Florida Senate - 2010                                    SB 1820
       
       
       
       By Senator Bennett
       
       
       
       
       21-01514-10                                           20101820__
    1                        A bill to be entitled                      
    2         An act relating to mortgage foreclosures; amending s.
    3         95.281, F.S.; specifying a limited statute of
    4         limitations for certain deficiency judgments;
    5         requiring claims for deficiency connected with a
    6         foreclosure action to be filed within a time certain
    7         after a foreclosure sale; providing an exception for
    8         participation in the Florida Mortgage Foreclosure
    9         Diversion Program; providing exception criteria;
   10         creating s. 95.285, F.S.; establishing the Florida
   11         Mortgage Foreclosure Diversion Program; authorizing
   12         mortgagees to obtain an extension of the statute of
   13         limitations on mortgage deficiencies under certain
   14         circumstances; authorizing mortgagees to offer
   15         mortgagors opportunities to participate in the
   16         program; providing mortgagee and mortgagor program
   17         participation criteria, procedures, and requirements;
   18         specifying duties and limitations of mortgagors and
   19         mortgagees under the program; providing for continued
   20         participation in the program after certain deadlines;
   21         specifying participation in the program as consent to
   22         additional rights and privileges for mortgagees and
   23         voluntary waiver of rights by mortgagors; providing an
   24         effective date.
   25  
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Subsection (1) of section 95.281, Florida
   29  Statutes, is amended, subsection (5) is renumbered as subsection
   30  (6), and a new subsection (5) is added to that section, to read:
   31         95.281 Limitations; instruments encumbering real property.—
   32         (1) The lien of a mortgage or other instrument encumbering
   33  real property, herein called mortgage, except those specified in
   34  subsection (6) (5), shall terminate after the expiration of the
   35  following periods of time:
   36         (a) If the final maturity of an obligation secured by a
   37  mortgage is ascertainable from the record of it, 5 years after
   38  the date of maturity.
   39         (b) If the final maturity of an obligation secured by a
   40  mortgage is not ascertainable from the record of it, 20 years
   41  after the date of the mortgage, unless prior to such time the
   42  holder of the mortgage:
   43         1. Rerecords the mortgage and includes a copy of the
   44  obligation secured by the mortgage so that the final maturity is
   45  ascertainable; or
   46         2. Records a copy of the obligation secured by the mortgage
   47  from which copy the final maturity is ascertainable and by
   48  affidavit identifies the mortgage by its official recording data
   49  and certifies that the obligation is the obligation described in
   50  the mortgage;
   51  
   52  in which case the lien shall terminate 5 years after the date of
   53  maturity.
   54         (c) For all obligations, including taxes, paid by the
   55  mortgagee, 5 years from the date of payment. A mortgagee shall
   56  have no right of subrogation to the lien of the state for taxes
   57  paid by the mortgagee to protect the security of his or her
   58  mortgage unless he or she obtains an assignment from the state
   59  of the tax certificate. Redemption of the tax certificate shall
   60  be insufficient for subrogation.
   61         (5)(a) All claims for a deficiency in connection with a
   62  deficiency judgment entered on or after October 1, 2010, are
   63  subject to a 6-month statute of limitations beginning upon entry
   64  of the judgment and all claims for a deficiency in connection
   65  with a foreclosure action in accordance with chapter 702 must be
   66  filed within 6 months after the foreclosure sale date or such
   67  claims are void as a matter of law, subject to the exception
   68  provided in paragraph (b).
   69         (b) Any mortgagee who in good faith participates in the
   70  foreclosure diversion program under s. 95.285, shall have 5
   71  years from:
   72         1. The date of a foreclosure sale to pursue a deficiency
   73  judgment with respect to any deficiency arising out of a
   74  foreclosure action pursuant to chapter 702; or
   75         2. The date of a partial payoff of a mortgage loan to
   76  pursue a deficiency which arises in connection with and is
   77  incident to a short-sale payoff of such mortgage loan, and in
   78  connection with such short-sale payoff the mortgagee releases
   79  and satisfies its mortgage lien on the property.
   80         (6)(5) This section does not apply to mortgages or deeds of
   81  trust executed by any railroad or other public utility
   82  corporation or by any receiver or trustee of them or to liens or
   83  notices of liens under chapter 713.
   84         Section 2. Section 95.285, Florida Statutes, is created to
   85  read:
   86         95.285 Florida Mortgage Foreclosure Diversion Program.—
   87         (1) A mortgagee may obtain an extension of the statute of
   88  limitations on mortgage deficiencies by consenting to
   89  participate in the Florida Mortgage Foreclosure Diversion
   90  Program as provided in this section.
   91         (a) Prior to filing any action for foreclosure or in the
   92  case of a pending foreclosure action, at any time prior to the
   93  entry of the foreclosure judgment, the mortgagee may offer any
   94  mortgagor the opportunity to participate in the program.
   95         (b) Within 60 days after declaring a mortgage loan to be in
   96  default, the mortgagee shall initiate participation in the
   97  program by delivering to the mortgagor a written diversion offer
   98  to voluntarily participate in the program, together with
   99  information describing the terms of participation as follows:
  100         1. A statement that clearly describes the program in which
  101  the mortgagee shall identify and be bound to a preapproved
  102  short-sale price, as well as a specified partial mortgage loan
  103  payoff, which shall be binding upon the mortgagor for a period
  104  of 1 year after the date of entering the program, and that, in
  105  exchange for this commitment by the mortgagee, the mortgagor
  106  shall voluntarily extend the statute of limitations from 6
  107  months to 5 years and further agree to waive the right of
  108  discharge of a deficiency judgment, if any, in any bankruptcy
  109  proceeding voluntarily filed by the mortgagor within 24 months
  110  after the final judgment date or date of closing on a short
  111  sale.
  112         2. Provide the name, current telephone numbers, and e-mail
  113  and physical mailing addresses of such employees, agents, or
  114  delegates of the mortgagee possessing the authority to
  115  negotiate, authorize, and bind the mortgagor to the terms and
  116  requirements embodied in the program and to release and satisfy
  117  any mortgage lien.
  118         (c) If a mortgagee submits a diversion offer to a
  119  mortgagor, the mortgagor shall have 45 days after receiving the
  120  diversion offer to accept such offer in writing and, as a
  121  condition precedent to participation in the program, provide to
  122  the mortgagee the following:
  123         1. Documentation evidencing that the mortgagor has retained
  124  an attorney in this state to assist the mortgagor with
  125  completing the program documentation requirements.
  126         2. Documentation evidencing that the mortgagor has retained
  127  a real estate broker licensed in this state to assist the
  128  mortgagor with selling the property at the short-sale price,
  129  including, but not limited to, providing a copy of the listing
  130  agreement between the real estate broker and the mortgagor.
  131         3. A financial hardship affidavit, consisting of the
  132  mortgagor’s assets, owned individually or jointly or held for
  133  the benefit of the mortgagor, liabilities, income, and living
  134  expenses, and such affidavit shall be signed under penalty of
  135  perjury and acknowledged before a notary public.
  136         4. An estimated HUD-1 Settlement Statement, which sets
  137  forth the following:
  138         a. The sales price the mortgagor proposes to sell the
  139  property.
  140         b. Any outstanding monetary encumbrances or liens that are
  141  customarily reflected on the settlement statement, including,
  142  but not limited to, any condominium or homeowners’ association
  143  fees and assessments, code enforcement liens, construction
  144  liens, liens for outstanding real estate taxes or similar liens,
  145  and estoppel fees. Reliance in good faith by a settlement agent
  146  on the statements of a mortgagor shall not subject the
  147  settlement agent to liability.
  148         c. The amount that the mortgagor proposes as the payoff
  149  amount of any outstanding mortgage encumbering the property.
  150         5. A title commitment or opinion concerning title from an
  151  attorney licensed in this state that indicates all requirements
  152  to convey marketable title to a third party.
  153         6. Tax returns and financial statements, including, but not
  154  limited to, any statement concerning bank accounts of any nature
  155  or any account that contains securities or other similar
  156  investments, together with such additional financial
  157  documentation as the mortgagee may reasonably request.
  158         (d) The mortgagor shall update its financial information
  159  when reasonably requested by the mortgagee or when the mortgagor
  160  experiences a material change in circumstances. In no event
  161  shall the mortgagor be required to provide updated financial
  162  documentation more frequently than once every 30 days, except as
  163  authorized by this section.
  164         (2) Upon receipt of the mortgagor’s acceptance package, the
  165  mortgagee shall refrain from all collection or foreclosure
  166  activity for a suspension period consisting of a minimum of 1
  167  year after the date of acceptance or as otherwise agreed between
  168  the mortgagee and mortgagor.
  169         (3) Within 30 days after the mortgagor’s acceptance of the
  170  diversion offer, the mortgagee shall provide the mortgagor the
  171  amount of a preapproved price or short-sale price and the
  172  partial payoff amount of the mortgage payoff the mortgagee will
  173  accept to release and satisfy its mortgage or liens encumbering
  174  the property.
  175         (a) In no event shall the short-sale price be greater than
  176  the current appraised value of the property or the outstanding
  177  balance of the mortgage loan, whichever is less. The mortgagee
  178  shall have the option to update the short-sale price and the
  179  partial payoff amount the mortgagee is willing to accept based
  180  upon market conditions, not more frequently than once every 6
  181  months. The mortgagee shall promptly deliver to the mortgagor
  182  the good faith documentation that supports its proposed short
  183  sale price, including any updates to the short-sale price. Good
  184  faith documentation shall include, but not be limited to, a
  185  current appraisal by an appraiser licensed in this state who is
  186  located in the county in which the property is located.
  187         (b) The partial payoff amount shall be ratably reduced by
  188  any condominium or homeowners’ association fees and assessments
  189  and property taxes that accrue or are recalculated after the
  190  date of the diversion offer. However, in no event shall the
  191  mortgagee be required to consent to release any lien when the
  192  aggregate amount of condominium or homeowners’ association fees
  193  and assessments exceeds the amounts for which the mortgagee
  194  would be liable as set forth in s. 718.116 or s. 720.3085, as
  195  applicable.
  196         (4) Except in the case where aggregate condominium or
  197  homeowners’ association fees and assessments exceed the amounts
  198  authorized by chapter 718 or chapter 720, the mortgagee shall,
  199  within 15 days after receiving from the mortgagor a copy of any
  200  bona fide written contract setting forth a sales price equal to
  201  or in excess of the mortgagee’s approved short-sale price or,
  202  alternatively, a payoff amount to the mortgagee equal to or in
  203  excess of the partial payoff amount, deliver to the mortgagor a
  204  final payoff letter confirming the short payoff amount and
  205  setting forth the amount of a deficiency, if any, the mortgagee
  206  claims is still due and owed by the mortgagor. The failure of
  207  the mortgagee to provide the final payoff letter within the 15
  208  day period shall not prevent the mortgagor from proceeding with
  209  closing on and transferring the property and shall relieve the
  210  mortgagor of any obligation to the mortgagee for a deficiency
  211  judgment or any unpaid portion of the mortgage loan.
  212         (5) The mortgagor and mortgagee must consent in writing to
  213  the following as conditions to participation in the program:
  214         (a) The mortgagor agrees to maintain the property in good
  215  condition pending the short sale or foreclosure of the property
  216  and to commit no waste on the property.
  217         (b) The mortgagor agrees to waive any right to discharge a
  218  deficiency judgment or debt owed to the mortgagee in bankruptcy
  219  for a period of 24 months after date of the short-sale closing
  220  or foreclosure sale.
  221         (c) The mortgagor waives any rights concerning exemption
  222  from garnishment.
  223         (6) The mortgagee is under no obligation to provide a final
  224  payoff letter or release its mortgage lien for any offer that is
  225  less than its stated short-sale price or that results in a
  226  mortgage loan payoff amount less than partial payoff amount.
  227  Nothing in this section prevents a mortgagee from accepting less
  228  than its stated short-sale offer.
  229         (7) Upon mutual written consent of the mortgagee and the
  230  mortgagor, the parties may continue to participate in the
  231  program beyond the initial suspension period. For each
  232  additional suspension period of 1 year that the mortgagee and
  233  the mortgagor participate in the program, the statute of
  234  limitations for pursuing and collecting a deficiency shall be
  235  extended an additional year. The parties may participate in the
  236  program for such time as they both mutually agree, but in no
  237  event may the total statute of limitations exceed 7 years in the
  238  aggregate.
  239         (8) In consideration of the additional rights and
  240  privileges afforded to mortgagees and the voluntary waiver of
  241  rights by mortgagors participating in the program, participation
  242  in the program constitutes consent by both parties to the
  243  requirements and remedies set forth in this section.
  244         Section 3. This act shall take effect July 1, 2010.