Florida Senate - 2010 CS for SB 2358
By the Committee on Regulated Industries; and Senator Gardiner
580-03626-10 20102358c1
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 action or a trustee
7 procedure 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 the application of certain
13 provisions with respect to judicial foreclosure
14 actions; amending s. 721.85, F.S.; conforming
15 provisions to changes made by the act; creating s.
16 721.855, F.S.; establishing procedure for the trustee
17 foreclosure of assessment liens; providing for the
18 appointment of a trustee; providing recording
19 requirements for such liens; providing procedures for
20 the initiation of a trustee foreclosure procedure
21 against a timeshare interest; providing procedures for
22 an obligor’s objection to the trustee foreclosure
23 procedure; providing conditions to a trustee’s
24 exercise of power of sale; providing requirements for
25 a notice of default and intent to sell; providing
26 requirements for a notice of sale; providing
27 requirements for the sale by auction of foreclosed
28 encumbered timeshare interests; providing requirements
29 for a trustee’s certificate of compliance; providing
30 for the effect of a trustee’s sale; providing
31 requirements for a trustee’s deed; providing for the
32 disposition of proceeds of the sale; providing that
33 the trustee foreclosure procedure does not impair or
34 otherwise affect the right to bring certain actions;
35 providing for application; providing for actions for
36 failure to follow the trustee foreclosure procedure;
37 creating s. 721.856, F.S.; establishing a procedure
38 for the trustee foreclosure of mortgage liens;
39 providing for the appointment of a trustee; providing
40 recording requirements for such liens; providing
41 procedures for the initiation of a trustee foreclosure
42 procedure against a timeshare interest; providing
43 procedures for an obligor’s objection to the trustee
44 foreclosure procedure; providing conditions to a
45 trustee’s exercise of a power of sale; providing
46 requirements for a notice of default and intent to
47 sell; providing requirements for a notice of sale;
48 providing requirements for a trustee’s certificate of
49 compliance; providing requirements for the sale by
50 auction of foreclosed encumbered timeshare interests;
51 providing for the effect of a trustee’s sale;
52 providing requirements for a trustee’s deed; providing
53 for the disposition of proceeds of the sale; providing
54 that the trustee foreclosure procedure does not impair
55 or otherwise affect the right to bring certain
56 actions; providing for actions for failure to follow
57 the trustee foreclosure procedure; amending s. 721.86,
58 F.S.; providing for priority of application in case of
59 conflict; amending s. 721.20, F.S.; conforming
60 terminology; providing an effective date.
61
62 Be It Enacted by the Legislature of the State of Florida:
63
64 Section 1. Paragraph (jj) is added to subsection (5) of
65 section 721.07, Florida Statutes, to read:
66 721.07 Public offering statement.—Prior to offering any
67 timeshare plan, the developer must submit a filed public
68 offering statement to the division for approval as prescribed by
69 s. 721.03, s. 721.55, or this section. Until the division
70 approves such filing, any contract regarding the sale of that
71 timeshare plan is subject to cancellation by the purchaser
72 pursuant to s. 721.10.
73 (5) Every filed public offering statement for a timeshare
74 plan which is not a multisite timeshare plan shall contain the
75 information required by this subsection. The division is
76 authorized to provide by rule the method by which a developer
77 must provide such information to the division.
78 (jj) The following statement in conspicuous type:
79
80 The managing entity has a lien against each timeshare
81 interest to secure the payment of assessments, ad
82 valorem assessments, tax assessments, and special
83 assessments. Your failure to make any required
84 payments may result in the judicial or trustee
85 foreclosure of an assessment lien and the loss of your
86 timeshare interest. If the managing entity initiates a
87 trustee procedure, you shall have the option to object
88 to the use of the trustee foreclosure procedure and
89 the managing entity may only proceed by filing a
90 judicial foreclosure action.
91 Section 2. Subsections (2) and (3) of section 721.16,
92 Florida Statutes, are amended to read:
93 721.16 Liens for overdue assessments; liens for labor
94 performed on, or materials furnished to, a timeshare unit.—
95 (2) The managing entity may bring a judicial an action in
96 its name to foreclose a lien under subsection (1) in the manner
97 a mortgage of real property is foreclosed and may also bring an
98 action to recover a money judgment for the unpaid assessments
99 without waiving any claim of lien. As an alternative to
100 initiating a judicial action, the managing entity may initiate a
101 trustee procedure to foreclose an assessment lien under s.
102 721.855.
103 (3) The lien is effective from the date of recording a
104 claim of lien in the official public records of the county or
105 counties in which the timeshare interest is accommodations and
106 facilities constituting the timeshare plan are located. The
107 claim of lien shall state the name of the timeshare plan and
108 identify the timeshare interest for which the lien is effective,
109 state the name of the purchaser, state the assessment amount
110 due, and state the due dates. Notwithstanding any provision of
111 s. 718.116(5) s. 718.116(5)(a) or s. 719.108(4) to the contrary,
112 the lien is effective until satisfied or until 5 years have
113 expired after the date the claim of lien is recorded unless,
114 within that time, an action to enforce the lien is commenced
115 pursuant to subsection (2). A claim of lien for assessments may
116 include only assessments which are due when the claim is
117 recorded. A claim of lien shall be signed and acknowledged by an
118 officer or agent of the managing entity. Upon full payment, the
119 person making the payment is entitled to receive a satisfaction
120 of the lien.
121 Section 3. Part III of chapter 721, Florida Statutes,
122 entitled “Foreclosure of Liens on Timeshare Estates,” is renamed
123 “Foreclosure of Liens on Timeshare Interests.”
124 Section 4. Section 721.81, Florida Statutes, is amended to
125 read:
126 721.81 Legislative purpose.—The purposes of this part are
127 to:
128 (1) Recognize that timeshare interests estates are parcels
129 of real property used for vacation experience rather than for
130 homestead or investment purposes and that there are numerous
131 timeshare interests estates in this the state.
132 (2) Recognize that the economic health and efficient
133 operation of the vacation ownership industry are in part
134 dependent upon the availability of an efficient and economical
135 process for all timeshare interest foreclosures foreclosure.
136 (3) Recognize the need to assist both owners’ associations
137 and mortgagees by simplifying and expediting the process for the
138 judicial and trustee of foreclosure of assessment liens and
139 mortgage liens against timeshare interests estates.
140 (4) Improve judicial economy and reduce court congestion
141 and the cost to taxpayers by establishing streamlined procedures
142 for the judicial and trustee foreclosure of assessment liens and
143 mortgage liens against timeshare interests estates.
144 (5) Recognize that nearly all timeshare interest
145 foreclosures are uncontested.
146 (6) Protect the ability of consumers who own timeshare
147 interests located in this state to choose a judicial proceeding
148 for the foreclosure of an assessment lien or a mortgage lien
149 against their timeshare interest.
150 (7) Recognize that the use of the trustee foreclosure
151 procedure established by ss. 721.855 and 721.856 shall have the
152 same force and effect as the use of the judicial foreclosure
153 procedure against a timeshare interest with respect to the
154 provisions of this chapter or any other applicable law. However,
155 obligors shall not be subject to a deficiency judgment even if
156 the proceeds from the sale of the timeshare interest are
157 insufficient to offset the amounts secured by the lien.
158 Section 5. Section 721.82, Florida Statutes, is amended to
159 read:
160 721.82 Definitions.—As used in this part, the term:
161 (1) “Amounts secured by the lien” means all amounts secured
162 by an assessment lien or mortgage lien, including, but not
163 limited to, all past due amounts, accrued interest, late fees,
164 taxes, advances for the payment of taxes, insurance and
165 maintenance of the timeshare interest, and any fees or costs
166 incurred by the lienholder or trustee, including any reasonable
167 attorney’s fees, trustee’s fees, and costs incurred in
168 connection with the default.
169 (2)(1) “Assessment lien” means:
170 (a) A lien for delinquent assessments as provided in ss.
171 721.16, 718.116, and 719.108, and 721.16 as to timeshare
172 condominiums; or
173 (b) A lien for unpaid ad valorem assessments, tax
174 assessments, taxes and special assessments as provided in s.
175 192.037(8).
176 (3)(2) “Junior interestholder” means any person who has a
177 lien or interest of record against a timeshare interest estate
178 in the county or counties in which the timeshare interest estate
179 is located, which is inferior to the mortgage lien or assessment
180 lien being foreclosed under this part.
181 (4)(3) “Lienholder” means a holder of an assessment lien or
182 a holder of a mortgage lien, as applicable. A receiver appointed
183 under s. 721.26 is a lienholder for purposes of foreclosure of
184 assessment liens under this part.
185 (5)(4) “Mortgage” has the same meaning set forth in s.
186 697.01.
187 (6)(5) “Mortgage lien” means a security interest in a
188 timeshare interest estate created by a mortgage encumbering the
189 timeshare interest estate.
190 (7)(6) “Mortgagee” means a person holding a mortgage lien.
191 (8)(7) “Mortgagor” means a person granting a mortgage lien
192 or a person who has assumed the obligation secured by a mortgage
193 lien.
194 (9)(8) “Notice address” means:
195 (a) As to an assessment lien, the address of the current
196 owner of a timeshare interest estate as reflected by the books
197 and records of the timeshare plan under ss. 721.13(4) and
198 721.15(7).
199 (b) As to a mortgage lien:
200 1. The address of the mortgagor as set forth in the
201 mortgage, the promissory note or a separate document executed by
202 the mortgagor at the time the mortgage lien was created, or the
203 most current address of the mortgagor according to the records
204 of the mortgagee; and
205 2. If the current owner of the timeshare interest estate is
206 different from the mortgagor, the address of the current owner
207 of the timeshare interest estate as reflected by the books and
208 records of the mortgagee.
209 (c) As to a junior interestholder, the address as set forth
210 in the recorded instrument creating the junior lien interest or
211 interest lien, or in any recorded amendment supplement thereto
212 changing the address, or in any written notification by the
213 junior interestholder to the foreclosing lienholder changing the
214 of such change in address.
215 (10)(9) “Obligor” means the mortgagor, the person subject
216 to an assessment lien, or the record owner of the timeshare
217 interest estate.
218 (11) “Permitted delivery service” means any nationally
219 recognized common carrier delivery service or international
220 airmail service that allows for return receipt service.
221 (12)(10) “Registered agent” means an agent duly appointed
222 by the obligor under s. 721.84 for the purpose of accepting all
223 notices and service of process under this part. A registered
224 agent may be an individual resident in this state whose business
225 office qualifies as a registered office, or a domestic or
226 foreign corporation or a not-for-profit corporation as defined
227 in chapter 617 authorized to transact business or to conduct its
228 affairs in this state, whose business office qualifies as a
229 registered office. A registered agent for any obligor may not be
230 the lienholder or the attorney for the lienholder.
231 (13)(11) “Registered office” means the street address of
232 the business office of the registered agent appointed under s.
233 721.84, located in this state.
234 (14) “Trustee” means an attorney who is a member in good
235 standing of The Florida Bar or his or her law firm, or a title
236 insurer authorized to transact business in this state under s.
237 624.401, appointed as trustee or as substitute trustee in
238 accordance with s. 721.855 or s. 721.856. A receiver appointed
239 under s. 721.26 may act as a trustee under s. 721.855. A trustee
240 must be independent as required by s. 721.05(20).
241 Section 6. Section 721.83, Florida Statutes, is amended to
242 read:
243 721.83 Consolidation of judicial foreclosure actions.—
244 (1) A complaint in a foreclosure proceeding involving
245 timeshare interests estates may join in the same action multiple
246 defendant obligors and junior interestholders of separate
247 timeshare interests estates, provided:
248 (a) The foreclosure proceeding involves a single timeshare
249 property.
250 (b) The foreclosure proceeding is filed by a single
251 plaintiff.
252 (c) The default and remedy provisions in the written
253 instruments on which the foreclosure proceeding is based are
254 substantially the same for each defendant.
255 (d) The nature of the defaults alleged is the same for each
256 defendant.
257 (e) No more than 15 timeshare interests estates, without
258 regard to the number of defendants, are joined within the same
259 consolidated foreclosure action.
260 (2) In any foreclosure proceeding involving multiple
261 defendants filed under subsection (1), the court shall sever for
262 separate trial any count of the complaint in which a defense or
263 counterclaim is timely raised by a defendant.
264 (3) A consolidated timeshare foreclosure action shall be
265 considered a single action, suit, or proceeding for the payment
266 of filing fees and service charges pursuant to general law. In
267 addition to the payment of such filing fees and service charges,
268 an additional filing fee of up to $10 for each timeshare
269 interest estate joined in that action shall be paid to the clerk
270 of court.
271 Section 7. Section 721.85, Florida Statutes, is amended to
272 read:
273 721.85 Service to notice address or on registered agent.—
274 (1) Service of process for a foreclosure proceeding
275 involving a timeshare interest estate may be made by any means
276 recognized by law. In addition, substituted service on an
277 obligor a party who has appointed a registered agent under s.
278 721.84 may be made on such registered agent at the registered
279 office. Also, when using s. 48.194 where in rem or quasi in rem
280 relief only is sought, such service of process provisions are
281 modified in connection with a foreclosure proceeding against a
282 timeshare interest estate to provide that:
283 (a) Such service of process may be made on any person
284 whether the person is located inside or outside this state, by
285 certified mail, or registered mail, or permitted delivery
286 service, return receipt requested, addressed to the person to be
287 served at the notice address, or on the person’s party’s
288 registered agent duly appointed under s. 721.84, at the
289 registered office; and
290 (b) Service shall be considered obtained upon the signing
291 of the return receipt by any person at the notice address, or by
292 the registered agent.
293 (2) The current owner and the mortgagor of a timeshare
294 interest estate must promptly notify the owners’ association and
295 the mortgagee of any change of address.
296 (3) Substituted notice under s. 721.855 or s. 721.856 for
297 any party who has appointed a registered agent under s. 721.84
298 may be made on such registered agent at the registered office.
299 Section 8. Section 721.855, Florida Statutes, is created to
300 read:
301 721.855 Procedure for the trustee foreclosure of assessment
302 liens.—The provisions of this section establish a trustee
303 foreclosure procedure for assessment liens.
304 (1) APPOINTMENT OF TRUSTEE.—
305 (a) A trustee or a substitute trustee may be appointed by a
306 lienholder at any time by recording a notice of appointment of
307 trustee or notice of substitution of trustee in the official
308 records of the county or counties in which the timeshare
309 interest is located. A lienholder may appoint multiple trustees
310 in a single appointment, and any appointed trustee may be used
311 by the lienholder regarding the trustee foreclosure of any
312 assessment lien under any timeshare plan for which the trustee
313 is appointed.
314 (b) The recorded notice of appointment of trustee or notice
315 of substitution of trustee shall contain the name and address of
316 the trustee or substitute trustee, the name and address of the
317 lienholder, and the name and address of the timeshare plan.
318 (2) INITIATING THE USE OF A TRUSTEE FORECLOSURE PROCEDURE.—
319 (a) Before initiating the trustee foreclosure procedure
320 against any timeshare interest in a given timeshare plan, the
321 managing entity shall inform owners of timeshare interests in
322 the timeshare plan in writing that the managing entity has the
323 right to elect to use the trustee foreclosure procedure with
324 respect to foreclosure of assessment liens as established in
325 this section. The managing entity shall be deemed to have
326 complied with the requirements of this paragraph if the owners
327 of timeshare interests in the given timeshare plan are informed
328 by mail sent to each owner’s notice address, in the notice of an
329 annual or special meeting of the owners, by posting on the
330 website of the applicable timeshare plan, or by any owner
331 communication used by the managing entity.
332 (b) Before initiating the trustee foreclosure procedure
333 against any timeshare interest, a claim of lien against the
334 timeshare interest shall be recorded under s. 721.16 or, if
335 applicable, s. 718.116 or s. 719.108, and the notice of the
336 intent to file a lien shall be given under s. 718.121 for
337 timeshare condominiums and s. 719.108 for timeshare
338 cooperatives.
339 (c)1. In order to initiate the trustee foreclosure
340 procedure against a timeshare interest, the lienholder shall
341 deliver an affidavit to the trustee that identifies the obligor,
342 the notice address of the obligor, the timeshare interest, the
343 date that the notice of the intent to file a lien was given, if
344 applicable, the official records book and page number where the
345 claim of lien is recorded, and the name and notice address of
346 any junior interestholder. The affidavit shall be accompanied by
347 a title search of the timeshare interest identifying any junior
348 interestholders of record, and the effective date of the title
349 search must be a date that is within 60 calendar days before the
350 date of the affidavit.
351 2. The affidavit shall also state the facts that establish
352 that the obligor has defaulted in the obligation to make a
353 payment under a specified provision of the timeshare instrument
354 or applicable law.
355 3. The affidavit shall also specify the amounts secured by
356 the lien as of the date of the affidavit and a per diem amount
357 to account for further accrual of the amounts secured by the
358 lien.
359 (3) OBLIGOR’S RIGHTS.—
360 (a) The obligor may object to the lienholder’s use of the
361 trustee foreclosure procedure for a specific default any time
362 before the sale of the timeshare interest under subsection (7)
363 by delivering a written objection to the trustee using the
364 objection form provided for in subsection (5). If the trustee
365 receives the written objection from the obligor, the trustee may
366 not proceed with the trustee foreclosure procedure as to the
367 default specified in the notice of default and intent to
368 foreclose under subsection (5), and the lienholder may proceed
369 thereafter only with a judicial foreclosure action as to that
370 specified default.
371 (b) At any time before the trustee issues the certificate
372 of sale under paragraph (7)(f), the obligor may cure the default
373 and redeem the timeshare interest by paying to the trustee the
374 amounts secured by the lien in cash or in certified funds. From
375 the time the trustee issues the certificate of sale, there is no
376 right of redemption.
377 (4) CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A
378 trustee may sell an encumbered timeshare interest foreclosed
379 under this section if:
380 (a) The trustee has received the affidavit from the
381 lienholder under paragraph (2)(c);
382 (b) The trustee has not received a written objection to the
383 use of the trustee foreclosure procedure under paragraph (3)(a)
384 and the timeshare interest was not redeemed under paragraph
385 (3)(b);
386 (c) There is no lis pendens recorded and pending against
387 the same timeshare interest and the trustee has not been served
388 notice of the filing of any action to enjoin the trustee
389 foreclosure sale;
390 (d) The trustee has provided written notice of default and
391 intent to foreclose as required by subsection (5) and a period
392 of at least 30 calendar days has elapsed after such notice is
393 deemed perfected under subsection (5); and
394 (e) The notice of sale required by subsection (6) has been
395 recorded in the official records of the county or counties in
396 which the timeshare interest is located.
397 (5) NOTICE OF DEFAULT AND INTENT TO FORECLOSE.—
398 (a) In any foreclosure proceeding under this section, the
399 trustee is required to notify the obligor of the proceeding by
400 sending the obligor a written notice of default and intent to
401 foreclose to the notice address of the obligor by certified
402 mail, registered mail, or permitted delivery service, return
403 receipt requested, and by first-class mail or permitted delivery
404 service, postage prepaid, as follows:
405 1. The notice of default and intent to foreclose shall
406 identify the obligor, the notice address of the obligor, the
407 legal description of the timeshare interest, the nature of the
408 default, the amounts secured by the lien, and a per diem amount
409 to account for further accrual of the amounts secured by the
410 lien and shall state the method by which the obligor may cure
411 the default, including the period of time following the date of
412 the notice of default and intent to foreclose within which the
413 obligor may cure the default.
414 2. The notice of default and intent to foreclose shall
415 include an objection form with which the obligor can object to
416 the use of the trustee foreclosure procedure by signing and
417 returning the objection form to the trustee. The objection form
418 shall identify the obligor, the notice address of the obligor,
419 the timeshare interest, and the return address of the trustee
420 and shall state: “The undersigned obligor exercises the
421 obligor’s right to object to the use of the trustee foreclosure
422 procedure contained in section 721.855, Florida Statutes.”
423 3. The notice of default and intent to foreclose shall also
424 contain a statement in substantially the following form:
425
426 If you fail to cure the default as set forth in this
427 notice or take other appropriate action with regard to
428 this foreclosure matter, you risk losing ownership of
429 your timeshare interest through the trustee
430 foreclosure procedure established in section 721.855,
431 Florida Statutes. You may choose to sign and send to
432 the trustee the enclosed objection form, exercising
433 your right to object to the use of the trustee
434 foreclosure procedure. Upon the trustee’s receipt of
435 your signed objection form, the foreclosure of the
436 lien with respect to the default specified in this
437 notice shall be subject to the judicial foreclosure
438 procedure only. You have the right to cure your
439 default in the manner set forth in this notice at any
440 time before the trustee’s sale of your timeshare
441 interest. If you do not object to the use of the
442 trustee foreclosure procedure, you will not be subject
443 to a deficiency judgment even if the proceeds from the
444 sale of your timeshare interest are insufficient to
445 offset the amounts secured by the lien.
446
447 4. The trustee shall also mail a copy of the notice of
448 default and intent to foreclose, without the objection form, to
449 the notice address of any junior interestholder by certified
450 mail, registered mail, or permitted delivery service, return
451 receipt requested, and by first-class mail or permitted delivery
452 service, postage prepaid.
453 5. Notice under this paragraph is considered perfected upon
454 the trustee receiving the return receipt bearing the signature
455 of the obligor or junior interestholder, as applicable, within
456 30 calendar days after the trustee sent the notice under this
457 paragraph. Notice under this paragraph is not perfected if the
458 notice is returned as undeliverable within 30 calendar days
459 after the trustee sent the notice, if the trustee cannot
460 ascertain from the receipt that the obligor or junior
461 interestholder, as applicable, is the person who signed the
462 receipt, or if the receipt from the obligor or junior
463 interestholder, as applicable, is returned or refused within 30
464 calendar days after the trustee sent the notice.
465 (b) If the notice required by paragraph (a) is returned as
466 undeliverable within 30 calendar days after the trustee sent the
467 notice, the trustee shall perform a diligent search and inquiry
468 to obtain a different address for the obligor or junior
469 interestholder. For purposes of this paragraph, any address
470 known and used by the lienholder for sending regular mailings or
471 other communications from the lienholder to the obligor or
472 junior interestholder, as applicable, shall be included with
473 other addresses produced from the diligent search and inquiry,
474 if any.
475 1. If the trustee’s diligent search and inquiry produces an
476 address different from the notice address, the trustee shall
477 mail a copy of the notice by certified mail, registered mail, or
478 permitted delivery service, return receipt requested, and by
479 first-class mail or permitted delivery service, postage prepaid
480 to the new address. Notice under this subparagraph is considered
481 perfected upon the trustee receiving the return receipt bearing
482 the signature of the obligor or junior interestholder, as
483 applicable, within 30 calendar days after the trustee sent the
484 notice under this paragraph. Notice under this subparagraph is
485 not perfected if the trustee cannot ascertain from the receipt
486 that the obligor or junior interestholder, as applicable, is the
487 person who signed the receipt or the receipt from the obligor or
488 junior interestholder, as applicable, is returned refused.
489 Unless the trustee perfects notice under this subparagraph, the
490 trustee shall perfect service in the manner set forth in
491 paragraph (c).
492 2. If the trustee’s diligent search and inquiry does not
493 locate a different address for the obligor or junior
494 interestholder, as applicable, the trustee may perfect notice
495 against that person under paragraph (c).
496 (c) If the notice is not perfected under subparagraph
497 (a)5., and such notice was not returned as undeliverable, or if
498 the notice was not perfected under subparagraph (b)1. or
499 subparagraph (b)2., the trustee may perfect notice by
500 publication in a newspaper of general circulation in the county
501 or counties in which the timeshare interest is located. The
502 notice shall appear at least once a week for 2 consecutive
503 weeks. The trustee may group an unlimited number of notices in
504 the same publication, provided that all of the notices pertain
505 to the same timeshare plan. Notice under this paragraph is
506 considered perfected upon publication as required in this
507 paragraph.
508 (d) If notice is perfected under subparagraph (a)5., the
509 trustee shall execute an affidavit in recordable form setting
510 forth the manner in which notice was perfected and attach the
511 affidavit to the certificate of compliance set forth in
512 subsection (9). The affidavit shall state the nature of the
513 notice, the date on which the notice was mailed, the name and
514 address on the envelope containing the notice, the manner in
515 which the notice was mailed, and the basis for that knowledge.
516 (e) If notice is perfected under subparagraph (b)1., the
517 trustee shall execute an affidavit in recordable form setting
518 forth the manner in which notice was perfected and attach the
519 affidavit to the certificate of compliance set forth in
520 subsection (9). The affidavit shall state the nature of the
521 notice, the dates on which the notice was mailed, the name and
522 addresses on the envelopes containing the notice, the manner in
523 which the notices were mailed, the fact that a signed receipt
524 from the certified mail, registered mail, or permitted delivery
525 service was not timely received, and the name and address on the
526 envelopes containing the notice.
527 (f) If notice is perfected under paragraph (c), the trustee
528 shall execute an affidavit in recordable form setting forth the
529 manner in which notice was perfected and attach the affidavit to
530 the certificate of compliance set forth in subsection (9). The
531 affidavit shall state the nature of the notice, the date on
532 which the notice was mailed, the name and address on the
533 envelope containing the notice, the manner in which the notice
534 was mailed, the fact that a signed receipt from the certified or
535 registered mail or the permitted delivery service was not timely
536 received, the date on which a copy of the notice was mailed
537 again by first-class mail with the return address of the trustee
538 on the envelope, and the name and address on the envelope
539 containing the notice. The envelopes from the attempts to mail
540 notice, if available, shall also be attached to the affidavit.
541 (g) If notice is perfected by publication under paragraph
542 (d), the trustee shall execute an affidavit in recordable form
543 setting forth the manner in which notice was perfected and
544 attach the affidavit to the certificate of compliance set forth
545 in subsection (7). The affidavit shall include all the
546 information contained in either paragraph (d) or paragraph (e),
547 as applicable, shall state that the notice was perfected by
548 publication after diligent search and inquiry was made for the
549 current address for the person, and shall include a statement
550 that notice was perfected by publication, and shall set forth
551 the information required by s. 49.041 in the case of a natural
552 person, or s. 49.051 in the case of a corporation, whichever is
553 applicable. No other action of the trustee is necessary to
554 perfect notice.
555 (6) NOTICE OF SALE.—
556 (a) The notice of sale shall set forth:
557 1. The name and notice addresses of the obligor and any
558 junior interestholder.
559 2. The legal description of the timeshare interest.
560 3. The name and address of the trustee.
561 4. A description of the default that is the basis for the
562 foreclosure.
563 5. The official records book and page numbers where the
564 claim of lien is recorded.
565 6. The amounts secured by the lien and a per diem amount to
566 account for further accrual of the amounts secured by the lien.
567 7. The date, location, and starting time of the trustee’s
568 sale.
569 8. The right of and the method by which the obligor may
570 cure the default or the right of any junior interestholder to
571 redeem its interest up to the date the trustee issues the
572 certificate of sale in accordance with paragraph (8)(f).
573 (b) The trustee shall send a copy of the notice of sale
574 within 3 business days following the date it is submitted for
575 recording, by first-class mail or permitted delivery service,
576 postage prepaid, to the notice addresses of the obligor and any
577 junior interestholder.
578 (c) Subsequent to the date of recording of the notice of
579 sale, no notice is required to be given to any person claiming
580 an interest in the timeshare interest except as provided in this
581 section. The recording of the notice of sale has the same force
582 and effect as the filing of a lis pendens in a judicial
583 proceeding under s. 48.23.
584 (d)1. The trustee shall publish the notice of sale in a
585 newspaper of general circulation in the county or counties in
586 which the timeshare interest is located at least once a week for
587 2 consecutive weeks before the date of the sale. The last
588 publication shall occur at least 5 calendar days before the
589 sale.
590 2. The trustee may group an unlimited number of notices of
591 sale in the same publication, provided that all of the notices
592 of sale pertain to the same timeshare plan.
593 (7) MANNER OF SALE.—
594 (a) The sale of a timeshare interest by the trustee in a
595 public auction shall be held in the county in which the
596 timeshare interest is located, on the date, location, and
597 starting time designated in the notice of sale, which shall be
598 after 9 a.m. but before 4 p.m. on a business day not less than
599 30 calendar days after the recording of the notice of sale. The
600 trustee’s sale may occur online at a specific website on the
601 Internet or in any other manner used by the clerk of the court
602 for a judicial foreclosure sales procedure in the county or
603 counties in which the timeshare interest is located.
604 (b) The trustee shall conduct the sale and act as the
605 auctioneer.
606 (c) The lienholder and any person other than the trustee
607 may bid at the sale. In lieu of participating in the sale, the
608 lienholder may send the trustee written bidding instructions
609 that the trustee shall announce as appropriate during the sale.
610 (d) The trustee may postpone the sale from time to time. In
611 such case, notice of postponement must be given by the trustee
612 at the date, time, and location contained in the notice of sale.
613 The notice of sale for the postponed sale shall be mailed under
614 paragraph (6)(b), recorded under paragraph (4)(e), and published
615 pursuant to paragraph (6)(d). The effective date of the initial
616 notice of sale under paragraph (6)(b) is not affected by a
617 postponed sale.
618 (e) The highest bidder of the timeshare interest shall pay
619 the price bid to the trustee in cash or certified funds on the
620 day of the sale. If the lienholder is the highest bidder, the
621 lienholder shall receive a credit up to the amount set forth in
622 the notice of sale under subparagraph (6)(a)6.
623 (f) On the date of the sale the trustee shall issue to the
624 highest bidder a certificate of sale stating that a foreclosure
625 conforming to the requirements of this section has occurred,
626 including the time, location, and date of the sale, that the
627 timeshare interest was sold, the amounts secured by the lien,
628 and the amount of the highest bid. A copy of the certificate of
629 sale shall be mailed by certified mail, registered mail, or
630 permitted delivery service, return receipt requested, to all
631 persons entitled to receive a notice of sale under subsection
632 (6).
633 (g) Before a sale conducted under this subsection (7), a
634 junior interestholder may pursue adjudication by court, by
635 interpleader, or otherwise respecting any matter that is
636 disputed by the junior interestholder.
637 (8) EFFECT OF TRUSTEE’S SALE.—
638 (a) A sale conducted under subsection (7) forecloses and
639 terminates all interests of any person to whom notice is given
640 under paragraph (4)(d) and under paragraph (6)(b), and of any
641 other person claiming by, through, or under any such person, in
642 the affected timeshare interest. A failure to give notice to any
643 person entitled to notice does not affect the validity of the
644 sale as to the interests of any person properly notified. A
645 person entitled to notice but not given notice has the rights of
646 a person not made a defendant in a judicial foreclosure.
647 (b) On the issuance of a certificate of sale under
648 paragraph (7)(f), all rights of redemption that have been
649 foreclosed under this section shall terminate.
650 (c) A sale conducted under subsection (7) releases the
651 obligor’s liability for all amounts secured by the lien. The
652 lienholder has no right to any deficiency judgment against the
653 obligor after a sale of the obligor’s timeshare interest under
654 this section.
655 (d) The issuance and recording of the trustee’s deed is
656 presumed valid and may be relied upon by third parties without
657 actual knowledge of irregularities in the foreclosure
658 proceedings. If for any reason there is an irregularity in the
659 foreclosure proceedings, a purchaser becomes subrogated to all
660 the rights of the lienholder to the indebtedness that it secured
661 to the extent necessary to reforeclose the assessment lien in
662 order to correct the irregularity, and becomes entitled to an
663 action de novo for the foreclosure of such assessment lien. Any
664 subsequent reforeclosure required to correct an irregularity may
665 be conducted under this section.
666 (9) TRUSTEE’S CERTIFICATE OF COMPLIANCE.—
667 (a) Within 10 calendar days after the trustee conducts a
668 sale, the trustee shall execute and acknowledge a certificate of
669 compliance which shall:
670 1. Confirm delivery of the notice of default and intent to
671 foreclose and attach the affidavit required under subsection
672 (5).
673 2. State that the default was not cured, that the trustee
674 did not receive any written objection under paragraph (3)(a),
675 and that the timeshare interest was not redeemed under paragraph
676 (3)(b).
677 3. Confirm that the notice of sale was published as
678 required under paragraph (6)(d) and attach an affidavit of
679 publication for the notice of sale.
680 4. Confirm that the notice of sale was mailed under
681 paragraph (6)(b) together with a list of the parties to whom the
682 notice of sale was mailed.
683 (b) In furtherance of the execution the certificate of
684 compliance required under this subsection, the trustee is
685 entitled to rely upon an affidavit or certification from the
686 lienholder as to the facts and circumstances of default and
687 failure to cure the default.
688 (10) TRUSTEE’S DEED.—
689 (a) The trustee’s deed shall include the name and address
690 of the trustee, the name and address of the highest bidder, the
691 name of the former owner, a legal description of the timeshare
692 interest, and the name and address of the preparer of the
693 trustee’s deed. The trustee’s deed shall recite that the
694 certificate of compliance was recorded, and shall contain no
695 warranties of title from the trustee. The certificate of
696 compliance shall be attached as an exhibit to the trustee’s
697 deed.
698 (b) Ten calendar days after a sale, absent the prior filing
699 and service on the trustee of a judicial action to enjoin
700 issuance of the trustee’s deed to the timeshare interest, the
701 trustee shall:
702 1. Issue a trustee’s deed to the highest bidder.
703 2. Record the trustee’s deed in the official records of the
704 county or counties in which the timeshare interest is located.
705 (c)1. The certificate of compliance and trustee’s deed
706 together are presumptive evidence of the truth of the matters
707 set forth in them, and no action to set aside the sale and void
708 the trustee’s deed may be filed or otherwise pursued against any
709 person acquiring the timeshare interest for value.
710 2. The trustee’s deed conveys to the highest bidder all
711 rights, title, and interest in the timeshare interest that the
712 former owner had, or had the power to convey, at the time of the
713 recording of the claim of lien, together with all rights, title,
714 and interest that the former owner or his or her successors in
715 interest acquired after the recording of the claim of lien.
716 3. The issuance and recording of a trustee’s deed shall
717 have the same force and effect as the issuance and recording of
718 a certificate of title by the clerk of the court in a judicial
719 foreclosure action.
720 (11) DISPOSITION OF PROCEEDS OF SALE.—
721 (a) The trustee shall apply the proceeds of the sale as
722 follows:
723 1. To the expenses of the sale, including compensation of
724 the trustee.
725 2. To the amount owed and set forth in the notice as
726 required in subparagraph (6)(a)6.
727 3. If there are junior interestholders, the trustee may
728 file an action in interpleader, pay the surplus to a court of
729 competent jurisdiction, name the competing junior
730 interestholders, and ask the court to determine the proper
731 distribution of the surplus. In any interpleader action, the
732 trustee shall recover reasonable attorney’s fees and costs.
733 4. If there are no junior interestholders, or if all junior
734 interestholders have been paid, any surplus shall be paid to the
735 former owner. If the trustee is unable to locate the former
736 owner 1 year after the sale, the surplus, if any, shall be
737 deposited with the Chief Financial Officer under chapter 717.
738 (b) In disposing of the proceeds of the sale, the trustee
739 may rely on the information provided in the affidavit of the
740 lienholder under paragraph (2)(c) and, in the event of a dispute
741 or uncertainty over such claims, the trustee has the discretion
742 to submit the matter to adjudication by court, by interpleader,
743 or otherwise and shall recover reasonable attorney’s fees and
744 costs.
745 (12) TRUSTEE FORECLOSURE ACTIONS.—The trustee foreclosure
746 procedure established in this section does not impair or
747 otherwise affect the lienholder’s continuing right to bring a
748 judicial foreclosure action, in lieu of using the trustee
749 foreclosure procedure, with respect to any assessment lien.
750 (13) APPLICATION.—This section applies to any default
751 giving rise to the imposition of an assessment lien which occurs
752 after the effective date of this section. An amendment to a
753 timeshare instrument is not required to permit a managing entity
754 lienholder to use the trustee foreclosure procedures of this
755 section. If a timeshare instrument contains any provision that
756 prevents the use of the trustee foreclosure procedures, an
757 amendment to the timeshare instrument permitting the use of the
758 trustee foreclosure procedure set forth in this section may be
759 adopted by a majority of those present and voting at a duly
760 called meeting of the owners’ association at which at least 15
761 percent of the voting interests are present in person or by
762 proxy.
763 (14) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
764 PROCEDURE.—An action for actual damages for a material violation
765 of this section may be brought by an obligor against the
766 lienholder for the failure to follow the trustee foreclosure
767 procedure contained in this section.
768 Section 9. Section 721.856, Florida Statutes, is created to
769 read:
770 721.856 Procedure for the trustee foreclosure of mortgage
771 liens.—The provisions of this section establish a trustee
772 foreclosure procedure for mortgage liens.
773 (1) APPOINTMENT OF TRUSTEE.—
774 (a) A trustee or a substitute trustee may be appointed by a
775 lienholder at any time by recording a notice of appointment of
776 trustee or notice of substitution of trustee in the official
777 records of the county or counties in which the timeshare
778 interest is located. A lienholder may appoint multiple trustees
779 in a single appointment, and any appointed trustee may be used
780 by the lienholder regarding the trustee foreclosure of any
781 mortgage lien.
782 (b) The recorded notice of appointment of trustee or notice
783 of substitution of trustee shall contain the name and address of
784 the trustee or substitute trustee, the name and address of the
785 lienholder, and the name and address of the timeshare plan.
786 (2) INITIATING THE TRUSTEE FORECLOSURE OF MORTGAGE LIENS.—
787 (a) Before initiating the trustee foreclosure against a
788 timeshare interest, the mortgage, or an amendment to a mortgage
789 executed by the obligor before the effective date of this
790 section, must contain a statement in substantially the following
791 form:
792
793 If the mortgagor fails to make timely payments under
794 the obligation secured by this mortgage, or is
795 otherwise deemed in uncured default of this mortgage,
796 the lien against the mortgagor’s timeshare interest
797 created by this mortgage may be foreclosed in
798 accordance with either a judicial foreclosure
799 procedure or a trustee foreclosure procedure and may
800 result in the loss of your timeshare interest. If the
801 mortgagee initiates a trustee foreclosure procedure,
802 the mortgagor shall have the option to object and the
803 mortgagee may proceed only by filing a judicial
804 foreclosure action.
805
806 (b)1. In order to initiate a trustee foreclosure procedure
807 against a timeshare interest, the lienholder shall deliver an
808 affidavit to the trustee that identifies the obligor, the notice
809 address of the obligor, the timeshare interest, the official
810 records book and page number where the mortgage is recorded, and
811 the name and notice address of any junior interestholder. The
812 affidavit shall be accompanied by a title search of the
813 timeshare interest identifying any junior interestholders of
814 record, and the effective date of the title search must be a
815 date that is within 60 calendar days before the date of the
816 affidavit.
817 2. The affidavit shall also state the facts that establish
818 that the obligor has defaulted in the obligation to make a
819 payment under a specified provision of the mortgage or is
820 otherwise deemed in uncured default under a specified provision
821 of the mortgage.
822 3. The affidavit shall also specify the amounts secured by
823 the lien as of the date of the affidavit and a per diem amount
824 to account for further accrual of the amounts secured by the
825 lien.
826 (3) OBLIGOR’S RIGHTS.—
827 (a) The obligor may object to the lienholder’s use of the
828 trustee’s foreclosure procedure for a specific default any time
829 before the sale of the timeshare interest under subsection (8)
830 by delivering a written objection to the trustee using the
831 objection form provided for in subsection (5). If the trustee
832 receives the written objection from the obligor, the trustee may
833 not proceed with the trustee foreclosure procedure as to the
834 default specified in the notice of default and intent to
835 foreclose under subsection (5), and the lienholder may proceed
836 thereafter only with a judicial foreclosure action as to that
837 specified default.
838 (b) At any time before the trustee issues the certificate
839 of sale under paragraph (7)(f), the obligor may cure the default
840 and redeem the timeshare interest by paying the amounts secured
841 by the lien in cash or certified funds to the trustee.
842 Otherwise, once the trustee issues the certificate of sale,
843 there is no right of redemption.
844 (4) CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A
845 trustee may sell an encumbered timeshare interest foreclosed
846 under this section if:
847 (a) The trustee has received the affidavit from the
848 lienholder under paragraph (2)(c);
849 (b) The trustee has not received a written objection to the
850 use of the trustee foreclosure procedure under paragraph (3)(a)
851 and the timeshare interest was not redeemed under paragraph
852 (3)(b);
853 (c) There is no lis pendens recorded and pending against
854 the same timeshare interest, and the trustee has not been served
855 notice of the filing of any action to enjoin the trustee
856 foreclosure sale;
857 (d) The trustee is in possession of the original promissory
858 note executed by the mortgagor and secured by the mortgage lien;
859 (e) The trustee has provided written notice of default and
860 intent to foreclose as required under subsection (5) and a
861 period of at least 30 calendar days has elapsed after such
862 notice is deemed perfected under subsection (5); and
863 (f) The notice of sale required by subsection (6) has been
864 recorded in the official records of the county in which the
865 mortgage was recorded.
866 (5) NOTICE OF DEFAULT AND INTENT TO FORECLOSE.—
867 (a) In any foreclosure proceeding under this section, the
868 trustee is required to notify the obligor of the proceeding by
869 sending the obligor a written notice of default and intent to
870 foreclose to the notice address of the obligor by certified
871 mail, registered mail, or permitted delivery service, return
872 receipt requested, and by first-class mail or permitted service,
873 postage prepaid, as follows:
874 1. The notice of default and intent to foreclose shall
875 identify the obligor, the notice address of the obligor, the
876 legal description of the timeshare interest, the nature of the
877 default, the amounts secured by the lien, and a per diem amount
878 to account for further accrual of the amounts secured by the
879 lien and shall state the method by which the obligor may cure
880 the default, including the period of time following the date of
881 the notice of default and intent to foreclose within which the
882 obligor may cure the default.
883 2. The notice of default and intent to foreclose shall
884 include an objection form with which the obligor can object to
885 the use of the trustee foreclosure procedure by signing and
886 returning the objection form to the trustee. The objection form
887 shall identify the obligor, the notice address of the obligor,
888 the timeshare interest, and the return address of the trustee
889 and shall state: “The undersigned obligor exercises the
890 obligor’s right to object to the use of the trustee foreclosure
891 procedure contained in section 721.856, Florida Statutes.”
892 3. The notice of default and intent to foreclose shall also
893 contain a statement in substantially the following form:
894
895 If you fail to cure the default as set forth in this
896 notice or take other appropriate action with regard to
897 this foreclosure matter, you risk losing ownership of
898 your timeshare interest through the trustee
899 foreclosure procedure established in section 721.856,
900 Florida Statutes. You may choose to sign and send to
901 the trustee the enclosed objection form, exercising
902 your right to object to the use of the trustee
903 foreclosure procedure. Upon the trustee’s receipt of
904 your signed objection form, the foreclosure of the
905 lien with respect to the default specified in this
906 notice shall be subject to the judicial foreclosure
907 procedure only. You have the right to cure your
908 default in the manner set forth in this notice at any
909 time before the trustee’s sale of your timeshare
910 interest. If you do not object to the use of the
911 trustee foreclosure procedure, you will not be subject
912 to a deficiency judgment even if the proceeds from the
913 sale of your timeshare interest are insufficient to
914 offset the amounts secured by the lien.
915
916 4. The trustee shall also mail a copy of the notice of
917 default and intent to foreclose, without the objection form, to
918 the notice address of any junior interestholder by certified
919 mail, registered mail, or permitted delivery service, return
920 receipt requested, and by first-class mail or permitted delivery
921 service, postage prepaid.
922 5. Notice under this paragraph is considered perfected upon
923 the trustee receiving the return receipt bearing the signature
924 of the obligor or junior interestholder, as applicable, within
925 30 calendar days after the trustee sent the notice under this
926 paragraph. Notice under this paragraph is not perfected if the
927 notice is returned as undeliverable within 30 calendar days
928 after the trustee sent the notice, if the trustee cannot
929 ascertain from the receipt that the obligor or junior
930 interestholder, as applicable, is the person who signed the
931 receipt, or if the receipt from the obligor or junior
932 interestholder, as applicable, is returned or refused within 30
933 calendar days after the trustee sent the notice.
934 (b) If the notice required by paragraph (a) is returned as
935 undeliverable within 30 calendar days after the trustee sent the
936 notice, the trustee shall perform a diligent search and inquiry
937 to obtain a different address for the obligor or junior
938 interestholder. For purposes of this paragraph, any address
939 known and used by the lienholder for sending regular mailings or
940 other communications from the lienholder to the obligor or
941 junior interestholder, as applicable, shall be included with
942 other addresses produced from the diligent search and inquiry,
943 if any.
944 1. If the trustee’s diligent search and inquiry produces an
945 address different from the notice address, the trustee shall
946 mail a copy of the notice by certified mail, registered mail, or
947 permitted delivery service, return receipt requested, and by
948 first-class mail or permitted delivery service, postage prepaid
949 to the new address. Notice under this subparagraph is considered
950 perfected upon the trustee receiving the return receipt bearing
951 the signature of the obligor or junior interestholder, as
952 applicable, within 30 calendar days after the trustee sent the
953 notice under this paragraph. Notice under this subparagraph is
954 not perfected if the trustee cannot ascertain from the receipt
955 that the obligor or junior interestholder, as applicable, is the
956 person who signed the receipt or the receipt from the obligor or
957 junior interestholder, as applicable, is returned refused.
958 Unless the trustee perfects notice under this subparagraph, the
959 trustee shall perfect service in the manner set forth in
960 paragraph (c).
961 2. If the trustee’s diligent search and inquiry does not
962 locate a different address for the obligor or junior
963 interestholder, as applicable, the trustee may perfect notice
964 against that person under paragraph (c).
965 (c) If the notice is not perfected under subparagraph
966 (a)5., and such notice was not returned as undeliverable, or if
967 the notice was not perfected under subparagraph (b)1. or
968 subparagraph (b)2., the trustee may perfect notice by
969 publication in a newspaper of general circulation in the county
970 or counties in which the timeshare interest is located. The
971 notice shall appear at least once a week for 2 consecutive
972 weeks. The trustee may group an unlimited number of notices in
973 the same publication, provided that all of the notices pertain
974 to the same timeshare plan. Notice under this paragraph is
975 considered perfected upon publication as required in this
976 paragraph.
977 (d) If notice is perfected under subparagraph (a)5., the
978 trustee shall execute an affidavit in recordable form setting
979 forth the manner in which notice was perfected and attach the
980 affidavit to the certificate of compliance set forth in
981 subsection (9). The affidavit shall state the nature of the
982 notice, the date on which the notice was mailed, the name and
983 address on the envelope containing the notice, the manner in
984 which the notice was mailed, and the basis for that knowledge.
985 (e) If notice is perfected under subparagraph (b)1., the
986 trustee shall execute an affidavit in recordable form setting
987 forth the manner in which notice was perfected and attach the
988 affidavit to the certificate of compliance set forth in
989 subsection (9). The affidavit shall state the nature of the
990 notice, the dates on which the notice was mailed, the name and
991 addresses on the envelopes containing the notice, the manner in
992 which the notices were mailed, the fact that a signed receipt
993 from the certified mail, registered mail, or permitted delivery
994 service was not timely received, and the name and address on the
995 envelopes containing the notice.
996 (f) If notice is perfected under paragraph (c), the trustee
997 shall execute an affidavit in recordable form setting forth the
998 manner in which notice was perfected and attach the affidavit to
999 the certificate of compliance set forth in subsection (9). The
1000 affidavit shall include all the information contained in either
1001 paragraph (d) or paragraph (e), as applicable, shall state that
1002 the notice was perfected by publication after diligent search
1003 and inquiry was made for the current address for the person,
1004 shall include a statement that notice was perfected by
1005 publication, and shall set forth the information required by s.
1006 49.041 in the case of a natural person, or s. 49.051 in the case
1007 of a corporation, whichever is applicable. No other action of
1008 the trustee is necessary to perfect notice.
1009 (6) NOTICE OF SALE.—
1010 (a) The notice of sale shall set forth:
1011 1. The name and notice addresses of the obligor and any
1012 junior interestholder.
1013 2. The legal description of the timeshare interest.
1014 3. The name and address of the trustee.
1015 4. A description of the default that is the basis for the
1016 foreclosure.
1017 5. The official records book and page numbers where the
1018 mortgage is recorded.
1019 6. The amounts secured by the lien and a per diem amount to
1020 account for further accrual of the amounts secured by the lien.
1021 7. The date, location, and starting time of the trustee’s
1022 sale.
1023 8. The right of and the method by which the obligor may
1024 cure the default or the right of any junior interestholder to
1025 redeem its interest up to the date the trustee issues the
1026 certificate of sale in accordance with paragraph (8)(f).
1027 (b) The trustee shall send a copy of the notice of sale
1028 within 3 business days following the date it is submitted for
1029 recording, by first-class mail, postage prepaid, to the notice
1030 addresses of the obligor and any junior interestholder.
1031 (c) Subsequent to the date of recording of the notice of
1032 sale, no notice is required to be given to any person claiming
1033 an interest in the timeshare interest except as provided in this
1034 section. The recording of the notice of sale has the same force
1035 and effect as the filing of a lis pendens in a judicial
1036 proceeding under s. 48.23.
1037 (d)1. The trustee shall publish the notice of sale in a
1038 newspaper of general circulation in the county or counties in
1039 which the timeshare interest is located at least once a week for
1040 two consecutive weeks before the date of the sale. The last
1041 publication shall occur at least 5 calendar days before the
1042 sale.
1043 2. The trustee may group an unlimited number of notices of
1044 sale in the same publication, provided that all of the notices
1045 of sale pertain to the same timeshare plan.
1046 (7) MANNER OF SALE.—
1047 (a) The sale of a timeshare interest by the trustee in a
1048 public auction shall be held in the county in which the
1049 timeshare interest is located, on the date, location, and
1050 starting time designated in the notice of sale, which shall be
1051 after 9 a.m. but before 4 p.m. on a business day not less than
1052 30 calendar days after the recording of the notice of sale. The
1053 trustee’s sale may occur online at a specific website on the
1054 Internet or in any other manner used by the clerk of the court
1055 for a judicial foreclosure sales procedure in the county or
1056 counties in which the timeshare interest is located.
1057 (b) The trustee shall conduct the sale and act as the
1058 auctioneer.
1059 (c) The lienholder and any person other than the trustee
1060 may bid at the sale. In lieu of participating in the sale, the
1061 lienholder may send the trustee written bidding instructions
1062 that the trustee shall announce as appropriate during the sale.
1063 (d) The trustee may postpone the sale from time to time. In
1064 such case, notice of postponement must be given by the trustee
1065 at the date, time, and location contained in the notice of sale.
1066 The notice of sale for the postponed sale shall be mailed under
1067 paragraph (6)(b), recorded under paragraph (4)(f), and published
1068 under paragraph (6)(d). The effective date of the initial notice
1069 of sale for purposes of paragraph (4)(b) is not affected by a
1070 postponed sale.
1071 (e) The highest bidder of the timeshare interest shall pay
1072 the price bid to the trustee in cash or certified funds on the
1073 day of the sale. If the lienholder is the highest bidder, the
1074 lienholder shall receive a credit up to the amount set forth in
1075 the notice of sale as required under subparagraph (6)(a)6.
1076 (f) On the date of the sale and upon receipt of the cash or
1077 certified funds due from the highest bidder, the trustee shall
1078 issue to the highest bidder a certificate of sale stating that a
1079 foreclosure conforming to the requirements of this section has
1080 occurred, including the time, location, and date of the sale,
1081 that the timeshare interest was sold, the amounts secured by the
1082 lien, and the amount of the highest bid. A copy of the
1083 certificate of sale shall be mailed by certified mail,
1084 registered mail, or permitted delivery service, return receipt
1085 requested, to all persons entitled to receive a notice of sale
1086 under subsection (6).
1087 (g) Before a sale conducted under this subsection (7), a
1088 junior interestholder may pursue adjudication by court, by
1089 interpleader, or otherwise respecting any matter that is
1090 disputed by the junior interestholder.
1091 (8) EFFECT OF TRUSTEE’S SALE.—
1092 (a) A sale conducted under subsection (7) forecloses and
1093 terminates all interests of any person to whom notice is given
1094 under paragraph (4)(e) or paragraph (6)(b), and of any other
1095 person claiming by, through, or under any such person, in the
1096 affected timeshare interest. A failure to give notice to any
1097 person entitled to notice does not affect the validity of the
1098 sale as to the interests of any person properly notified. A
1099 person entitled to notice but not given notice has the rights of
1100 a person not made a defendant in a judicial foreclosure.
1101 (b) On the issuance of a certificate of sale under
1102 paragraph (7)(f), all rights of redemption that have been
1103 foreclosed under this section shall terminate.
1104 (c) A sale conducted under subsection (7) releases the
1105 obligor’s liability for all amounts secured by the lien. The
1106 lienholder has no right to any deficiency judgment against the
1107 obligor after a sale of the obligor’s timeshare interest under
1108 this section.
1109 (d) The issuance and recording of the trustee’s deed is
1110 presumed valid and may be relied upon by third parties without
1111 actual knowledge of any irregularities in the foreclosure
1112 proceedings. If for any reason there is an irregularity in the
1113 foreclosure proceedings, a purchaser becomes subrogated to all
1114 the rights of the lienholder to the indebtedness that it secured
1115 to the extent necessary to reforeclose the mortgage lien in
1116 order to correct the irregularity, and becomes entitled to an
1117 action de novo for the foreclosure of such mortgage lien. Any
1118 subsequent reforeclosure required to correct an irregularity may
1119 be conducted under this section.
1120 (9) TRUSTEE’S CERTIFICATE OF COMPLIANCE.—
1121 (a) Within 10 calendar days after the trustee conducts a
1122 sale, the trustee shall execute and acknowledge a certificate of
1123 compliance which shall:
1124 1. Confirm delivery of the notice of default and intent to
1125 foreclose and attach the affidavit required under subsection
1126 (5);
1127 2. State that the default was not cured, that the trustee
1128 did not receive any written objection under paragraph (3)(a),
1129 and that the timeshare interest was not redeemed under paragraph
1130 (3)(b);
1131 3. State that the trustee is in possession of the original
1132 promissory note executed by the mortgagor and secured by the
1133 mortgage lien;
1134 4. Confirm that the notice of sale was published as
1135 required under paragraph (6)(d) and attach an affidavit of
1136 publication for the notice of sale; and
1137 5. Confirm that the notice of sale was mailed under
1138 paragraph (6)(b) together with a list of the parties to whom the
1139 notice of sale was mailed.
1140 (b) In furtherance of the execution and recording of the
1141 certificate of compliance required under this subsection, the
1142 trustee is entitled to rely upon an affidavit or certification
1143 from the lienholder as to the facts and circumstances of default
1144 and failure to cure the default.
1145 (10) TRUSTEE’S DEED.—
1146 (a) The trustee’s deed shall include the name and address
1147 of the trustee, the name and address of the highest bidder, the
1148 name of the former owner, a legal description of the timeshare
1149 interest, and the name and address of the preparer of the
1150 trustee’s deed. The trustee’s deed shall recite that the
1151 certificate of compliance was recorded, and shall contain no
1152 warranties of title from the trustee. The certificate of
1153 compliance shall be attached as an exhibit to the trustee’s
1154 deed.
1155 (b) Ten calendar days after a sale, absent the prior filing
1156 and service on the trustee of a judicial action to enjoin
1157 issuance of the trustee’s deed to the timeshare interest, the
1158 trustee shall:
1159 1. Cancel the original promissory note executed by the
1160 mortgagor and secured by the mortgage lien.
1161 2. Issue a trustee’s deed to the highest bidder.
1162 3. Record the trustee’s deed in the official records of the
1163 county or counties in which the timeshare interest is located.
1164 (c)1. The certificate of compliance and trustee’s deed
1165 together are presumptive evidence of the truth of the matters
1166 set forth in them, and no action to set aside the sale and void
1167 the trustee’s deed may be filed or otherwise pursued against any
1168 person acquiring the timeshare interest for value.
1169 2. The trustee’s deed conveys to the highest bidder all
1170 rights, title, and interest in the timeshare interest that the
1171 former owner had, or had the power to convey together with all
1172 rights, title, and interest that the former owner or his or her
1173 successors in interest acquired after the execution of the
1174 mortgage.
1175 3. The issuance and recording of a trustee’s deed shall
1176 have the same force and effect as the issuance and recording of
1177 a certificate of title by the clerk of the court in a judicial
1178 foreclosure action.
1179 (11) DISPOSITION OF PROCEEDS OF SALE.—
1180 (a) The trustee shall apply the proceeds of the sale as
1181 follows:
1182 1. To the expenses of the sale, including compensation of
1183 the trustee.
1184 2. To the amount owed and set forth in the notice as
1185 required under subparagraph (6)(a)6.
1186 3. If there are junior interestholders, the trustee may
1187 file an action in interpleader, pay the surplus to a court of
1188 competent jurisdiction, name the competing junior
1189 interestholders, and ask the court to determine the proper
1190 distribution of the surplus. In any interpleader action, the
1191 trustee shall recover reasonable attorney’s fees and costs.
1192 4. If there are no junior interestholders, or if all junior
1193 interestholders have been paid, any surplus shall be paid to the
1194 former owner. If the trustee is unable to locate the former
1195 owner 1 year after the sale, the surplus, if any, shall be
1196 deposited with the Chief Financial Officer under chapter 717.
1197 (b) In disposing of the proceeds of the sale, the trustee
1198 may rely on the information provided in the affidavit of the
1199 lienholder under paragraph (2)(c) and, in the event of a dispute
1200 or uncertainty over such claims, the trustee has the discretion
1201 to submit the matter to adjudication by court, by interpleader,
1202 or otherwise and shall recover reasonable attorney’s fees and
1203 costs.
1204 (12) JUDICIAL FORECLOSURE ACTIONS.—The trustee foreclosure
1205 procedure established in this section does not impair or
1206 otherwise affect the lienholder’s continuing right to bring a
1207 judicial foreclosure action, in lieu of using the trustee
1208 foreclosure procedure, with respect to any mortgage lien.
1209 (13) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
1210 PROCEDURE.—An action for actual damages for a material violation
1211 of this section may be brought by an obligor against the
1212 lienholder for the failure to follow the trustee foreclosure
1213 procedure contained in this section.
1214 Section 10. Subsections (1) and (4) of section 721.86,
1215 Florida Statutes, are amended to read:
1216 721.86 Miscellaneous provisions.—
1217 (1) In the event of a conflict between the provisions of
1218 this part and the other provisions of this chapter, chapter 702,
1219 or other applicable law, the provisions of this part shall
1220 prevail. The procedures in this part must be given effect in the
1221 context of any foreclosure proceedings against timeshare
1222 interests estates governed by this chapter, chapter 702, chapter
1223 718, or chapter 719.
1224 (4) In addition to assessment liens and mortgage liens
1225 arising after the effective date of this part, except as
1226 provided in s. 721.855(13), the provisions of this part apply to
1227 all assessment liens and mortgage liens existing prior to the
1228 effective date of this act regarding which a foreclosure
1229 proceeding has not yet commenced.
1230 Section 11. Subsection (2) of section 721.20, Florida
1231 Statutes, is amended to read:
1232 721.20 Licensing requirements; suspension or revocation of
1233 license; exceptions to applicability; collection of advance fees
1234 for listings unlawful.—
1235 (2) Solicitors who engage only in the solicitation of
1236 prospective purchasers and any purchaser who refers no more than
1237 20 people to a developer or managing entity per year or who
1238 otherwise provides testimonials on behalf of a developer or
1239 managing entity are exempt from the provisions of chapter 475.
1240 Section 12. This act shall take effect upon becoming a law.