Florida Senate - 2010 SB 2358
By Senator Gardiner
9-01592-10 20102358__
1 A bill to be entitled
2 An act relating to timeshares; amending s. 721.07,
3 F.S.; providing lien disclosure requirements for filed
4 public offering statements for certain timeshare
5 plans; amending s. 721.16, F.S.; authorizing a
6 managing entity to bring judicial and nonjudicial
7 actions to foreclose certain liens under specified
8 conditions; renaming part III of ch. 721, F.S.;
9 amending s. 721.81, F.S.; revising and providing
10 legislative purposes of the part; amending s. 721.82
11 F.S.; revising and providing definitions; amending s.
12 721.83, F.S.; revising application to apply to
13 judicial foreclosure actions; amending s. 721.85,
14 F.S.; conforming provisions to changes made by this
15 act; creating s. 721.855, F.S.; establishing procedure
16 for the nonjudicial foreclosure of assessment liens;
17 providing for the appointment of a trustee; providing
18 recording requirements for such liens; providing
19 procedures for the initiation of a nonjudicial
20 foreclosure procedure against a timeshare interest;
21 providing procedures for an obligor’s objection to the
22 nonjudicial foreclosure procedure; providing
23 conditions to a trustee’s exercise of power of sale;
24 providing requirements for a notice of default and
25 intent to sell; providing requirements for a notice of
26 sale; providing requirements for a trustee’s
27 certificate of compliance; providing requirements for
28 the sale by auction of foreclosed encumbered timeshare
29 interests; providing for the effect of a trustee’s
30 sale; providing requirements for a trustee’s deed;
31 providing for the disposition of proceeds of the sale;
32 providing that the nonjudicial foreclosure procedure
33 does not impair or otherwise affect the right to bring
34 certain actions; providing application; providing for
35 actions for failure to follow the nonjudicial
36 foreclosure procedure; creating s. 721.856, F.S.;
37 establishing procedure for the nonjudicial foreclosure
38 of mortgage liens; providing for the appointment of a
39 trustee; providing recording requirements for such
40 liens; providing procedures for the initiation of a
41 nonjudicial foreclosure procedure against a timeshare
42 interest; providing procedures for an obligor’s
43 objection to the nonjudicial foreclosure procedure;
44 providing conditions to a trustee’s exercise of power
45 of sale; providing requirements for a notice of
46 default and intent to sell; providing requirements for
47 a notice of sale; providing requirements for a
48 trustee’s certificate of compliance; providing
49 requirements for the sale by auction of foreclosed
50 encumbered timeshare interests; providing for the
51 effect of a trustee’s sale; providing requirements for
52 a trustee’s deed; providing for the disposition of
53 proceeds of the sale; providing that the nonjudicial
54 foreclosure procedure does not impair or otherwise
55 affect the right to bring certain actions; providing
56 for actions for failure to follow the nonjudicial
57 foreclosure procedure; amending s. 721.86, F.S.;
58 providing for priority of application in case of
59 conflict; providing an effective date.
60
61 Be It Enacted by the Legislature of the State of Florida:
62
63 Section 1. Paragraph (jj) is added to subsection (5) of
64 section 721.07, Florida Statutes, to read:
65 721.07 Public offering statement.—Prior to offering any
66 timeshare plan, the developer must submit a filed public
67 offering statement to the division for approval as prescribed by
68 s. 721.03, s. 721.55, or this section. Until the division
69 approves such filing, any contract regarding the sale of that
70 timeshare plan is subject to cancellation by the purchaser
71 pursuant to s. 721.10.
72 (5) Every filed public offering statement for a timeshare
73 plan which is not a multisite timeshare plan shall contain the
74 information required by this subsection. The division is
75 authorized to provide by rule the method by which a developer
76 must provide such information to the division.
77 (jj) The following statement in conspicuous type:
78
79 The managing entity has a lien against each timeshare
80 interest to secure the payment of regular or special
81 assessments and ad valorem taxes. Your failure to make
82 any required payments may result in the judicial or
83 nonjudicial foreclosure of an assessment lien and the
84 loss of your timeshare interest. If the managing
85 entity initiates a nonjudicial procedure, you shall
86 have the option to object to the use of the
87 nonjudicial foreclosure procedure and the managing
88 entity may only proceed by filing a judicial
89 foreclosure action.
90 Section 2. Subsection (2) of section 721.16, Florida
91 Statutes, is amended to read:
92 721.16 Liens for overdue assessments; liens for labor
93 performed on, or materials furnished to, a timeshare unit.—
94 (2) The managing entity may bring a judicial an action in
95 its name to foreclose a lien under subsection (1) in the manner
96 a mortgage of real property is foreclosed and may also bring an
97 action to recover a money judgment for the unpaid assessments
98 without waiving any claim of lien. As an alternative to
99 initiating a judicial action, the managing entity may initiate a
100 nonjudicial procedure to foreclose an assessment lien under s.
101 721.855.
102 Section 3. Part III of chapter 721, Florida Statutes,
103 entitled “Foreclosure of Liens on Timeshare Estates,” is renamed
104 “Foreclosure of Liens on Timeshare Interests.”
105 Section 4. Section 721.81, Florida Statutes, is amended to
106 read:
107 721.81 Legislative purpose.—The purposes of this part are
108 to:
109 (1) Recognize that timeshare interests estates are parcels
110 of real property used for vacation experience rather than for
111 homestead or investment purposes and that there are numerous
112 timeshare interests estates in this the state.
113 (2) Recognize that the economic health and efficient
114 operation of the vacation ownership industry are in part
115 dependent upon the availability of an efficient and economical
116 process for all timeshare interest foreclosures foreclosure.
117 (3) Recognize the need to assist both owners’ associations
118 and mortgagees by simplifying and expediting the process for the
119 judicial and nonjudicial of foreclosure of assessment liens and
120 mortgage liens against timeshare interests estates.
121 (4) Improve judicial economy and reduce court congestion
122 and the cost to taxpayers by establishing streamlined procedures
123 for the judicial and nonjudicial foreclosure of assessment liens
124 and mortgage liens against timeshare interests estates.
125 (5) Recognize that nearly all timeshare interest
126 foreclosures are uncontested.
127 (6) Protect the ability of consumers who own timeshare
128 interests located in this state to choose a judicial proceeding
129 for the foreclosure of an assessment lien or a mortgage lien
130 against their timeshare interest.
131 (7) Recognize that the use of the nonjudicial foreclosure
132 procedure established by ss. 721.855 and 721.856 shall have the
133 same force and effect as the use of the judicial foreclosure
134 procedure against a timeshare interest with respect to the
135 provisions of this chapter or any other applicable law. However,
136 obligors shall not be subject to a deficiency judgment even if
137 the proceeds from the sale of the timeshare interest are
138 insufficient to offset the amounts secured by the lien.
139 Section 5. Section 721.82, Florida Statutes, is amended to
140 read:
141 721.82 Definitions.—As used in this part, the term:
142 (1) “Amounts secured by the lien” means all amounts secured
143 by an assessment lien or mortgage lien, including, but not
144 limited to, all past due amounts, accrued interest, late fees,
145 taxes, advances for the payment of taxes, insurance and
146 maintenance of the timeshare interest, and any fees or costs
147 incurred by the lienholder or trustee, including any reasonable
148 attorney’s fees, trustee’s fees, and costs incurred in
149 connection with the default.
150 (2)(1) “Assessment lien” means:
151 (a) A lien for delinquent assessments as provided in ss.
152 721.16, 718.116, and 719.108, and 721.16 as to timeshare
153 condominiums; or
154 (b) A lien for unpaid taxes and special assessments as
155 provided in s. 192.037(8).
156 (3)(2) “Junior interestholder” means any person who has a
157 lien or interest of record against a timeshare interest estate
158 in the county or counties in which the timeshare interest estate
159 is located, which is inferior to the mortgage lien or assessment
160 lien being foreclosed under this part.
161 (4)(3) “Lienholder” means a holder of an assessment lien or
162 a holder of a mortgage lien, as applicable. A receiver appointed
163 under s. 721.26 is a lienholder for purposes of foreclosure of
164 assessment liens under this part.
165 (5)(4) “Mortgage” has the same meaning set forth in s.
166 697.01.
167 (6)(5) “Mortgage lien” means a security interest in a
168 timeshare interest estate created by a mortgage encumbering the
169 timeshare interest estate.
170 (7)(6) “Mortgagee” means a person holding a mortgage lien.
171 (8)(7) “Mortgagor” means a person granting a mortgage lien
172 or a person who has assumed the obligation secured by a mortgage
173 lien.
174 (9)(8) “Notice address” means:
175 (a) As to an assessment lien, the address of the current
176 owner of a timeshare interest estate as reflected by the books
177 and records of the timeshare plan under ss. 721.13(4) and
178 721.15(7).
179 (b) As to a mortgage lien:
180 1. The address of the mortgagor as set forth in the
181 mortgage, the promissory note or a separate document executed by
182 the mortgagor at the time the mortgage lien was created, or the
183 most current address of the mortgagor according to the records
184 of the mortgagee; and
185 2. If the current owner of the timeshare interest estate is
186 different from the mortgagor, the address of the current owner
187 of the timeshare interest estate as reflected by the books and
188 records of the mortgagee.
189 (c) As to a junior interestholder, the address as set forth
190 in the recorded instrument creating the junior lien interest or
191 interest lien, or in any recorded amendment supplement thereto
192 changing the address, or in any written notification by the
193 junior interestholder to the foreclosing lienholder changing the
194 of such change in address.
195 (10)(9) “Obligor” means the mortgagor, the person subject
196 to an assessment lien, or the record owner of the timeshare
197 interest estate.
198 (11) “Permitted delivery service” means any nationally
199 recognized common carrier delivery service or international
200 airmail service requiring a signed return receipt.
201 (12)(10) “Registered agent” means an agent duly appointed
202 by the obligor under s. 721.84 for the purpose of accepting all
203 notices and service of process under this part. A registered
204 agent may be an individual resident in this state whose business
205 office qualifies as a registered office, or a domestic or
206 foreign corporation or a not-for-profit corporation as defined
207 in chapter 617 authorized to transact business or to conduct its
208 affairs in this state, whose business office qualifies as a
209 registered office. A registered agent for any obligor may not be
210 the lienholder or the attorney for the lienholder.
211 (13)(11) “Registered office” means the street address of
212 the business office of the registered agent appointed under s.
213 721.84, located in this state.
214 (14) “Trustee” means an attorney who is a member in good
215 standing of The Florida Bar or his or her law firm, or a title
216 insurer authorized to transact business in this state under s.
217 624.401, appointed as trustee or as substitute trustee in
218 accordance with s. 721.855 or s. 721.856. A receiver appointed
219 under s. 721.26 may act as a trustee under s. 721.855. A trustee
220 must be independent as required by s. 721.05(20).
221 Section 6. Section 721.83, Florida Statutes, is amended to
222 read:
223 721.83 Consolidation of judicial foreclosure actions.—
224 (1) A complaint in a foreclosure proceeding involving
225 timeshare interests estates may join in the same action multiple
226 defendant obligors and junior interestholders of separate
227 timeshare interests estates, provided:
228 (a) The foreclosure proceeding involves a single timeshare
229 property.
230 (b) The foreclosure proceeding is filed by a single
231 plaintiff.
232 (c) The default and remedy provisions in the written
233 instruments on which the foreclosure proceeding is based are
234 substantially the same for each defendant.
235 (d) The nature of the defaults alleged is the same for each
236 defendant.
237 (e) No more than 15 timeshare interests estates, without
238 regard to the number of defendants, are joined within the same
239 consolidated foreclosure action.
240 (2) In any foreclosure proceeding involving multiple
241 defendants filed under subsection (1), the court shall sever for
242 separate trial any count of the complaint in which a defense or
243 counterclaim is timely raised by a defendant.
244 (3) A consolidated timeshare foreclosure action shall be
245 considered a single action, suit, or proceeding for the payment
246 of filing fees and service charges pursuant to general law. In
247 addition to the payment of such filing fees and service charges,
248 an additional filing fee of up to $10 for each timeshare
249 interest estate joined in that action shall be paid to the clerk
250 of court.
251 Section 7. Section 721.85, Florida Statutes, is amended to
252 read:
253 721.85 Service to notice address or on registered agent.—
254 (1) Service of process for a foreclosure proceeding
255 involving a timeshare interest estate may be made by any means
256 recognized by law. In addition, substituted service on an
257 obligor a party who has appointed a registered agent under s.
258 721.84 may be made on such registered agent at the registered
259 office. Also, when using s. 48.194 where in rem or quasi in rem
260 relief only is sought, such service of process provisions are
261 modified in connection with a foreclosure proceeding against a
262 timeshare interest estate to provide that:
263 (a) Such service of process may be made on any person
264 whether the person is located inside or outside this state, by
265 certified or registered mail, return receipt requested, or by a
266 permitted delivery service, return receipt requested, addressed
267 to the person to be served at the notice address, or on the
268 person’s party’s registered agent duly appointed under s.
269 721.84, at the registered office; and
270 (b) Service shall be considered obtained upon the signing
271 of the return receipt by any person at the notice address, or by
272 the registered agent.
273 (2) The current owner and the mortgagor of a timeshare
274 interest estate must promptly notify the owners’ association and
275 the mortgagee of any change of address.
276 (3) Substituted notice under s. 721.855 or s. 721.856 for
277 any party who has appointed a registered agent under s. 721.84
278 may be made on such registered agent at the registered office.
279 Section 8. Section 721.855, Florida Statutes, is created to
280 read:
281 721.855 Procedure for the nonjudicial foreclosure of
282 assessment liens.—The provisions of this section establish a
283 nonjudicial foreclosure procedure for assessment liens.
284 (1) APPOINTMENT OF TRUSTEE.—
285 (a) A trustee or a substitute trustee may be appointed by a
286 lienholder at any time by recording a notice of appointment of
287 trustee or notice of substitution of trustee in the public
288 records of the county or counties in which the timeshare
289 interest is located. A lienholder may appoint multiple trustees
290 in a single appointment, and any appointed trustee may be used
291 by the lienholder regarding the nonjudicial foreclosure of any
292 assessment lien under any timeshare plan for which the trustee
293 is appointed.
294 (b) The recorded notice of appointment of trustee or notice
295 of substitution of trustee shall contain the name and address of
296 the trustee or substitute trustee, the name and address of the
297 lienholder, and the name and address of the timeshare plan.
298 (c) The lienholder shall maintain a list of all trustees
299 and substitute trustees appointed by the lienholder and shall
300 provide an obligor with verification that a particular person is
301 an appointed trustee or substitute trustee within 3 business
302 days following receipt of a written request for such
303 verification from the obligor.
304 (2) INITIATING THE USE OF A NONJUDICIAL FORECLOSURE
305 PROCEDURE.—
306 (a) Before initiating the nonjudicial foreclosure procedure
307 against any timeshare interest in a given timeshare plan, the
308 managing entity shall inform owners of timeshare interests in
309 the timeshare plan in writing that the managing entity has the
310 right to elect to use the nonjudicial foreclosure procedure with
311 respect to foreclosure of assessment liens as established in
312 this section. The managing entity shall be deemed to have
313 complied with the requirements of this paragraph if the owners
314 of timeshare interests in the given timeshare plan are informed
315 by mail sent to each owner’s notice address, in the notice of an
316 annual or special meeting of the owners, by posting on the
317 website of the applicable timeshare plan, or by any owner
318 communication used by the managing entity.
319 (b) Before initiating the nonjudicial foreclosure procedure
320 against any timeshare interest, a claim of lien against the
321 timeshare interest shall be recorded pursuant to s. 721.16 or,
322 if applicable, s. 718.116 or s. 719.108, and the notice of the
323 intent to file a lien shall be given pursuant to s. 718.121 for
324 timeshare condominiums and s. 719.108 for timeshare
325 cooperatives.
326 (c)1. In order to initiate a nonjudicial foreclosure
327 procedure against a timeshare interest, the lienholder shall
328 deliver an affidavit to the trustee that identifies the obligor,
329 the notice address of the obligor, the timeshare interest, the
330 official records book and page number where the claim of lien is
331 recorded, and the name and notice address of any junior
332 interestholder. The affidavit shall be accompanied by a title
333 search of the timeshare interest identifying any junior
334 interestholders of record, and the title search must be
335 performed within 60 calendar days before the date of the
336 affidavit.
337 2. The affidavit shall also state that the obligor has
338 defaulted in the obligation to make a payment under a specified
339 provision of the timeshare instrument or applicable law.
340 3. The affidavit shall also specify the amounts secured by
341 the lien as of the date of the affidavit and a per diem amount
342 to account for further accrual of the amounts secured by the
343 lien.
344 (3) OBLIGOR’S RIGHT TO OBJECT TO USE OF THE NONJUDICIAL
345 FORECLOSURE PROCEDURE.—
346 (a) The obligor may object to the lienholder’s use of the
347 nonjudicial foreclosure procedure for a specific default at any
348 time before the sale of the timeshare interest under subsection
349 (8) by delivering a written objection to the trustee using the
350 objection form provided for in subsection (5). If the trustee
351 receives the written objection from the obligor, the trustee may
352 not proceed with the nonjudicial foreclosure procedure as to the
353 default specified in the notice of default and intent to sell
354 under subsection (5), and the lienholder may proceed thereafter
355 only with a judicial foreclosure action as to that specified
356 default.
357 (b) If the obligor delivers the written objection
358 authorized in paragraph (a) to the trustee more than 30 calendar
359 days after the notice of default and intent to sell is deemed
360 perfected under subsection (5), the lienholder is entitled to
361 collect from the obligor in a judicial foreclosure procedure all
362 of the costs incurred in the nonjudicial foreclosure procedure.
363 (4) CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A
364 trustee may sell an encumbered timeshare interest foreclosed
365 under this section if:
366 (a) The trustee has received the affidavit from the
367 lienholder under paragraph (2)(c);
368 (b) The trustee has not received a written objection to the
369 use of the nonjudicial foreclosure procedure under subsection
370 (3);
371 (c) There is no lis pendens recorded and pending against
372 the same timeshare interest and the trustee has not been served
373 notice of the filing of any action to enjoin the nonjudicial
374 foreclosure sale;
375 (d) The trustee has provided written notice of default and
376 intent to sell as required by subsection (5) and a period of at
377 least 30 calendar days has elapsed after such notice is deemed
378 perfected under subsection (5); and
379 (e) The notice of sale required by subsection (6) has been
380 recorded in the public records of the county or counties in
381 which the timeshare interest is located.
382 (5) NOTICE OF DEFAULT AND INTENT TO SELL.—
383 (a) In any foreclosure proceeding under this section, the
384 trustee is required to notify the obligor of the proceeding by
385 sending the obligor a written notice of default and intent to
386 sell to the notice address of the obligor by certified or
387 registered mail, return receipt requested, or by a permitted
388 delivery service, return receipt requested, as follows:
389 1. The notice of default and intent to sell shall identify
390 the obligor, the notice address of the obligor, the legal
391 description of the timeshare interest, the nature of the
392 default, the amounts secured by the lien, and a per diem amount
393 to account for further accrual of the amounts secured by the
394 lien and shall state the method by which the obligor may cure
395 the default.
396 2. The notice of default and intent to sell shall include
397 an objection form with which the obligor can object to the use
398 of the nonjudicial procedure by signing and returning the
399 objection form to the trustee. The objection form shall identify
400 the obligor, the notice address of the obligor, the timeshare
401 interest, and the return address of the trustee and shall state:
402 “The undersigned obligor exercises the obligor’s right to object
403 to the use of the nonjudicial foreclosure procedure contained in
404 section 721.855, Florida Statutes.”
405 3. The notice of default and intent to sell shall also
406 contain a statement in substantially the following form:
407
408 If you fail to cure the default as set forth in this
409 notice or take other appropriate action with regard to
410 this foreclosure matter, you risk losing ownership of
411 your timeshare interest through the nonjudicial
412 foreclosure procedure established in section 721.855,
413 Florida Statutes. You may choose to sign and send to
414 the trustee the enclosed objection form, exercising
415 your right to object to the use of the nonjudicial
416 procedure. If you do not object to the use of the
417 nonjudicial foreclosure procedure, you shall not be
418 subject to a deficiency judgment even if the proceeds
419 from the sale of your timeshare interest are
420 insufficient to offset the amounts secured by the
421 lien, which may include all past due amounts, accrued
422 interest, late fees, taxes, advances for the payment
423 of taxes, insurance and maintenance of the timeshare
424 interest, and any fees or costs incurred by the
425 lienholder or trustee, including any reasonable
426 attorney’s fees, trustee’s fees, and costs incurred in
427 connection with the default. Upon the trustee’s
428 receipt of your signed objection form, the foreclosure
429 of the lien with respect to the default specified in
430 this notice shall be subject to the judicial
431 foreclosure procedure only. You have the right to cure
432 your default in the manner set forth in this notice at
433 any time before the trustee’s sale of your timeshare
434 interest. If you object to the use of the nonjudicial
435 foreclosure procedure, you may be subject to a
436 deficiency judgment under any subsequent judicial
437 foreclosure action. In addition, if you deliver your
438 written objection to the trustee more than 30 calendar
439 days after the notice of default and intent to sell
440 has been delivered, the lienholder is entitled to
441 collect from you in a judicial foreclosure procedure
442 all of the costs incurred in the nonjudicial
443 foreclosure procedure.
444
445 4. The trustee shall also mail a copy of the notice of
446 default and intent to sell, without the objection form, to the
447 notice address of any junior interestholder by certified or
448 registered mail, return receipt requested, or by a permitted
449 delivery service, return receipt requested.
450 5. Notice under this paragraph is considered perfected upon
451 the trustee receiving the return receipt bearing the signature
452 of the obligor.
453 (b) If a signed return receipt from the certified or
454 registered mail or the permitted delivery service is received by
455 the trustee within 30 calendar days after the trustee sent the
456 notice under paragraph (a), but the trustee cannot ascertain
457 from the receipt that the obligor is the person who signed the
458 receipt, the trustee shall send a second notice in the form
459 required under paragraph (a) to the notice address of the
460 obligor by certified or registered mail, return receipt
461 requested, or by a permitted delivery service, return receipt
462 requested. Notice under this paragraph is considered perfected
463 upon the trustee receiving the return receipt for the second
464 notice bearing the signature of the obligor. Unless the trustee
465 receives a signed return receipt from the certified or
466 registered mail or the permitted delivery service for the second
467 notice within 30 calendar days after the trustee sent the notice
468 under this paragraph and the trustee can ascertain from the
469 receipt that the obligor is the person who signed the receipt,
470 the trustee shall perfect service in the manner set forth in
471 either paragraph (c) or paragraph (d).
472 (c) If a signed return receipt from the certified or
473 registered mail or the permitted delivery service is not
474 received by the trustee within 30 calendar days after the
475 trustee sent the notice under paragraph (a) or the second notice
476 under paragraph (b), if applicable, the trustee shall mail a
477 copy of the notice required by paragraph (a) by first class
478 mail, postage prepaid, to the notice address of the person with
479 the return address of the trustee on the envelope. Notice under
480 this paragraph is considered perfected upon the mailing of the
481 copy of the notice to the person.
482 (d)1. If the notice required by paragraph (a) or the second
483 notice required by paragraph (b), if applicable, is returned as
484 undeliverable within 30 calendar days after the trustee sent the
485 notice and if by a diligent search and inquiry the trustee
486 cannot obtain a different address for the obligor or junior
487 interestholder, the trustee may perfect notice against that
488 person by publication in a newspaper of general circulation in
489 the county or counties in which the timeshare interest is
490 located. The notice shall appear at least once a week for 2
491 consecutive weeks. The trustee may group an unlimited number of
492 notices in the same publication, provided that all of the
493 notices pertain to the same timeshare plan. Notice under this
494 subparagraph is considered perfected upon publication as
495 required in this subparagraph.
496 2. If the trustee’s diligent search and inquiry produces an
497 address different from the notice address, the trustee shall
498 mail a copy of the notice by first class mail, postage prepaid,
499 to the new address with the return address of the trustee on the
500 envelope. Notice under this subparagraph is considered perfected
501 upon the mailing of the copy of the notice to the new address.
502 (e) If notice is perfected under paragraph (a) or paragraph
503 (b), the trustee shall execute an affidavit in recordable form
504 setting forth the manner in which notice was perfected and
505 attach the affidavit to the certificate of compliance set forth
506 in subsection (7). The affidavit shall state the nature of the
507 notice, the date on which the notice was mailed, the name and
508 address on the envelope containing the notice, the manner in
509 which the notice was mailed, and the basis for that knowledge.
510 The signed return receipt from the certified or registered mail
511 or the permitted delivery service shall be attached to the
512 affidavit.
513 (f) If notice is perfected under paragraph (c), the trustee
514 shall execute an affidavit in recordable form setting forth the
515 manner in which notice was perfected and attach the affidavit to
516 the certificate of compliance set forth in subsection (7). The
517 affidavit shall state the nature of the notice, the date on
518 which the notice was mailed, the name and address on the
519 envelope containing the notice, the manner in which the notice
520 was mailed, the fact that a signed receipt from the certified or
521 registered mail or the permitted delivery service was not timely
522 received, the date on which a copy of the notice was mailed
523 again by first class mail with the return address of the trustee
524 on the envelope, and the name and address on the envelope
525 containing the notice. The envelopes from the attempts to mail
526 notice, if available, shall also be attached to the affidavit.
527 (g) If notice is perfected by publication under paragraph
528 (d), the trustee shall execute an affidavit in recordable form
529 setting forth the manner in which notice was perfected and
530 attach the affidavit to the certificate of compliance set forth
531 in subsection (7). The affidavit shall include all the
532 information contained in paragraph (f) and shall also state that
533 the notice was perfected by publication after diligent search
534 and inquiry was made for the current address for the obligor.
535 The returned envelope from the attempt to mail notice of the
536 publication, if available, shall be attached to the affidavit.
537 No other action of the trustee is necessary to perfect notice.
538 (6) NOTICE OF SALE.—
539 (a) The notice of sale shall set forth:
540 1. The name and notice addresses of the obligor and any
541 junior interestholder.
542 2. The legal description of the timeshare interest.
543 3. The name and address of the trustee.
544 4. A description of the default that is the basis for the
545 foreclosure.
546 5. The official records book and page numbers where the
547 claim of lien is recorded.
548 6. The amounts secured by the lien and a per diem amount to
549 account for further accrual of the amounts secured by the lien.
550 7. The date, location, and starting time of the trustee’s
551 sale.
552 8. The right of and the method by which the obligor may
553 cure the default or the right of any junior interestholder to
554 redeem its interest up to the date the trustee issues the
555 certificate of sale in accordance with paragraph (8)(f).
556 (b) The trustee shall send a copy of the notice of sale on
557 the date it is submitted for recording, by first class mail,
558 postage prepaid, to the notice addresses of the obligor and any
559 junior interestholder.
560 (c) Subsequent to the date of recording of the notice of
561 sale, no notice is required to be given to any person claiming
562 an interest in the timeshare interest except as provided in this
563 section. The recording of the notice of sale has the same force
564 and effect as the filing of a lis pendens in a judicial
565 proceeding under s. 48.23.
566 (d)1. The trustee shall publish the notice of sale in a
567 newspaper of general circulation in the county or counties in
568 which the timeshare interest is located at least once a week for
569 2 consecutive weeks before the date of the sale. The last
570 publication shall occur at least 5 calendar days before the
571 sale.
572 2. The trustee may group an unlimited number of notices of
573 sale in the same publication, provided that all of the notices
574 of sale pertain to the same timeshare plan.
575 (7) TRUSTEE’S CERTIFICATE OF COMPLIANCE.—
576 (a) Within 3 business days after the trustee conducts a
577 sale, the trustee shall execute and acknowledge a certificate of
578 compliance and record it in the public records of the county or
579 counties in which the timeshare interest is located.
580 (b) In the certificate of compliance, the trustee shall:
581 1. Confirm delivery of the notice of default and intent to
582 sell and attach the affidavit required by subsection (5).
583 2. State that the default was not cured and the timeshare
584 interest was not redeemed, and state that the trustee did not
585 receive any written objection pursuant to subsection (3).
586 3. Confirm that the notice of sale was published as
587 required under paragraph (6)(d) and attach an affidavit of
588 publication for the notice of sale.
589 4. Confirm that the notice of sale was mailed pursuant to
590 paragraph (6)(b) together with a list of the parties to whom the
591 notice of sale was mailed.
592 (c) In furtherance of the execution and recording of the
593 certificate of compliance required under this subsection, the
594 trustee is entitled to rely upon an affidavit or certification
595 from the lienholder as to the facts and circumstances of default
596 and failure to cure the default.
597 (8) MANNER OF SALE.—
598 (a) The sale of a timeshare interest by the trustee in a
599 public auction shall be held in the county in which the
600 timeshare interest is located, on the date, location, and
601 starting time designated in the notice of sale, which shall be
602 after 9 a.m. but before 4 p.m. on a business day not less than
603 30 calendar days after the recording of the notice of sale. The
604 trustee’s sale may occur online at a specific website on the
605 Internet or in any other manner used by the clerk of the court
606 for a judicial foreclosure sales procedure in the county or
607 counties in which the timeshare interest is located.
608 (b) The trustee shall conduct the sale and act as the
609 auctioneer.
610 (c) The lienholder and any person other than the trustee
611 may bid at the sale. In lieu of participating in the sale, the
612 lienholder may send the trustee written bidding instructions
613 that the trustee shall announce as appropriate during the sale.
614 (d) The trustee may postpone the sale from time to time. In
615 such case, notice of postponement must be given by the trustee
616 at the date, time, and location contained in the notice of sale.
617 The notice of sale for the postponed sale shall be mailed
618 pursuant to paragraph (6)(b), recorded pursuant to paragraph
619 (4)(e), and published pursuant to paragraph (6)(d). The
620 effective date of the initial notice of sale for purposes of
621 paragraph (4)(b) is not affected by a postponed sale.
622 (e) The highest bidder of the timeshare interest shall pay
623 the price bid to the trustee in cash or certified funds on the
624 day of the sale. If the lienholder is the highest bidder, the
625 lienholder shall receive a credit up to the amount set forth in
626 the notice of sale as required by subparagraph (6)(a)6.
627 (f) On the date of the sale and upon receipt of the cash or
628 certified funds due from the highest bidder, the trustee shall
629 issue to the highest bidder a certificate of sale stating that a
630 foreclosure conforming to the requirements of this section has
631 occurred, including the time, location, and date of the sale,
632 that the timeshare interest was sold, the amounts secured by the
633 lien, and the amount of the highest bid. A copy of the
634 certificate of sale shall be mailed by certified or registered
635 mail, return receipt requested, or by a permitted delivery
636 service, return receipt requested, to all persons entitled to
637 receive a notice of sale under subsection (6).
638 (9) EFFECT OF TRUSTEE’S SALE.—
639 (a) A sale conducted under subsection (8) forecloses and
640 terminates all interests of any person to whom notice is given
641 under paragraph (4)(d) and paragraph (6)(b), and of any other
642 person claiming by, through, or under any such person, in the
643 affected timeshare interest. The assessment lien does not merge
644 into the trustee’s deed to any extent that a subsequent judicial
645 foreclosure or reforeclosure of the assessment lien becomes
646 necessary or required. A failure to give notice to any person
647 entitled to notice does not affect the validity of the sale as
648 to the interests of any person properly notified. A person
649 entitled to notice but not given notice has the rights of a
650 person not made a defendant in a judicial foreclosure.
651 (b) A lienholder may conduct a subsequent foreclosure of a
652 timeshare interest to correct any failure to meet the
653 requirements of this section before the issuance of a
654 certificate of sale under paragraph (8)(f).
655 (c) On the issuance of a certificate of sale under
656 paragraph (8)(f), all rights of redemption that have been
657 foreclosed under this section shall terminate.
658 (d) A sale conducted under subsection (8) extinguishes the
659 assessment lien and the obligor’s liability for all amounts
660 secured by the lien. The lienholder has no right to any
661 deficiency judgment against the obligor after a sale of the
662 obligor’s timeshare interest under this section.
663 (e) The issuance and recording of the trustee’s deed is
664 presumed valid and may be relied upon by third parties without
665 actual knowledge of irregularities in the sale.
666 (10) TRUSTEE’S DEED.—
667 (a) The trustee’s deed shall include the name and address
668 of the trustee, the name and address of the highest bidder, the
669 name of the former owner, a legal description of the timeshare
670 interest, and the name and address of the preparer of the
671 trustee’s deed. The trustee’s deed shall recite that the
672 certificate of compliance was recorded, and shall contain no
673 warranties of title from the trustee.
674 (b) Ten calendar days after a sale, absent the prior filing
675 and service on the trustee of a judicial action to enjoin
676 issuance of the trustee’s deed to the timeshare interest, the
677 trustee shall:
678 1. Issue a trustee’s deed to the highest bidder.
679 2. Record the trustee’s deed in the public records of the
680 county or counties in which the timeshare interest is located.
681 (c)1. The certificate of compliance and trustee’s deed
682 together are presumptive evidence of the truth of the matters
683 set forth in them, and no action to set aside the sale and void
684 the trustee’s deed may be filed or otherwise pursued against any
685 person acquiring the timeshare interest for value, including any
686 subsequent mortgagee or buyer.
687 2. The trustee’s deed conveys to the highest bidder all
688 rights, title, and interest in the timeshare interest that the
689 former owner had, or had the power to convey, at the time of the
690 recording of the claim of lien, together with all rights, title,
691 and interest that the former owner or his or her successors in
692 interest acquired after the recording of the claim of lien.
693 3. The issuance and recording of a trustee’s deed shall
694 have the same force and effect as the issuance and recording of
695 a certificate of title by the clerk of the court in a judicial
696 foreclosure action.
697 (11) DISPOSITION OF PROCEEDS OF SALE.—
698 (a) The trustee shall apply the proceeds of the sale as
699 follows:
700 1. To the expenses of the sale, including compensation of
701 the trustee.
702 2. To the amount owed and set forth in the notice as
703 required in subparagraph (6)(a)6.
704 3. If there are junior interestholders, the trustee may
705 file an action in interpleader, pay the surplus to a court of
706 competent jurisdiction, name the competing junior
707 interestholders, and ask the court to determine the proper
708 distribution of the surplus. In any interpleader action, the
709 trustee shall recover reasonable attorney’s fees and costs.
710 4. If there are no junior interestholders, or if all junior
711 interestholders have been paid, any surplus shall be paid to the
712 former owner. If the trustee is unable to locate the former
713 owner 1 year after the sale, the surplus, if any, shall be
714 deposited with the Chief Financial Officer pursuant to chapter
715 717.
716 (b) In disposing of the proceeds of the sale, the trustee
717 may rely on the information provided in the affidavit of the
718 lienholder under paragraph (2)(c) and, in the event of a dispute
719 or uncertainty over such claims, the trustee has the discretion
720 to submit the matter to adjudication by court, by interpleader,
721 or otherwise and shall recover reasonable attorney’s fees and
722 costs.
723 (12) JUDICIAL FORECLOSURE ACTIONS.—The nonjudicial
724 foreclosure procedure established in this section does not
725 impair or otherwise affect the lienholder’s continuing right to
726 bring a judicial foreclosure action, in lieu of using the
727 nonjudicial foreclosure procedure, with respect to any
728 assessment lien.
729 (13) APPLICATION.—This section applies to any default
730 giving rise to the imposition of an assessment lien which occurs
731 after the effective date of this section. An amendment to a
732 timeshare instrument is not required to permit a managing entity
733 lienholder to use the nonjudicial foreclosure procedures of this
734 section. If a timeshare instrument contains any provision that
735 prevents the use of nonjudicial foreclosure procedures, an
736 amendment to the timeshare instrument permitting the use of the
737 nonjudicial foreclosure procedure set forth in this section may
738 be adopted by a majority of those present and voting at a duly
739 called meeting of the owners’ association at which at least 15
740 percent of the voting interests are present in person or by
741 proxy.
742 (14) ACTIONS FOR FAILURE TO FOLLOW THE NONJUDICIAL
743 FORECLOSURE PROCEDURE.—An action for actual damages for a
744 material violation of this section may be brought by an obligor
745 against the lienholder for the failure to follow the nonjudicial
746 foreclosure procedure contained in this section.
747 Section 9. Section 721.856, Florida Statutes, is created to
748 read:
749 721.856 Procedure for the nonjudicial foreclosure of
750 mortgage liens.—The provisions of this section establish a
751 nonjudicial foreclosure procedure for mortgage liens.
752 (1) APPOINTMENT OF TRUSTEE.—
753 (a) A trustee or a substitute trustee may be appointed by a
754 lienholder at any time by recording a notice of appointment of
755 trustee or notice of substitution of trustee in the public
756 records of the county or counties in which the timeshare
757 interest is located. A lienholder may appoint multiple trustees
758 in a single appointment, and any appointed trustee may be used
759 by the lienholder regarding the nonjudicial foreclosure of any
760 mortgage lien.
761 (b) The recorded notice of appointment of trustee or notice
762 of substitution of trustee shall contain the name and address of
763 the trustee or substitute trustee, the name and address of the
764 lienholder, and the name and address of the timeshare plan.
765 (c) The lienholder shall maintain a list of all trustees
766 and substitute trustees appointed by the lienholder and shall
767 provide an obligor with verification that a particular person is
768 an appointed trustee or substitute trustee within 3 business
769 days after receipt of a written request for such verification
770 from the obligor.
771 (2) INITIATING THE NONJUDICIAL FORECLOSURE OF MORTGAGE
772 LIENS.—
773 (a) Before initiating the nonjudicial foreclosure against a
774 timeshare interest, the mortgage, or an amendment to a mortgage
775 executed by the obligor before the effective date of this
776 section, must contain a statement in substantially the following
777 form:
778
779 If the mortgagor fails to make timely payments under
780 the obligation secured by this mortgage, or is
781 otherwise deemed in uncured default of this mortgage,
782 the lien against the mortgagor’s timeshare interest
783 created by this mortgage may be foreclosed in
784 accordance with either a judicial foreclosure
785 procedure or a nonjudicial procedure and may result in
786 the loss of your timeshare interest. If the mortgagee
787 initiates a nonjudicial foreclosure procedure, the
788 mortgagor shall have the option to object and the
789 mortgagee may proceed only by filing a judicial
790 foreclosure action.
791
792 (b)1. In order to initiate a nonjudicial foreclosure
793 procedure against a timeshare interest, the lienholder shall
794 deliver an affidavit to the trustee that identifies the obligor,
795 the notice address of the obligor, the timeshare interest, the
796 official records book and page number where the mortgage is
797 recorded, and the name and notice address of any junior
798 interestholder. The affidavit shall be accompanied by a title
799 search of the timeshare interest identifying any junior
800 interestholders of record, and the title search must be
801 performed within 60 calendar days before the date of the
802 affidavit.
803 2. The affidavit shall also state that the obligor has
804 defaulted in the obligation to make a payment under a specified
805 provision of the mortgage or is otherwise deemed in uncured
806 default under a specified provision of the mortgage.
807 3. The affidavit shall also specify the amounts secured by
808 the lien as of the date of the affidavit and a per diem amount
809 to account for further accrual of the amounts secured by the
810 lien.
811 (3) OBLIGOR’S RIGHT TO OBJECT TO USE OF THE NONJUDICIAL
812 FORECLOSURE PROCEDURE.—
813 (a) The obligor may object to the lienholder’s use of the
814 nonjudicial foreclosure procedure for a specific default at any
815 time before the sale of the timeshare interest under subsection
816 (8) by delivering a written objection to the trustee using the
817 objection form provided for in subsection (5). If the trustee
818 receives the written objection from the obligor, the trustee may
819 not proceed with the nonjudicial foreclosure procedure as to the
820 default specified in the notice of default and intent to sell
821 under subsection (5), and the lienholder may proceed thereafter
822 only with a judicial foreclosure action as to that specified
823 default.
824 (b) If the obligor delivers the written objection
825 authorized in paragraph (a) to the trustee more than 30 calendar
826 days after the notice of default and intent to sell is deemed
827 perfected under subsection (5), the lienholder is entitled to
828 collect from the obligor in a judicial foreclosure procedure all
829 of the costs incurred in the nonjudicial foreclosure procedure.
830 (4) CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A
831 trustee may sell an encumbered timeshare interest foreclosed
832 under this section if:
833 (a) The trustee has received the affidavit from the
834 lienholder under paragraph (2)(c);
835 (b) The trustee has not received a written objection to the
836 use of the nonjudicial foreclosure procedure under subsection
837 (3);
838 (c) There is no lis pendens recorded and pending against
839 the same timeshare interest, and the trustee has not been served
840 notice of the filing of any action to enjoin the nonjudicial
841 foreclosure sale;
842 (d) The trustee is in possession of the original promissory
843 note executed by the mortgagor and secured by the mortgage lien;
844 (e) The trustee has provided written notice of default and
845 intent to sell as required by subsection (5) and a period of at
846 least 30 calendar days has elapsed after such notice is deemed
847 perfected under subsection (5); and
848 (f) The notice of sale required by subsection (6) has been
849 recorded in the public records of the county in which the
850 mortgage was recorded.
851 (5) NOTICE OF DEFAULT AND INTENT TO SELL.—
852 (a) In any foreclosure proceeding under this section, the
853 trustee is required to notify the obligor of the proceeding by
854 sending the obligor a written notice of default and intent to
855 sell to the notice address of the obligor by certified or
856 registered mail, return receipt requested, or by a permitted
857 delivery service, return receipt requested, as follows:
858 1. The notice of default and intent to sell shall identify
859 the obligor, the notice address of the obligor, the legal
860 description of the timeshare interest, the nature of the
861 default, the amounts secured by the lien, and a per diem amount
862 to account for further accrual of the amounts secured by the
863 lien and shall state the method by which the obligor may cure
864 the default.
865 2. The notice of default and intent to sell shall include
866 an objection form with which the obligor can object to the use
867 of the nonjudicial procedure by signing and returning the
868 objection form to the trustee. The objection form shall identify
869 the obligor, the notice address of the obligor, the timeshare
870 interest, and the return address of the trustee and shall state:
871 “The undersigned obligor exercises the obligor’s right to object
872 to the use of the nonjudicial foreclosure procedure contained in
873 section 721.856, Florida Statutes.”
874 3. The notice of default and intent to sell shall also
875 contain a statement in substantially the following form:
876
877 If you fail to cure the default as set forth in this
878 notice or take other appropriate action with regard to
879 this foreclosure matter, you risk losing ownership of
880 your timeshare interest through the nonjudicial
881 foreclosure procedure established in section 721.856,
882 Florida Statutes. You may choose to sign and send to
883 the trustee the enclosed objection form, exercising
884 your right to object to the use of the nonjudicial
885 procedure. If you do not object to the use of the
886 nonjudicial foreclosure procedure, you shall not be
887 subject to a deficiency judgment even if the proceeds
888 from the sale of your timeshare interest are
889 insufficient to offset the amounts secured by the
890 lien, which may include all past due amounts, accrued
891 interest, late fees, taxes, advances for the payment
892 of taxes, insurance, and maintenance of the timeshare
893 interest, and any fees or costs incurred by the
894 lienholder or trustee, including any reasonable
895 attorney’s fees, trustee’s fees and costs incurred in
896 connection with the default. Upon the trustee’s
897 receipt of your signed objection form, the foreclosure
898 of the lien with respect to the default specified in
899 this notice shall be subject to the judicial
900 foreclosure procedure only. You have the right to cure
901 your default in the manner set forth in this notice at
902 any time before the trustee’s sale of your timeshare
903 interest. If you object to the use of the nonjudicial
904 foreclosure procedure, you may be subject to a
905 deficiency judgment under any subsequent judicial
906 foreclosure action. In addition, if you deliver your
907 written objection to the trustee more than 30 calendar
908 days after the notice of default and intent to sell
909 has been delivered, the lienholder is entitled to
910 collect from you in a judicial foreclosure procedure
911 all of the costs incurred in the nonjudicial
912 foreclosure procedure.
913
914 4. The trustee shall also mail a copy of the notice of
915 default and intent to sell, without the objection form, to the
916 notice address of any junior interestholder by certified or
917 registered mail, return receipt requested, or by a permitted
918 delivery service, return receipt requested.
919 5. Notice under this paragraph is considered perfected upon
920 the trustee receiving the return receipt bearing the signature
921 of the obligor.
922 (b) If a signed return receipt from the certified or
923 registered mail or the permitted delivery service is received by
924 the trustee within 30 calendar days after the trustee sent the
925 notice under paragraph (a), but the trustee cannot ascertain
926 from the receipt that the obligor is the person who signed the
927 receipt, the trustee shall send a second notice in the form
928 required under paragraph (a) to the notice address of the
929 obligor by certified or registered mail, return receipt
930 requested, or by a permitted delivery service, return receipt
931 requested. Notice under this paragraph is considered perfected
932 upon the trustee receiving the return receipt for the second
933 notice bearing the signature of the obligor. Unless the trustee
934 receives a signed return receipt from the certified or
935 registered mail or the permitted delivery service for the second
936 notice within 30 calendar days after the trustee sent the notice
937 under this paragraph and the trustee can ascertain from the
938 receipt that the obligor is the person who signed the receipt,
939 the trustee shall perfect service in the manner set forth in
940 either paragraph (c) or paragraph (d).
941 (c) If a signed return receipt from the certified or
942 registered mail or the permitted delivery service is not
943 received by the trustee within 30 calendar days after the
944 trustee sent the notice under paragraph (a) or the second notice
945 under paragraph (b), if applicable, the trustee shall mail a
946 copy of the notice required by paragraph (a) by first class
947 mail, postage prepaid, to the notice address of the person with
948 the return address of the trustee on the envelope. Notice under
949 this paragraph is considered perfected upon the mailing of the
950 copy of the notice to the person.
951 (d)1. If the notice required by paragraph (a) or the second
952 notice required by paragraph (b), if applicable, is returned as
953 undeliverable within 30 calendar days after the trustee sent the
954 notice and if by a diligent search and inquiry the trustee
955 cannot obtain a different address for the obligor or junior
956 interestholder, the trustee may perfect notice against that
957 person by publication in a newspaper of general circulation in
958 the county or counties in which the timeshare interest is
959 located. The notice shall appear at least once a week for 2
960 consecutive weeks. The trustee may group an unlimited number of
961 notices in the same publication, provided that all of the
962 notices pertain to the same timeshare plan. Notice under this
963 subparagraph is considered perfected upon publication as
964 required in this subparagraph.
965 2. If the trustee’s diligent search and inquiry produces an
966 address different from the notice address, the trustee shall
967 mail a copy of the notice by first class mail, postage prepaid,
968 to the new address with the return address of the trustee on the
969 envelope. Notice under this subparagraph is considered perfected
970 upon the mailing of the copy of the notice to the new address.
971 (e) If notice is perfected under paragraph (a) or paragraph
972 (b), the trustee shall execute an affidavit in recordable form
973 setting forth the manner in which notice was perfected and
974 attach the affidavit to the certificate of compliance set forth
975 in subsection (7). The affidavit shall state the nature of the
976 notice, the date on which the notice was mailed, the name and
977 address on the envelope containing the notice, the manner in
978 which the notice was mailed, and the basis for that knowledge.
979 The signed return receipt from the certified or registered mail
980 or the permitted delivery service shall be attached to the
981 affidavit.
982 (f) If notice is perfected under paragraph (c), the trustee
983 shall execute an affidavit in recordable form setting forth the
984 manner in which notice was perfected and attach the affidavit to
985 the certificate of compliance set forth in subsection (7). The
986 affidavit shall state the nature of the notice, the date on
987 which the notice was mailed, the name and address on the
988 envelope containing the notice, the manner in which the notice
989 was mailed, the fact that a signed receipt from the certified or
990 registered mail or the permitted delivery service was not timely
991 received, the date on which a copy of the notice was mailed
992 again by first class mail with the return address of the trustee
993 on the envelope, and the name and address on the envelope
994 containing the notice. The envelopes from the attempts to mail
995 notice, if available, shall also be attached to the affidavit.
996 (g) If notice is perfected by publication under paragraph
997 (d), the trustee shall execute an affidavit in recordable form
998 setting forth the manner in which notice was perfected and
999 attach the affidavit to the certificate of compliance set forth
1000 in subsection (7). The affidavit shall include all the
1001 information contained in paragraph (f) and shall also state that
1002 the notice was perfected by publication after diligent search
1003 and inquiry was made for the current address for the obligor.
1004 The returned envelope from the attempt to mail notice of the
1005 publication, if available, shall be attached to the affidavit.
1006 No other action of the trustee is necessary to perfect notice.
1007 (6) NOTICE OF SALE.—
1008 (a) The notice of sale shall set forth:
1009 1. The name and notice addresses of the obligor and any
1010 junior interestholder.
1011 2. The legal description of the timeshare interest.
1012 3. The name and address of the trustee.
1013 4. A description of the default that is the basis for the
1014 foreclosure.
1015 5. The official records book and page numbers where the
1016 mortgage is recorded.
1017 6. The amounts secured by the lien and a per diem amount to
1018 account for further accrual of the amounts secured by the lien.
1019 7. The date, location, and starting time of the trustee’s
1020 sale.
1021 8. The right of and the method by which the obligor may
1022 cure the default or the right of any junior interestholder to
1023 redeem its interest up to the date the trustee issues the
1024 certificate of sale in accordance with paragraph (8)(f).
1025 (b) The trustee shall send a copy of the notice of sale on
1026 the date it is submitted for recording, by first class mail,
1027 postage prepaid, to the notice addresses of the obligor and any
1028 junior interestholder.
1029 (c) Subsequent to the date of recording of the notice of
1030 sale, no notice is required to be given to any person claiming
1031 an interest in the timeshare interest except as provided in this
1032 section. The recording of the notice of sale has the same force
1033 and effect as the filing of a lis pendens in a judicial
1034 proceeding under s. 48.23.
1035 (d)1. The trustee shall publish the notice of sale in a
1036 newspaper of general circulation in the county or counties in
1037 which the timeshare interest is located at least once a week for
1038 two consecutive weeks before the date of the sale. The last
1039 publication shall occur at least 5 calendar days before the
1040 sale.
1041 2. The trustee may group an unlimited number of notices of
1042 sale in the same publication, provided that all of the notices
1043 of sale pertain to the same timeshare plan.
1044 (7) TRUSTEE’S CERTIFICATE OF COMPLIANCE.—
1045 (a) Within 3 business days after the trustee conducts a
1046 sale, the trustee shall execute and acknowledge a certificate of
1047 compliance and record it in the public records of the county or
1048 counties in which the timeshare interest is located.
1049 (b) In the certificate of compliance, the trustee shall:
1050 1. Confirm delivery of the notice of default and intent to
1051 sell and attach the affidavit required by subsection (5).
1052 2. State that the default was not cured and the timeshare
1053 interest was not redeemed, and state that the trustee did not
1054 receive any written objection pursuant to subsection (3).
1055 3. State that the trustee is in possession of the original
1056 promissory note executed by the mortgagor and secured by the
1057 mortgage lien.
1058 4. Confirm that the notice of sale was published as
1059 required under (6)(d) and attach an affidavit of publication for
1060 the notice of sale.
1061 5. Confirm that the notice of sale was mailed pursuant to
1062 paragraph (6)(b) together with a list of the parties to whom the
1063 notice of sale was mailed.
1064 (c) In furtherance of the execution and recording of the
1065 certificate of compliance required under this subsection, the
1066 trustee is entitled to rely upon an affidavit or certification
1067 from the lienholder as to the facts and circumstances of default
1068 and failure to cure the default.
1069 (8) MANNER OF SALE.—
1070 (a) The sale of a timeshare interest by the trustee in a
1071 public auction shall be held in the county in which the
1072 timeshare interest is located, on the date, location, and
1073 starting time designated in the notice of sale, which shall be
1074 after 9 a.m. but before 4 p.m. on a business day not less than
1075 30 calendar days after the recording of the notice of sale. The
1076 trustee’s sale may occur online at a specific website on the
1077 Internet or in any other manner used by the clerk of the court
1078 for a judicial foreclosure sales procedure in the county or
1079 counties in which the timeshare interest is located.
1080 (b) The trustee shall conduct the sale and act as the
1081 auctioneer.
1082 (c) The lienholder and any person other than the trustee
1083 may bid at the sale. In lieu of participating in the sale, the
1084 lienholder may send the trustee written bidding instructions
1085 that the trustee shall announce as appropriate during the sale.
1086 (d) The trustee may postpone the sale from time to time. In
1087 such case, notice of postponement must be given by the trustee
1088 at the date, time, and location contained in the notice of sale.
1089 The notice of sale for the postponed sale shall be mailed
1090 pursuant to paragraph (6)(b), recorded pursuant to paragraph
1091 (4)(f), and published pursuant to paragraph (6)(d). The
1092 effective date of the initial notice of sale for purposes of
1093 paragraph (4)(b) is not affected by a postponed sale.
1094 (e) The highest bidder of the timeshare interest shall pay
1095 the price bid to the trustee in cash or certified funds on the
1096 day of the sale. If the lienholder is the highest bidder, the
1097 lienholder shall receive a credit up to the amount set forth in
1098 the notice of sale as required by subparagraph (6)(a)6.
1099 (f) On the date of the sale and upon receipt of the cash or
1100 certified funds due from the highest bidder, the trustee shall
1101 issue to the highest bidder a certificate of sale stating that a
1102 foreclosure conforming to the requirements of this section has
1103 occurred, including the time, location, and date of the sale,
1104 that the timeshare interest was sold, the amounts secured by the
1105 lien, and the amount of the highest bid. A copy of the
1106 certificate of sale shall be mailed by certified or registered
1107 mail, return receipt requested, or by a permitted delivery
1108 service, return receipt requested, to all persons entitled to
1109 receive a notice of sale under subsection (6).
1110 (9) EFFECT OF TRUSTEE’S SALE.—
1111 (a) A sale conducted under subsection (8) forecloses and
1112 terminates all interests of any person to whom notice is given
1113 under paragraph (4)(e) and paragraph (6)(b), and of any other
1114 person claiming by, through, or under any such person, in the
1115 affected timeshare interest. The mortgage lien does not merge
1116 into the trustee’s deed to any extent that a subsequent judicial
1117 foreclosure or reforeclosure of the mortgage lien becomes
1118 necessary or required. A failure to give notice to any person
1119 entitled to notice does not affect the validity of the sale as
1120 to the interests of any person properly notified. A person
1121 entitled to notice but not given notice has the rights of a
1122 person not made a defendant in a judicial foreclosure. Any
1123 subsequent foreclosure required by failure to notify a party
1124 under paragraph (6)(b) may be conducted under this section.
1125 (b) A lienholder may conduct a subsequent foreclosure of a
1126 timeshare interest to correct any failure to meet the
1127 requirements of this section before the issuance of a
1128 certificate of sale under paragraph (8)(f).
1129 (c) On the issuance of a certificate of sale under
1130 paragraph (8)(f), all rights of redemption that have been
1131 foreclosed under this section shall terminate.
1132 (d) A sale conducted under subsection (8) extinguishes the
1133 lien and the obligor’s liability for all amounts secured by the
1134 lien. The lienholder has no right to any deficiency judgment
1135 against the obligor after a sale of the obligor’s timeshare
1136 interest under this section.
1137 (e) The issuance and recording of the trustee’s deed is
1138 presumed valid and may be relied upon by third parties without
1139 actual knowledge of irregularities in the sale.
1140 (10) TRUSTEE’S DEED.—
1141 (a) The trustee’s deed shall include the name and address
1142 of the trustee, the name and address of the highest bidder, the
1143 name of the former owner, a legal description of the timeshare
1144 interest, and the name and address of the preparer of the
1145 trustee’s deed. The trustee’s deed shall recite that the
1146 certificate of compliance was recorded, and shall contain no
1147 warranties of title from the trustee.
1148 (b) Ten calendar days after a sale, absent the prior filing
1149 and service on the trustee of a judicial action to enjoin
1150 issuance of the trustee’s deed to the timeshare interest, the
1151 trustee shall:
1152 1. Cancel the original promissory note executed by the
1153 mortgagor and secured by the mortgage lien.
1154 2. Issue a trustee’s deed to the highest bidder.
1155 3. Record the trustee’s deed in the public records of the
1156 county or counties in which the timeshare interest is located.
1157 (c)1. The certificate of compliance and trustee’s deed
1158 together are presumptive evidence of the truth of the matters
1159 set forth in them, and no action to set aside the sale and void
1160 the trustee’s deed may be filed or otherwise pursued against any
1161 person acquiring the timeshare interest for value, including any
1162 subsequent mortgagee or buyer.
1163 2. The trustee’s deed conveys to the highest bidder all
1164 rights, title, and interest in the timeshare interest that the
1165 former owner had, or had the power to convey, at the time of the
1166 execution of the mortgage, together with all rights, title, and
1167 interest that the former owner or his or her successors in
1168 interest acquired after the execution of the mortgage.
1169 3. The issuance and recording of a trustee’s deed shall
1170 have the same force and effect as the issuance and recording of
1171 a certificate of title by the clerk of the court in a judicial
1172 foreclosure action.
1173 (11) DISPOSITION OF PROCEEDS OF SALE.—
1174 (a) The trustee shall apply the proceeds of the sale as
1175 follows:
1176 1. To the expenses of the sale, including compensation of
1177 the trustee.
1178 2. To the amount owed and set forth in the notice as
1179 required in subparagraph (6)(a)6.
1180 3. If there are junior interestholders, the trustee may
1181 file an action in interpleader, pay the surplus to a court of
1182 competent jurisdiction, name the competing junior
1183 interestholders, and ask the court to determine the proper
1184 distribution of the surplus. In any interpleader action, the
1185 trustee shall recover reasonable attorney’s fees and costs.
1186 4. If there are no junior interestholders, or if all junior
1187 interestholders have been paid, any surplus shall be paid to the
1188 former owner. If the trustee is unable to locate the former
1189 owner 1 year after the sale, the surplus, if any, shall be
1190 deposited with the Chief Financial Officer pursuant to chapter
1191 717.
1192 (b) In disposing of the proceeds of the sale, the trustee
1193 may rely on the information provided in the affidavit of the
1194 lienholder under paragraph (2)(c) and, in the event of a dispute
1195 or uncertainty over such claims, the trustee has the discretion
1196 to submit the matter to adjudication by court, by interpleader,
1197 or otherwise and shall recover reasonable attorney’s fees and
1198 costs.
1199 (12) JUDICIAL FORECLOSURE ACTIONS.—The nonjudicial
1200 foreclosure procedure established in this section does not
1201 impair or otherwise affect the lienholder’s continuing right to
1202 bring a judicial foreclosure action, in lieu of using the
1203 nonjudicial foreclosure procedure, with respect to any mortgage
1204 lien.
1205 (13) ACTIONS FOR FAILURE TO FOLLOW THE NONJUDICIAL
1206 FORECLOSURE PROCEDURE.—An action for actual damages for a
1207 material violation of this section may be brought by an obligor
1208 against the lienholder for the failure to follow the nonjudicial
1209 foreclosure procedure contained in this section.
1210 Section 10. Subsection (1) of section 721.86, Florida
1211 Statutes, is amended to read:
1212 721.86 Miscellaneous provisions.—
1213 (1) In the event of a conflict between the provisions of
1214 this part and the other provisions of this chapter, chapter 702,
1215 or other applicable law, the provisions of this part shall
1216 prevail. The procedures in this part must be given effect in the
1217 context of any foreclosure proceedings against timeshare estates
1218 governed by this chapter, chapter 702, chapter 718, or chapter
1219 719.
1220 Section 11. This act shall take effect upon becoming a law.