
81plan which is not a multisite timeshare plan shall contain the
82information required by this subsection. The division is
83authorized to provide by rule the method by which a developer
84must provide such information to the division.
85     (jj)  The following statement in conspicuous type:
86
87The managing entity has a lien against each timeshare
88interest to secure the payment of assessments, ad
89valorem assessments, tax assessments, and special
90assessments. Your failure to make any required
91payments may result in the judicial or trustee
92foreclosure of an assessment lien and the loss of your
93timeshare interest. If the managing entity initiates a
94trustee foreclosure procedure, you shall have the
95option to object to the use of the trustee foreclosure
96procedure and the managing entity may only proceed by
97filing a judicial foreclosure action.
98     Section 2.  Subsection (13) is added to section 721.13,
99Florida Statutes, to read:
100     721.13  Management.-
101     (13)  Notwithstanding any provisions of chapter 607,
102chapter 617, or chapter 718, an officer, director, or agent of
103an owners' association shall discharge his or her duties in good
104faith, with the care an ordinarily prudent person in a like
105position would exercise under similar circumstances, and in a
106manner he or she reasonably believes to be in the interests of
107the owners' association. An officer, director, or agent of an
108owners' association shall be exempt from liability for monetary
109damages in the same manner as provided in s. 617.0834 unless
110such officer, director, or agent breached or failed to perform
111his or her duties and the breach of, or failure to perform, his
112or her duties constitutes a violation of criminal law as
113provided in s. 617.0834; constitutes a transaction from which
114the officer or director derived an improper personal benefit,
115either directly or indirectly; or constitutes recklessness or an
116act or omission that was in bad faith, with malicious purpose,
117or in a manner exhibiting wanton and willful disregard of human
118rights, safety, or property.
119     Section 3.  Subsections (2) and (3) of section 721.16,
120Florida Statutes, are amended to read:
121     721.16  Liens for overdue assessments; liens for labor
122performed on, or materials furnished to, a timeshare unit.-
123     (2)  The managing entity may bring a judicial an action in
124its name to foreclose a lien under subsection (1) in the manner
125a mortgage of real property is foreclosed and may also bring an
126action to recover a money judgment for the unpaid assessments
127without waiving any claim of lien. As an alternative to
128initiating a judicial action, the managing entity may initiate a
129trustee procedure to foreclose an assessment lien under s.
130721.855.
131     (3)  The lien is effective from the date of recording a
132claim of lien in the official public records of the county or
133counties in which the timeshare interest is accommodations and
134facilities constituting the timeshare plan are located. The
135claim of lien shall state the name of the timeshare plan and
136identify the timeshare interest for which the lien is effective,
137state the name of the purchaser, state the assessment amount
138due, and state the due dates. Notwithstanding any provision of
139s. 718.116(5)(a) or s. 719.108(4) to the contrary, the lien is
140effective until satisfied or until 5 years have expired after
141the date the claim of lien is recorded unless, within that time,
142an action to enforce the lien is commenced pursuant to
143subsection (2). A claim of lien for assessments may include only
144assessments which are due when the claim is recorded. A claim of
145lien shall be signed and acknowledged by an officer or agent of
146the managing entity. Upon full payment, the person making the
147payment is entitled to receive a satisfaction of the lien.
148     Section 4.  Part III of chapter 721, Florida Statutes,
149entitled "Foreclosure of Liens on Timeshare Estates," is renamed
150"Foreclosure of Liens on Timeshare Interests."
151     Section 5.  Section 721.81, Florida Statutes, is amended to
152read:
153     721.81  Legislative purpose.-The purposes of this part are
154to:
155     (1)  Recognize that timeshare interests estates are parcels
156of real property used for vacation experience rather than for
157homestead or investment purposes and that there are numerous
158timeshare interests estates in this the state.
159     (2)  Recognize that the economic health and efficient
160operation of the vacation ownership industry are in part
161dependent upon the availability of an efficient and economical
162process for all timeshare interest foreclosures foreclosure.
163     (3)  Recognize the need to assist both owners' associations
164and mortgagees by simplifying and expediting the process for the
165judicial and trustee of foreclosure of assessment liens and
166mortgage liens against timeshare interests estates.
167     (4)  Improve judicial economy and reduce court congestion
168and the cost to taxpayers by establishing streamlined procedures
169for the judicial and trustee foreclosure of assessment liens and
170mortgage liens against timeshare interests estates.
171     (5)  Recognize that nearly all timeshare interest
172foreclosures are uncontested.
173     (6)  Protect the ability of consumers who own timeshare
174interests located in this state to choose a judicial proceeding
175for the foreclosure of an assessment lien or a mortgage lien
176against their timeshare interest.
177     (7)  Recognize that the use of the trustee foreclosure
178procedure established under ss. 721.855 and 721.856 shall have
179the same force and effect as the use of the judicial foreclosure
180procedure against a timeshare interest with respect to the
181provisions of this chapter or any other applicable law. However,
182obligors shall not be subject to a deficiency judgment even if
183the proceeds from the sale of the timeshare interest are
184insufficient to offset the amounts secured by the lien.
185     Section 6.  Section 721.82, Florida Statutes, is amended to
186read:
187     721.82  Definitions.-As used in this part, the term:
188     (1)  "Amounts secured by the lien" means all amounts
189secured by an assessment lien or mortgage lien, including, but
190not limited to, all past due amounts, accrued interest, late
191fees, taxes, advances for the payment of taxes, insurance and
192maintenance of the timeshare interest, and any fees or costs
193incurred by the lienholder or trustee, including any reasonable
194attorney's fees, trustee's fees, and costs incurred in
195connection with the default.
196     (2)(1)  "Assessment lien" means:
197     (a)  A lien for delinquent assessments as provided in ss.
198721.16, 718.116, and 719.108, and 721.16 as to timeshare
199condominiums; or
200     (b)  A lien for unpaid ad valorem assessments, tax
201assessments, taxes and special assessments as provided in s.
202192.037(8).
203     (3)(2)  "Junior interestholder" means any person who has a
204lien or interest of record against a timeshare interest estate
205in the county or counties in which the timeshare interest estate
206is located, which is inferior to the mortgage lien or assessment
207lien being foreclosed under this part.
208     (4)(3)  "Lienholder" means a holder of an assessment lien
209or a holder of a mortgage lien, as applicable. A receiver
210appointed under s. 721.26 is a lienholder for purposes of
211foreclosure of assessment liens under this part.
212     (5)(4)  "Mortgage" has the same meaning set forth in s.
213697.01.
214     (6)(5)  "Mortgage lien" means a security interest in a
215timeshare interest estate created by a mortgage encumbering the
216timeshare interest estate.
217     (7)(6)  "Mortgagee" means a person holding a mortgage lien.
218     (8)(7)  "Mortgagor" means a person granting a mortgage lien
219or a person who has assumed the obligation secured by a mortgage
220lien.
221     (9)(8)  "Notice address" means:
222     (a)  As to an assessment lien, the address of the current
223owner of a timeshare interest estate as reflected by the books
224and records of the timeshare plan under ss. 721.13(4) and
225721.15(7).
226     (b)  As to a mortgage lien:
227     1.  The address of the mortgagor as set forth in the
228mortgage, the promissory note or a separate document executed by
229the mortgagor at the time the mortgage lien was created, or the
230most current address of the mortgagor according to the records
231of the mortgagee; and
232     2.  If the current owner of the timeshare interest estate
233is different from the mortgagor, the address of the current
234owner of the timeshare interest estate as reflected by the books
235and records of the mortgagee.
236     (c)  As to a junior interestholder, the address as set
237forth in the recorded instrument creating the junior lien
238interest or interest lien, or in any recorded amendment
239supplement thereto changing the address, or in any written
240notification by the junior interestholder to the foreclosing
241lienholder changing the of such change in address.
242     (10)(9)  "Obligor" means the mortgagor, the person subject
243to an assessment lien, or the record owner of the timeshare
244interest estate.
245     (11)  "Permitted delivery service" means any nationally
246recognized common carrier delivery service or international
247airmail service that allows for return receipt service.
248     (12)(10)  "Registered agent" means an agent duly appointed
249by the obligor under s. 721.84 for the purpose of accepting all
250notices and service of process under this part. A registered
251agent may be an individual resident in this state whose business
252office qualifies as a registered office, or a domestic or
253foreign corporation or a not-for-profit corporation as defined
254in chapter 617 authorized to transact business or to conduct its
255affairs in this state, whose business office qualifies as a
256registered office. A registered agent for any obligor may not be
257the lienholder or the attorney for the lienholder.
258     (13)(11)  "Registered office" means the street address of
259the business office of the registered agent appointed under s.
260721.84, located in this state.
261     (14)  "Trustee" means an attorney who is a member in good
262standing of The Florida Bar and who has been practicing law for
263at least 5 years or that attorney's law firm, or a title insurer
264authorized to transact business in this state under s. 624.401
265and who has been authorized to transact business for at least 5
266years, appointed as trustee or as substitute trustee in
267accordance with s. 721.855 or s. 721.856. A receiver appointed
268under s. 721.26 may act as a trustee under s. 721.855. A trustee
269must be independent as defined in s. 721.05(20).
270     Section 7.  Section 721.83, Florida Statutes, is amended to
271read:
272     721.83  Consolidation of judicial foreclosure actions.-
273     (1)  A complaint in a foreclosure proceeding involving
274timeshare interests estates may join in the same action multiple
275defendant obligors and junior interestholders of separate
276timeshare interests estates, provided:
277     (a)  The foreclosure proceeding involves a single timeshare
278property.
279     (b)  The foreclosure proceeding is filed by a single
280plaintiff.
281     (c)  The default and remedy provisions in the written
282instruments on which the foreclosure proceeding is based are
283substantially the same for each defendant.
284     (d)  The nature of the defaults alleged is the same for
285each defendant.
286     (e)  No more than 15 timeshare interests estates, without
287regard to the number of defendants, are joined within the same
288consolidated foreclosure action.
289     (2)  In any foreclosure proceeding involving multiple
290defendants filed under subsection (1), the court shall sever for
291separate trial any count of the complaint in which a defense or
292counterclaim is timely raised by a defendant.
293     (3)  A consolidated timeshare foreclosure action shall be
294considered a single action, suit, or proceeding for the payment
295of filing fees and service charges pursuant to general law. In
296addition to the payment of such filing fees and service charges,
297an additional filing fee of up to $10 for each timeshare
298interest estate joined in that action shall be paid to the clerk
299of court.
300     Section 8.  Section 721.85, Florida Statutes, is amended to
301read:
302     721.85  Service to notice address or on registered agent.-
303     (1)  Service of process for a foreclosure proceeding
304involving a timeshare interest estate may be made by any means
305recognized by law. In addition, substituted service on an
306obligor a party who has appointed a registered agent under s.
307721.84 may be made on such registered agent at the registered
308office. Also, when using s. 48.194 where in rem or quasi in rem
309relief only is sought, such service of process provisions are
310modified in connection with a foreclosure proceeding against a
311timeshare interest estate to provide that:
312     (a)  Such service of process may be made on any person
313whether the person is located inside or outside this state, by
314certified mail, or registered mail, or permitted delivery
315service, return receipt requested, addressed to the person to be
316served at the notice address, or on the person's party's
317registered agent duly appointed under s. 721.84, at the
318registered office; and
319     (b)  Service shall be considered obtained upon the signing
320of the return receipt by any person at the notice address, or by
321the registered agent.
322     (2)  The current owner and the mortgagor of a timeshare
323interest estate must promptly notify the owners' association and
324the mortgagee of any change of address.
325     (3)  Substituted notice under s. 721.855 or s. 721.856 for
326any party who has appointed a registered agent under s. 721.84
327may be made on such registered agent at the registered office.
328     Section 9.  Section 721.855, Florida Statutes, is created
329to read:
330     721.855  Procedure for the trustee foreclosure of
331assessment liens.-The provisions of this section establish a
332trustee foreclosure procedure for assessment liens.
333     (1)  APPOINTMENT OF TRUSTEE.-
334     (a)  A trustee or a substitute trustee may be appointed by
335a lienholder at any time by recording a notice of appointment of
336trustee or notice of substitution of trustee in the official
337records of the county or counties in which the timeshare
338interest is located. A lienholder may appoint multiple trustees
339in a single appointment, and any appointed trustee may be used
340by the lienholder regarding the trustee foreclosure of any
341assessment lien under any timeshare plan for which the trustee
342is appointed.
343     (b)  A trustee shall use good faith, skill, care, and
344diligence in discharging all of the trustee duties under this
345section and shall deal honestly and fairly with all parties.
346     (c)  The recorded notice of appointment of trustee or
347notice of substitution of trustee shall contain the name and
348address of the trustee or substitute trustee, the name and
349address of the lienholder, and the name and address of the
350timeshare plan.
351     (2)  INITIATING THE USE OF A TRUSTEE FORECLOSURE
352PROCEDURE.-
353     (a)  Before initiating the trustee foreclosure procedure
354against any timeshare interest in a given timeshare plan:
355     1.  If a timeshare instrument contains any provision
356specifically prohibiting the use of the trustee foreclosure
357procedure, or if the managing entity otherwise determines that
358the timeshare instrument should be amended to specifically
359provide for the use of the trustee foreclosure procedure, an
360amendment to the timeshare instrument permitting the use of the
361trustee foreclosure procedure set forth in this section must be
362adopted and recorded prior to the use of the trustee foreclosure
363procedure. Such amendment to the timeshare instrument shall
364contain a statement in substantially the following form and may
365be adopted by a majority of those present and voting at a duly
366called meeting of the owners' association at which at least 15
367percent of the voting interest are present in person or by
368proxy:
369
370If a timeshare owner fails to make timely payments of
371timeshare plan common expenses, ad valorem taxes, or
372special assessments, an assessment lien against the
373timeshare owner's timeshare interest may be foreclosed
374in accordance with a judicial foreclosure procedure or
375a trustee foreclosure procedure, either of which may
376result in the loss of the timeshare owner's timeshare
377interest. If the managing entity initiates a trustee
378foreclosure procedure, the timeshare owner shall have
379the option to object pursuant to Florida law, and in
380such event the managing entity may thereafter proceed
381only by filing a judicial foreclosure action.
382
383     2.  The managing entity shall inform owners of timeshare
384interests in the timeshare plan in writing that the managing
385entity has the right to elect to use the trustee foreclosure
386procedure with respect to foreclosure of assessment liens as
387established in this section. The managing entity shall be deemed
388to have complied with the requirements of this subparagraph if
389the owners of timeshare interests in the given timeshare plan
390are informed by mail sent to each owner's notice address, in the
391notice of an annual or special meeting of the owners, by posting
392on the website of the applicable timeshare plan, or by any owner
393communication used by the managing entity.
394     (b)  Before initiating the trustee foreclosure procedure
395against any timeshare interest, a claim of lien against the
396timeshare interest shall be recorded under s. 721.16 or, if
397applicable, s. 718.116 or s. 719.108, and the notice of the
398intent to file a lien shall be given under s. 718.121 for
399timeshare condominiums and s. 719.108 for timeshare
400cooperatives.
401     (c)1.  In order to initiate a trustee foreclosure procedure
402against a timeshare interest, the lienholder shall deliver an
403affidavit to the trustee that identifies the obligor; the notice
404address of the obligor; the timeshare interest; the date that
405the notice of the intent to file a lien was given, if
406applicable; the official records book and page number where the
407claim of lien is recorded; and the name and notice address of
408any junior interestholder. The affidavit shall be accompanied by
409a title search of the timeshare interest identifying any junior
410interestholders of record, and the effective date of the title
411search must be a date that is within 60 calendar days before the
412date of the affidavit.
413     2.  The affidavit shall also state the facts that establish
414that the obligor has defaulted in the obligation to make a
415payment under a specified provision of the timeshare instrument
416or applicable law.
417     3.  The affidavit shall also specify the amounts secured by
418the lien as of the date of the affidavit and a per diem amount
419to account for further accrual of the amounts secured by the
420lien.
421     4.  The affidavit shall also state that the assessment lien
422was properly created and authorized pursuant to the timeshare
423instrument and applicable law.
424     (3)  OBLIGOR'S RIGHTS.-
425     (a)  The obligor may object to the lienholder's use of the
426trustee foreclosure procedure for a specific default any time
427before the sale of the timeshare interest under subsection (7)
428by delivering a written objection to the trustee using the
429objection form provided for in subsection (5). If the trustee
430receives the written objection from the obligor, the trustee may
431not proceed with the trustee foreclosure procedure as to the
432default specified in the notice of default and intent to
433foreclose under subsection (5), and the lienholder may proceed
434thereafter only with a judicial foreclosure action as to that
435specified default.
436     (b)  At any time before the trustee issues the certificate
437of sale under paragraph (7)(f), the obligor may cure the default
438and redeem the timeshare interest by paying the amounts secured
439by the lien in cash or certified funds to the trustee. After the
440trustee issues the certificate of sale, there is no right of
441redemption.
442     (4)  CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A
443trustee may sell an encumbered timeshare interest foreclosed
444under this section if:
445     (a)  The trustee has received the affidavit from the
446lienholder under paragraph (2)(c);
447     (b)  The trustee has not received a written objection to
448the use of the trustee foreclosure procedure under paragraph
449(3)(a) and the timeshare interest was not redeemed under
450paragraph (3)(b);
451     (c)  There is no lis pendens recorded and pending against
452the same timeshare interest and the trustee has not been served
453notice of the filing of any action to enjoin the trustee
454foreclosure sale;
455     (d)  The trustee has provided written notice of default and
456intent to foreclose as required under subsection (5) and a
457period of at least 30 calendar days has elapsed after such
458notice is deemed perfected under subsection (5); and
459     (e)  The notice of sale required under subsection (6) has
460been recorded in the official records of the county or counties
461in which the timeshare interest is located.
462     (5)  NOTICE OF DEFAULT AND INTENT TO FORECLOSE.-
463     (a)  In any foreclosure proceeding under this section, the
464trustee is required to notify the obligor of the proceeding by
465sending the obligor a written notice of default and intent to
466foreclose to the notice address of the obligor by certified
467mail, registered mail, or permitted delivery service, return
468receipt requested, and by first-class mail or permitted delivery
469service, postage prepaid, as follows:
470     1.  The notice of default and intent to foreclose shall
471identify the obligor, the notice address of the obligor, the
472legal description of the timeshare interest, the nature of the
473default, the amounts secured by the lien, and a per diem amount
474to account for further accrual of the amounts secured by the
475lien and shall state the method by which the obligor may cure
476the default, including the period of time after the date of the
477notice of default and intent to foreclose within which the
478obligor may cure the default.
479     2.  The notice of default and intent to foreclose shall
480include an objection form with which the obligor can object to
481the use of the trustee foreclosure procedure by signing and
482returning the objection form to the trustee. The objection form
483shall identify the obligor, the notice address of the obligor,
484the timeshare interest, and the return address of the trustee
485and shall state: "The undersigned obligor exercises the
486obligor's right to object to the use of the trustee foreclosure
487procedure contained in section 721.855, Florida Statutes."
488     3.  The notice of default and intent to foreclose shall
489also contain a statement in substantially the following form:
490
491If you fail to cure the default as set forth in this
492notice or take other appropriate action with regard to
493this foreclosure matter, you risk losing ownership of
494your timeshare interest through the trustee
495foreclosure procedure established in section 721.855,
496Florida Statutes. You may choose to sign and send to
497the trustee the enclosed objection form, exercising
498your right to object to the use of the trustee
499foreclosure procedure. Upon the trustee's receipt of
500your signed objection form, the foreclosure of the
501lien with respect to the default specified in this
502notice shall be subject to the judicial foreclosure
503procedure only. You have the right to cure your
504default in the manner set forth in this notice at any
505time before the trustee's sale of your timeshare
506interest. If you do not object to the use of the
507trustee foreclosure procedure, you will not be subject
508to a deficiency judgment even if the proceeds from the
509sale of your timeshare interest are insufficient to
510offset the amounts secured by the lien.
511
512     4.  The trustee shall also mail a copy of the notice of
513default and intent to foreclose, without the objection form, to
514the notice address of any junior interestholder by certified
515mail, registered mail, or permitted delivery service, return
516receipt requested, and by first-class mail or permitted delivery
517service, postage prepaid.
518     5.  Notice under this paragraph is considered perfected
519upon the trustee receiving the return receipt bearing the
520signature of the obligor or junior interestholder, as
521applicable, within 30 calendar days after the trustee sent the
522notice under this paragraph. Notice under this paragraph is not
523perfected if the notice is returned as undeliverable within 30
524calendar days after the trustee sent the notice, if the trustee
525cannot ascertain from the receipt that the obligor or junior
526interestholder, as applicable, is the person who signed the
527receipt, or if the receipt from the obligor or junior
528interestholder, as applicable, is returned or refused within 30
529calendar days after the trustee sent the notice.
530     (b)  If the notice required by paragraph (a) is returned as
531undeliverable within 30 calendar days after the trustee sent the
532notice, the trustee shall perform a diligent search and inquiry
533to obtain a different address for the obligor or junior
534interestholder. For purposes of this paragraph, any address
535known and used by the lienholder for sending regular mailings or
536other communications from the lienholder to the obligor or
537junior interestholder, as applicable, shall be included with
538other addresses produced from the diligent search and inquiry,
539if any.
540     1.  If the trustee's diligent search and inquiry produces
541an address different from the notice address, the trustee shall
542mail a copy of the notice by certified mail, registered mail, or
543permitted delivery service, return receipt requested, and by
544first-class mail or permitted delivery service, postage prepaid,
545to the new address. Notice under this subparagraph is considered
546perfected upon the trustee receiving the return receipt bearing
547the signature of the obligor or junior interestholder, as
548applicable, within 30 calendar days after the trustee sent the
549notice under this subparagraph. Notice under this subparagraph
550is not perfected if the trustee cannot ascertain from the
551receipt that the obligor or junior interestholder, as
552applicable, is the person who signed the receipt or the receipt
553from the obligor or junior interestholder, as applicable, is
554returned refused. If the trustee does not perfect notice under
555this subparagraph, the trustee shall perfect service in the
556manner set forth in paragraph (c).
557     2.  If the trustee's diligent search and inquiry does not
558locate a different address for the obligor or junior
559interestholder, as applicable, the trustee may perfect notice
560against that person under paragraph (c).
561     (c)  If the notice is not perfected under subparagraph
562(a)5., and such notice was not returned as undeliverable, or if
563the notice was not perfected under subparagraph (b)1., the
564trustee may perfect notice by publication in a newspaper of
565general circulation in the county or counties in which the
566timeshare interest is located. The notice shall appear at least
567once a week for 2 consecutive weeks. The trustee may group an
568unlimited number of notices in the same publication, if all of
569the notices pertain to the same timeshare plan. Notice under
570this paragraph is considered perfected upon publication as
571required in this paragraph.
572     (d)  If notice is perfected under subparagraph (a)5., the
573trustee shall execute an affidavit in recordable form setting
574forth the manner in which notice was perfected and attach the
575affidavit to the certificate of compliance set forth in
576subsection (9). The affidavit shall state the nature of the
577notice, the date on which the notice was mailed, the name and
578address on the envelope containing the notice, the manner in
579which the notice was mailed, and the basis for that knowledge.
580     (e)  If notice is perfected under subparagraph (b)1., the
581trustee shall execute an affidavit in recordable form setting
582forth the manner in which notice was perfected and attach the
583affidavit to the certificate of compliance set forth in
584subsection (9). The affidavit shall state the nature of the
585notice, the dates on which the notice was mailed, the name and
586addresses on the envelopes containing the notice, the manner in
587which the notices were mailed, the fact that a signed receipt
588from the certified mail, registered mail, or permitted delivery
589service was timely received, and the name and address on the
590envelopes containing the notice.
591     (f)  If notice is perfected by publication under paragraph
592(c), the trustee shall execute an affidavit in recordable form
593setting forth the manner in which notice was perfected and
594attach the affidavit to the certificate of compliance set forth
595in subsection (9). The affidavit shall include all the
596information contained in either paragraph (d) or paragraph (e),
597as applicable, shall state that the notice was perfected by
598publication after diligent search and inquiry was made for the
599current address for the person, and shall include a statement
600that notice was perfected by publication, and shall set forth
601the information required by s. 49.041 in the case of a natural
602person or s. 49.051 in the case of a corporation, whichever is
603applicable. No other action of the trustee is necessary to
604perfect notice.
605     (6)  NOTICE OF SALE.-
606     (a)  The notice of sale shall set forth:
607     1.  The name and notice addresses of the obligor and any
608junior interestholder.
609     2.  The legal description of the timeshare interest.
610     3.  The name and address of the trustee.
611     4.  A description of the default that is the basis for the
612foreclosure.
613     5.  The official records book and page numbers where the
614claim of lien is recorded.
615     6.  The amounts secured by the lien and a per diem amount
616to account for further accrual of the amounts secured by the
617lien.
618     7.  The date, location, and starting time of the trustee's
619sale.
620     8.  The right of and the method by which the obligor may
621cure the default or the right of any junior interestholder to
622redeem its interest up to the date the trustee issues the
623certificate of sale in accordance with paragraph (7)(f).
624     (b)  The trustee shall send a copy of the notice of sale
625within 3 business days after the date it is submitted for
626recording, by first-class mail or permitted delivery service,
627postage prepaid, to the notice addresses of the obligor and any
628junior interestholder.
629     (c)  After the date of recording of the notice of sale,
630notice is not required to be given to any person claiming an
631interest in the timeshare interest except as provided in this
632section. The recording of the notice of sale has the same force
633and effect as the filing of a lis pendens in a judicial
634proceeding under s. 48.23.
635     (d)1.  The trustee shall publish the notice of sale in a
636newspaper of general circulation in the county or counties in
637which the timeshare interest is located at least once a week for
6382 consecutive weeks before the date of the sale. The last
639publication shall occur at least 5 calendar days before the
640sale.
641     2.  The trustee may group an unlimited number of notices of
642sale in the same publication, if all of the notices of sale
643pertain to the same timeshare plan.
644     (7)  MANNER OF SALE.-
645     (a)  The sale of a timeshare interest by the trustee in a
646public auction shall be held in the county in which the
647timeshare interest is located, on the date, location, and
648starting time designated in the notice of sale, which shall be
649after 9:00 a.m. but before 4:00 p.m. on a business day not less
650than 30 calendar days after the recording of the notice of sale.
651The trustee's sale may occur online at a specific website on the
652Internet or in any other manner used by the clerk of the court
653for a judicial foreclosure sales procedure in the county or
654counties in which the timeshare interest is located.
655     (b)  The trustee shall conduct the sale and act as the
656auctioneer.
657     (c)  The lienholder and any person other than the trustee
658may bid at the sale. In lieu of participating in the sale, the
659lienholder may send the trustee written bidding instructions
660that the trustee shall announce as appropriate during the sale.
661     (d)  The trustee may postpone the sale from time to time.
662In such case, notice of postponement must be given by the
663trustee at the date, time, and location contained in the notice
664of sale. The notice of sale for the postponed sale shall be
665mailed under paragraph (6)(b), recorded under paragraph (4)(e),
666and published under paragraph (6)(d). The effective date of the
667initial notice of sale under paragraph (6)(b) is not affected by
668a postponed sale.
669     (e)  The highest bidder of the timeshare interest shall pay
670the price bid to the trustee in cash or certified funds on the
671day of the sale. If the lienholder is the highest bidder, the
672lienholder shall receive a credit up to the amount set forth in
673the notice of sale as required under subparagraph (6)(a)6.
674     (f)  On the date of the sale and upon receipt of the cash
675or certified funds due from the highest bidder, the trustee
676shall issue to the highest bidder a certificate of sale stating
677that a foreclosure conforming to the requirements of this
678section has occurred, including the time, location, and date of
679the sale, that the timeshare interest was sold, the amounts
680secured by the lien, and the amount of the highest bid. A copy
681of the certificate of sale shall be mailed by certified mail,
682registered mail, or permitted delivery service, return receipt
683requested, to all persons entitled to receive a notice of sale
684under subsection (6).
685     (g)  Before a sale conducted under this subsection, a
686junior interestholder may pursue adjudication by court, by
687interpleader, or in any other authorized manner respecting any
688matter that is disputed by the junior interestholder.
689     (8)  EFFECT OF TRUSTEE'S SALE.-
690     (a)  A sale conducted under subsection (7) forecloses and
691terminates all interests of any person with notice to whom
692notice is given under paragraph (4)(d) and paragraph (6)(b), and
693of any other person claiming interests by, through, or under any
694such person, in the affected timeshare interest. A failure to
695give notice to any person entitled to notice does not affect the
696validity of the sale as to the interests of any person properly
697notified. A person entitled to notice but not given notice has
698the rights of a person not made a defendant in a judicial
699foreclosure.
700     (b)  On the issuance of a certificate of sale under
701paragraph (7)(f), all rights of redemption that have been
702foreclosed under this section shall terminate.
703     (c)  A sale conducted under subsection (7) releases the
704obligor's liability for all amounts secured by the lien. The
705lienholder has no right to any deficiency judgment against the
706obligor after a sale of the obligor's timeshare interest under
707this section.
708     (d)  The issuance and recording of the trustee's deed is
709presumed valid and may be relied upon by third parties without
710actual knowledge of irregularities in the foreclosure
711proceedings. If for any reason there is an irregularity in the
712foreclosure proceedings, a purchaser becomes subrogated to all
713the rights of the lienholder to the indebtedness that it secured
714to the extent necessary to reforeclose the assessment lien in
715order to correct the irregularity and becomes entitled to an
716action de novo for the foreclosure of such assessment lien. Any
717subsequent reforeclosure required to correct an irregularity may
718be conducted under this section.
719     (9)  TRUSTEE'S CERTIFICATE OF COMPLIANCE.-
720     (a)  Within 10 calendar days after the trustee conducts a
721sale, the trustee shall execute and acknowledge a certificate of
722compliance that:
723     1.  Confirms delivery of the notice of default and intent
724to foreclose and attaches the affidavit required under
725subsection (5).
726     2.  States that the default was not cured, that the trustee
727did not receive any written objection under paragraph (3)(a),
728and that the timeshare interest was not redeemed under paragraph
729(3)(b).
730     3.  Confirms that the notice of sale was published as
731required under paragraph (6)(d) and attaches an affidavit of
732publication for the notice of sale.
733     4.  Confirms that the notice of sale was mailed under
734paragraph (6)(b) together with a list of the parties to whom the
735notice of sale was mailed.
736     (b)  In furtherance of the execution of the certificate of
737compliance required under this subsection, the trustee is
738entitled to rely upon an affidavit or certification from the
739lienholder as to the facts and circumstances of default and
740failure to cure the default.
741     (10)  TRUSTEE'S DEED.-
742     (a)  The trustee's deed shall include the name and address
743of the trustee, the name and address of the highest bidder, the
744name of the former owner, a legal description of the timeshare
745interest, and the name and address of the preparer of the
746trustee's deed. The trustee's deed shall contain no warranties
747of title from the trustee. The certificate of compliance shall
748be attached as an exhibit to the trustee's deed.
749     (b)  Ten calendar days after a sale, absent the prior
750filing and service on the trustee of a judicial action to enjoin
751issuance of the trustee's deed to the timeshare interest, the
752trustee shall:
753     1.  Issue a trustee's deed to the highest bidder.
754     2.  Record the trustee's deed in the official records of
755the county or counties in which the timeshare interest is
756located.
757     (c)1.  The certificate of compliance and trustee's deed
758together are presumptive evidence of the truth of the matters
759set forth in them, and an action to set aside the sale and void
760the trustee's deed may not be filed or otherwise pursued against
761any person acquiring the timeshare interest for value.
762     2.  The trustee's deed conveys to the highest bidder all
763rights, title, and interest in the timeshare interest that the
764former owner had, or had the power to convey, at the time of the
765recording of the claim of lien, together with all rights, title,
766and interest that the former owner or his or her successors in
767interest acquired after the recording of the claim of lien.
768     3.  The issuance and recording of a trustee's deed shall
769have the same force and effect as the issuance and recording of
770a certificate of title by the clerk of the court in a judicial
771foreclosure action.
772     (11)  DISPOSITION OF PROCEEDS OF SALE.-
773     (a)  The trustee shall apply the proceeds of the sale as
774follows:
775     1.  To the expenses of the sale, including compensation of
776the trustee.
777     2.  To the amount owed and set forth in the notice as
778required in subparagraph (6)(a)6.
779     3.  If there are junior interestholders, the trustee may
780file an action in interpleader, pay the surplus to a court of
781competent jurisdiction, name the competing junior
782interestholders, and ask the court to determine the proper
783distribution of the surplus. In any interpleader action, the
784trustee shall recover reasonable attorney's fees and costs.
785     4.  If there are no junior interestholders, or if all
786junior interestholders have been paid, any surplus shall be paid
787to the former owner. If the trustee is unable to locate the
788former owner within 1 year after the sale, the surplus, if any,
789shall be deposited with the Chief Financial Officer under
790chapter 717.
791     (b)  In disposing of the proceeds of the sale, the trustee
792may rely on the information provided in the affidavit of the
793lienholder under paragraph (2)(c) and, in the event of a dispute
794or uncertainty over such claims, the trustee has the discretion
795to submit the matter to adjudication by court, by interpleader,
796or in any other authorized manner and shall recover reasonable
797attorney's fees and costs.
798     (12)  TRUSTEE FORECLOSURE ACTIONS.-The trustee foreclosure
799procedure established in this section does not impair or
800otherwise affect the lienholder's continuing right to bring a
801judicial foreclosure action, in lieu of using the trustee
802foreclosure procedure, with respect to any assessment lien.
803     (13)  APPLICATION.-This section applies to any default
804giving rise to the imposition of an assessment lien which occurs
805after the effective date of this section.
806     (14)  ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
807PROCEDURE.-
808     (a)  An action for actual damages for a material violation
809of this section may be brought by an obligor against the
810lienholder for the failure to follow the trustee foreclosure
811procedure contained in this section.
812     (b)  Any trustee who intentionally violates the provisions
813of this section concerning the trustee foreclosure procedure
814commits a felony of the third degree, punishable as provided in
815s. 775.082, s. 775.083, or s. 775.084.
816     Section 10.  Section 721.856, Florida Statutes, is created
817to read:
818     721.856  Procedure for the trustee foreclosure of mortgage
819liens.-The provisions of this section establish a trustee
820foreclosure procedure for mortgage liens.
821     (1)  APPOINTMENT OF TRUSTEE.-
822     (a)  A trustee or a substitute trustee may be appointed by
823a lienholder at any time by recording a notice of appointment of
824trustee or notice of substitution of trustee in the official
825records of the county or counties in which the timeshare
826interest is located. A lienholder may appoint multiple trustees
827in a single appointment, and any appointed trustee may be used
828by the lienholder regarding the trustee foreclosure of any
829mortgage lien.
830     (b)  A trustee shall use good faith, skill, care, and
831diligence in discharging all of the trustee duties under this
832section and shall deal honestly and fairly with all parties.
833     (c)  The recorded notice of appointment of trustee or
834notice of substitution of trustee shall contain the name and
835address of the trustee or substitute trustee, the name and
836address of the lienholder, and the name and address of the
837timeshare plan.
838     (2)  INITIATING THE TRUSTEE FORECLOSURE OF MORTGAGE LIENS.-
839     (a)  Before initiating the trustee foreclosure against a
840timeshare interest, the mortgage, or an amendment to a mortgage
841executed by the obligor before the effective date of this
842section, must contain a statement in substantially the following
843form:
844
845If the mortgagor fails to make timely payments under
846the obligation secured by this mortgage, or is
847otherwise deemed in uncured default of this mortgage,
848the lien against the mortgagor's timeshare interest
849created by this mortgage may be foreclosed in
850accordance with either a judicial foreclosure
851procedure or a trustee foreclosure procedure and may
852result in the loss of your timeshare interest. If the
853mortgagee initiates a trustee foreclosure procedure,
854the mortgagor shall have the option to object and the
855mortgagee may proceed only by filing a judicial
856foreclosure action.
857
858     (b)1.  In order to initiate a trustee foreclosure procedure
859against a timeshare interest, the lienholder shall deliver an
860affidavit to the trustee that identifies the obligor, the notice
861address of the obligor, the timeshare interest, the official
862records book and page number where the mortgage is recorded, and
863the name and notice address of any junior interestholder. The
864affidavit shall be accompanied by a title search of the
865timeshare interest identifying any junior interestholders of
866record, and the effective date of the title search must be a
867date that is within 60 calendar days before the date of the
868affidavit.
869     2.  The affidavit shall also state the facts that establish
870that the obligor has defaulted in the obligation to make a
871payment under a specified provision of the mortgage or is
872otherwise deemed in uncured default under a specified provision
873of the mortgage.
874     3.  The affidavit shall also specify the amounts secured by
875the lien as of the date of the affidavit and a per diem amount
876to account for further accrual of the amounts secured by the
877lien.
878     4.  The affidavit shall also state that the appropriate
879amount of documentary stamp tax and intangible taxes has been
880paid upon recording of the mortgage, or otherwise paid to the
881state.
882     5.  The affidavit shall also state that the lienholder is
883the holder of the note and has complied with all preconditions
884in the note and mortgage to determine the amounts secured by the
885lien and to initiate the use of the trustee foreclosure
886procedure.
887     (3)  OBLIGOR'S RIGHTS.-
888     (a)  The obligor may object to the lienholder's use of the
889trustee foreclosure procedure for a specific default any time
890before the sale of the timeshare interest under subsection (7)
891by delivering a written objection to the trustee using the
892objection form provided for in subsection (5). If the trustee
893receives the written objection from the obligor, the trustee may
894not proceed with the trustee foreclosure procedure as to the
895default specified in the notice of default and intent to
896foreclose under subsection (5), and the lienholder may proceed
897thereafter only with a judicial foreclosure action as to that
898specified default.
899     (b)  At any time before the trustee issues the certificate
900of sale under paragraph (7)(f), the obligor may cure the default
901and redeem the timeshare interest by paying the amounts secured
902by the lien in cash or certified funds to the trustee. After the
903trustee issues the certificate of sale, there is no right of
904redemption.
905     (4)  CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A
906trustee may sell an encumbered timeshare interest foreclosed
907under this section if:
908     (a)  The trustee has received the affidavit from the
909lienholder under paragraph (2)(b);
910     (b)  The trustee has not received a written objection to
911the use of the trustee foreclosure procedure under paragraph
912(3)(a) and the timeshare interest was not redeemed under
913paragraph (3)(b);
914     (c)  There is no lis pendens recorded and pending against
915the same timeshare interest, and the trustee has not been served
916notice of the filing of any action to enjoin the trustee
917foreclosure sale;
918     (d)  The trustee is in possession of the original
919promissory note executed by the mortgagor and secured by the
920mortgage lien;
921     (e)  The trustee has provided written notice of default and
922intent to foreclose as required under subsection (5) and a
923period of at least 30 calendar days has elapsed after such
924notice is deemed perfected under subsection (5); and
925     (f)  The notice of sale required under subsection (6) has
926been recorded in the official records of the county in which the
927mortgage was recorded.
928     (5)  NOTICE OF DEFAULT AND INTENT TO FORECLOSE.-
929     (a)  In any foreclosure proceeding under this section, the
930trustee is required to notify the obligor of the proceeding by
931sending the obligor a written notice of default and intent to
932foreclose to the notice address of the obligor by certified
933mail, registered mail, or permitted delivery service, return
934receipt requested, and by first-class mail or permitted delivery
935service, postage prepaid, as follows:
936     1.  The notice of default and intent to foreclose shall
937identify the obligor, the notice address of the obligor, the
938legal description of the timeshare interest, the nature of the
939default, the amounts secured by the lien, and a per diem amount
940to account for further accrual of the amounts secured by the
941lien and shall state the method by which the obligor may cure
942the default, including the period of time after the date of the
943notice of default and intent to foreclose within which the
944obligor may cure the default.
945     2.  The notice of default and intent to foreclose shall
946include an objection form with which the obligor can object to
947the use of the trustee foreclosure procedure by signing and
948returning the objection form to the trustee. The objection form
949shall identify the obligor, the notice address of the obligor,
950the timeshare interest, and the return address of the trustee
951and shall state: "The undersigned obligor exercises the
952obligor's right to object to the use of the trustee foreclosure
953procedure contained in section 721.856, Florida Statutes."
954     3.  The notice of default and intent to foreclose shall
955also contain a statement in substantially the following form:
956
957If you fail to cure the default as set forth in this
958notice or take other appropriate action with regard to
959this foreclosure matter, you risk losing ownership of
960your timeshare interest through the trustee
961foreclosure procedure established in section 721.856,
962Florida Statutes. You may choose to sign and send to
963the trustee the enclosed objection form, exercising
964your right to object to the use of the trustee
965foreclosure procedure. Upon the trustee's receipt of
966your signed objection form, the foreclosure of the
967lien with respect to the default specified in this
968notice shall be subject to the judicial foreclosure
969procedure only. You have the right to cure your
970default in the manner set forth in this notice at any
971time before the trustee's sale of your timeshare
972interest. If you do not object to the use of the
973trustee foreclosure procedure, you will not be subject
974to a deficiency judgment even if the proceeds from the
975sale of your timeshare interest are insufficient to
976offset the amounts secured by the lien.
977
978     4.  The trustee shall also mail a copy of the notice of
979default and intent to foreclose, without the objection form, to
980the notice address of any junior interestholder by certified
981mail, registered mail, or permitted delivery service, return
982receipt requested, and by first-class mail or permitted delivery
983service, postage prepaid.
984     5.  Notice under this paragraph is considered perfected
985upon the trustee receiving the return receipt bearing the
986signature of the obligor or junior interestholder, as
987applicable, within 30 calendar days after the trustee sent the
988notice under this paragraph. Notice under this paragraph is not
989perfected if the notice is returned as undeliverable within 30
990calendar days after the trustee sent the notice, if the trustee
991cannot ascertain from the receipt that the obligor or junior
992interestholder, as applicable, is the person who signed the
993receipt, or if the receipt from the obligor or junior
994interestholder, as applicable, is returned or refused within 30
995calendar days after the trustee sent the notice.
996     (b)  If the notice required by paragraph (a) is returned as
997undeliverable within 30 calendar days after the trustee sent the
998notice, the trustee shall perform a diligent search and inquiry
999to obtain a different address for the obligor or junior
1000interestholder. For purposes of this paragraph, any address
1001known and used by the lienholder for sending regular mailings or
1002other communications from the lienholder to the obligor or
1003junior interestholder, as applicable, shall be included with
1004other addresses produced from the diligent search and inquiry,
1005if any.
1006     1.  If the trustee's diligent search and inquiry produces
1007an address different from the notice address, the trustee shall
1008mail a copy of the notice by certified mail, registered mail, or
1009permitted delivery service, return receipt requested, and by
1010first-class mail or permitted delivery service, postage prepaid,
1011to the new address. Notice under this subparagraph is considered
1012perfected upon the trustee receiving the return receipt bearing
1013the signature of the obligor or junior interestholder, as
1014applicable, within 30 calendar days after the trustee sent the
1015notice under this subparagraph. Notice under this subparagraph
1016is not perfected if the trustee cannot ascertain from the
1017receipt that the obligor or junior interestholder, as
1018applicable, is the person who signed the receipt or the receipt
1019from the obligor or junior interestholder, as applicable, is
1020returned refused. If the trustee does not perfect notice under
1021this subparagraph, the trustee shall perfect service in the
1022manner set forth in paragraph (c).
1023     2.  If the trustee's diligent search and inquiry does not
1024locate a different address for the obligor or junior
1025interestholder, as applicable, the trustee may perfect notice
1026against that person under paragraph (c).
1027     (c)  If the notice is not perfected under subparagraph
1028(a)5., and such notice was not returned as undeliverable, or if
1029the notice was not perfected under subparagraph (b)1., the
1030trustee may perfect notice by publication in a newspaper of
1031general circulation in the county or counties in which the
1032timeshare interest is located. The notice shall appear at least
1033once a week for 2 consecutive weeks. The trustee may group an
1034unlimited number of notices in the same publication, if all of
1035the notices pertain to the same timeshare plan. Notice under
1036this paragraph is considered perfected upon publication as
1037required in this paragraph.
1038     (d)  If notice is perfected under subparagraph (a)5., the
1039trustee shall execute an affidavit in recordable form setting
1040forth the manner in which notice was perfected and attach the
1041affidavit to the certificate of compliance set forth in
1042subsection (9). The affidavit shall state the nature of the
1043notice, the date on which the notice was mailed, the name and
1044address on the envelope containing the notice, the manner in
1045which the notice was mailed, and the basis for that knowledge.
1046     (e)  If notice is perfected under subparagraph (b)1., the
1047trustee shall execute an affidavit in recordable form setting
1048forth the manner in which notice was perfected and attach the
1049affidavit to the certificate of compliance set forth in
1050subsection (9). The affidavit shall state the nature of the
1051notice, the dates on which the notice was mailed, the name and
1052addresses on the envelopes containing the notice, the manner in
1053which the notice was mailed, the fact that a signed receipt from
1054the certified mail, registered mail, or permitted delivery
1055service was timely received, and the name and address on the
1056envelopes containing the notice.
1057     (f)  If notice is perfected under paragraph (c), the
1058trustee shall execute an affidavit in recordable form setting
1059forth the manner in which notice was perfected and attach the
1060affidavit to the certificate of compliance set forth in
1061subsection (9). The affidavit shall include all the information
1062contained in either paragraph (d) or paragraph (e), as
1063applicable, shall state that the notice was perfected by
1064publication after diligent search and inquiry was made for the
1065current address for the person, shall include a statement that
1066notice was perfected by publication, and shall set forth the
1067information required by s. 49.041 in the case of a natural
1068person or s. 49.051 in the case of a corporation, whichever is
1069applicable. No other action of the trustee is necessary to
1070perfect notice.
1071     (6)  NOTICE OF SALE.-
1072     (a)  The notice of sale shall set forth:
1073     1.  The name and notice addresses of the obligor and any
1074junior interestholder.
1075     2.  The legal description of the timeshare interest.
1076     3.  The name and address of the trustee.
1077     4.  A description of the default that is the basis for the
1078foreclosure.
1079     5.  The official records book and page numbers where the
1080mortgage is recorded.
1081     6.  The amounts secured by the lien and a per diem amount
1082to account for further accrual of the amounts secured by the
1083lien.
1084     7.  The date, location, and starting time of the trustee's
1085sale.
1086     8.  The right of and the method by which the obligor may
1087cure the default or the right of any junior interestholder to
1088redeem its interest up to the date the trustee issues the
1089certificate of sale in accordance with paragraph (7)(f).
1090     (b)  The trustee shall send a copy of the notice of sale
1091within 3 business days after the date it is submitted for
1092recording, by first-class mail or permitted delivery service,
1093postage prepaid, to the notice addresses of the obligor and any
1094junior interestholder.
1095     (c)  After the date of recording of the notice of sale,
1096notice is not required to be given to any person claiming an
1097interest in the timeshare interest except as provided in this
1098section. The recording of the notice of sale has the same force
1099and effect as the filing of a lis pendens in a judicial
1100proceeding under s. 48.23.
1101     (d)1.  The trustee shall publish the notice of sale in a
1102newspaper of general circulation in the county or counties in
1103which the timeshare interest is located at least once a week for
11042 consecutive weeks before the date of the sale. The last
1105publication shall occur at least 5 calendar days before the
1106sale.
1107     2.  The trustee may group an unlimited number of notices of
1108sale in the same publication, if all of the notices of sale
1109pertain to the same timeshare plan.
1110     (7)  MANNER OF SALE.-
1111     (a)  The sale of a timeshare interest by the trustee in a
1112public auction shall be held in the county in which the
1113timeshare interest is located, on the date, location, and
1114starting time designated in the notice of sale, which shall be
1115after 9:00 a.m. but before 4:00 p.m. on a business day not less
1116than 30 calendar days after the recording of the notice of sale.
1117The trustee's sale may occur online at a specific website on the
1118Internet or in any other manner used by the clerk of the court
1119for a judicial foreclosure sales procedure in the county or
1120counties in which the timeshare interest is located.
1121     (b)  The trustee shall conduct the sale and act as the
1122auctioneer.
1123     (c)  The lienholder and any person other than the trustee
1124may bid at the sale. In lieu of participating in the sale, the
1125lienholder may send the trustee written bidding instructions
1126that the trustee shall announce as appropriate during the sale.
1127     (d)  The trustee may postpone the sale from time to time.
1128In such case, notice of postponement must be given by the
1129trustee at the date, time, and location contained in the notice
1130of sale. The notice of sale for the postponed sale shall be
1131mailed under paragraph (6)(b), recorded under paragraph (4)(f),
1132and published under paragraph (6)(d). The effective date of the
1133initial notice of sale under paragraph (6)(b) is not affected by
1134a postponed sale.
1135     (e)  The highest bidder of the timeshare interest shall pay
1136the price bid to the trustee in cash or certified funds on the
1137day of the sale. If the lienholder is the highest bidder, the
1138lienholder shall receive a credit up to the amount set forth in
1139the notice of sale as required under subparagraph (6)(a)6.
1140     (f)  On the date of the sale and upon receipt of the cash
1141or certified funds due from the highest bidder, the trustee
1142shall issue to the highest bidder a certificate of sale stating
1143that a foreclosure conforming to the requirements of this
1144section has occurred, including the time, location, and date of
1145the sale, that the timeshare interest was sold, the amounts
1146secured by the lien, and the amount of the highest bid. A copy
1147of the certificate of sale shall be mailed by certified mail,
1148registered mail, or permitted delivery service, return receipt
1149requested, to all persons entitled to receive a notice of sale
1150under subsection (6).
1151     (g)  Before a sale conducted pursuant to this subsection, a
1152junior interestholder may pursue adjudication by court, by
1153interpleader, or in any other authorized manner respecting any
1154matter that is disputed by the junior interestholder.
1155     (8)  EFFECT OF TRUSTEE'S SALE.-
1156     (a)  A sale conducted under subsection (7) forecloses and
1157terminates all interests of any person with notice to whom
1158notice is given under paragraph (4)(e) and paragraph (6)(b), and
1159of any other person claiming interests by, through, or under any
1160such person, in the affected timeshare interest. A failure to
1161give notice to any person entitled to notice does not affect the
1162validity of the sale as to the interests of any person properly
1163notified. A person entitled to notice but not given notice has
1164the rights of a person not made a defendant in a judicial
1165foreclosure.
1166     (b)  On the issuance of a certificate of sale under
1167paragraph (7)(f), all rights of redemption that have been
1168foreclosed under this section shall terminate.
1169     (c)  A sale conducted under subsection (7) releases the
1170obligor's liability for all amounts secured by the lien. The
1171lienholder has no right to any deficiency judgment against the
1172obligor after a sale of the obligor's timeshare interest under
1173this section.
1174     (d)  The issuance and recording of the trustee's deed is
1175presumed valid and may be relied upon by third parties without
1176actual knowledge of any irregularities in the foreclosure
1177proceedings. If for any reason there is an irregularity in the
1178foreclosure proceedings, a purchaser becomes subrogated to all
1179the rights of the lienholder to the indebtedness that it secured
1180to the extent necessary to reforeclose the mortgage lien in
1181order to correct the irregularity and becomes entitled to an
1182action de novo for the foreclosure of such mortgage lien. Any
1183subsequent reforeclosure required to correct an irregularity may
1184be conducted under this section.
1185     (9)  TRUSTEE'S CERTIFICATE OF COMPLIANCE.-
1186     (a)  Within 10 calendar days after the trustee conducts a
1187sale, the trustee shall execute and acknowledge a certificate of
1188compliance which:
1189     1.  Confirms delivery of the notice of default and intent
1190to foreclose and attaches the affidavit required under
1191subsection (5).
1192     2.  States that the default was not cured, that the trustee
1193did not receive any written objection under paragraph (3)(a),
1194and that the timeshare interest was not redeemed under paragraph
1195(3)(b).
1196     3.  States that the trustee is in possession of the
1197original promissory note executed by the mortgagor and secured
1198by the mortgage lien.
1199     4.  Confirms that the notice of sale was published as
1200required under paragraph (6)(d) and attaches an affidavit of
1201publication for the notice of sale.
1202     5.  Confirms that the notice of sale was mailed under
1203paragraph (6)(b) together with a list of the parties to whom the
1204notice of sale was mailed.
1205     (b)  In furtherance of the execution of the certificate of
1206compliance required under this subsection, the trustee is
1207entitled to rely upon an affidavit or certification from the
1208lienholder as to the facts and circumstances of default and
1209failure to cure the default.
1210     (10)  TRUSTEE'S DEED.-
1211     (a)  The trustee's deed shall include the name and address
1212of the trustee, the name and address of the highest bidder, the
1213name of the former owner, a legal description of the timeshare
1214interest, and the name and address of the preparer of the
1215trustee's deed. The trustee's deed shall contain no warranties
1216of title from the trustee. The certificate of compliance shall
1217be attached as an exhibit to the trustee's deed.
1218     (b)  Ten calendar days after a sale, absent the prior
1219filing and service on the trustee of a judicial action to enjoin
1220issuance of the trustee's deed to the timeshare interest, the
1221trustee shall:
1222     1.  Cancel the original promissory note executed by the
1223mortgagor and secured by the mortgage lien.
1224     2.  Issue a trustee's deed to the highest bidder.
1225     3.  Record the trustee's deed in the official records of
1226the county or counties in which the timeshare interest is
1227located.
1228     (c)1.  The certificate of compliance and trustee's deed
1229together are presumptive evidence of the truth of the matters
1230set forth in them, and an action to set aside the sale and void
1231the trustee's deed may not be filed or otherwise pursued against
1232any person acquiring the timeshare interest for value.
1233     2.  The trustee's deed conveys to the highest bidder all
1234rights, title, and interest in the timeshare interest that the
1235former owner had, or had the power to convey, together with all
1236rights, title, and interest that the former owner or his or her
1237successors in interest acquired after the execution of the
1238mortgage.
1239     3.  The issuance and recording of a trustee's deed shall
1240have the same force and effect as the issuance and recording of
1241a certificate of title by the clerk of the court in a judicial
1242foreclosure action.
1243     (11)  DISPOSITION OF PROCEEDS OF SALE.-
1244     (a)  The trustee shall apply the proceeds of the sale as
1245follows:
1246     1.  To the expenses of the sale, including compensation of
1247the trustee.
1248     2.  To the amount owed and set forth in the notice as
1249required under subparagraph (6)(a)6.
1250     3.  If there are junior interestholders, the trustee may
1251file an action in interpleader, pay the surplus to a court of
1252competent jurisdiction, name the competing junior
1253interestholders, and ask the court to determine the proper
1254distribution of the surplus. In any interpleader action, the
1255trustee shall recover reasonable attorney's fees and costs.
1256     4.  If there are no junior interestholders, or if all
1257junior interestholders have been paid, any surplus shall be paid
1258to the former owner. If the trustee is unable to locate the
1259former owner within 1 year after the sale, the surplus, if any,
1260shall be deposited with the Chief Financial Officer under
1261chapter 717.
1262     (b)  In disposing of the proceeds of the sale, the trustee
1263may rely on the information provided in the affidavit of the
1264lienholder under paragraph (2)(b) and, in the event of a dispute
1265or uncertainty over such claims, the trustee has the discretion
1266to submit the matter to adjudication by court, by interpleader,
1267or in any other authorized manner and shall recover reasonable
1268attorney's fees and costs.
1269     (12)  JUDICIAL FORECLOSURE ACTIONS.-The trustee foreclosure
1270procedure established in this section does not impair or
1271otherwise affect the lienholder's continuing right to bring a
1272judicial foreclosure action, in lieu of using the trustee
1273foreclosure procedure, with respect to any mortgage lien.
1274     (13)  ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
1275PROCEDURE.-
1276     (a)  An action for actual damages for a material violation
1277of this section may be brought by an obligor against the
1278lienholder for the failure to follow the trustee foreclosure
1279procedure contained in this section.
1280     (b)  Any trustee who intentionally violates the provisions
1281of this section concerning the trustee foreclosure procedure
1282commits a felony of the third degree, punishable as provided in
1283s. 775.082, s. 775.083, or s. 775.084.
1284     Section 11.  Subsections (1) and (4) of section 721.86,
1285Florida Statutes, are amended to read:
1286     721.86  Miscellaneous provisions.-
1287     (1)  In the event of a conflict between the provisions of
1288this part and the other provisions of this chapter, chapter 702,
1289or other applicable law, the provisions of this part shall
1290prevail. The procedures in this part must be given effect in the
1291context of any foreclosure proceedings against timeshare
1292interests estates governed by this chapter, chapter 702, chapter
1293718, or chapter 719.
1294     (4)  In addition to assessment liens and mortgage liens
1295arising after the effective date of this part, except as
1296provided in s. 721.855(13), the provisions of this part apply to
1297all assessment liens and mortgage liens existing prior to the
1298effective date of this act regarding which a foreclosure
1299proceeding has not yet commenced.
1300     Section 12.  Subsection (2) of section 721.20, Florida
1301Statutes, is amended to read:
1302     721.20  Licensing requirements; suspension or revocation of
1303license; exceptions to applicability; collection of advance fees
1304for listings unlawful.-
1305     (2)  Solicitors who engage only in the solicitation of
1306prospective purchasers and any purchaser who refers no more than
130720 people to a developer or managing entity per year or who
1308otherwise provides testimonials on behalf of a developer or
1309managing entity are exempt from the provisions of chapter 475.
1310     Section 13.  An administrative fee of $50 per trustee deed
1311for each deed recorded pursuant to the trustee foreclosure
1312procedures set forth in ss. 721.855 and 721.856, Florida
1313Statutes, shall be paid and remitted at the same time and in the
1314same manner as documentary stamp taxes imposed pursuant to s.
1315201.02, Florida Statutes. Revenues from such fees shall be
1316remitted to the Department of Revenue in the same manner as
1317documentary stamp taxes and deposited in the State Courts
1318Revenue Trust Fund.
1319     Section 14.  This act shall take effect upon becoming a
1320law.


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