Florida Senate - 2010                      CS for CS for SB 2358
       
       
       
       By the Committees on Judiciary; and Regulated Industries; and
       Senator Gardiner
       
       
       
       590-04406A-10                                         20102358c2
    1                        A bill to be entitled                      
    2         An act relating to foreclosures; amending s. 721.07,
    3         F.S.; providing lien disclosure requirements for filed
    4         public offering statements for certain timeshare
    5         plans; amending s. 721.13, F.S.; requiring officers,
    6         directors, and agents of a timeshare owners’
    7         association to act in good faith; providing for
    8         damages; providing exceptions; amending s. 721.16,
    9         F.S.; authorizing a managing entity to bring a
   10         judicial action or a trustee procedure to foreclose
   11         certain liens under specified conditions; revising
   12         when a lien is effective; providing a directive to the
   13         Division of Statutory Revision to rename part III of
   14         ch. 721, F.S., to conform to changes made by the act;
   15         amending s. 721.81, F.S.; revising and providing
   16         legislative purposes of part III; amending s. 721.82,
   17         F.S.; revising and providing definitions; amending s.
   18         721.83, F.S., relating to consolidation of foreclosure
   19         actions; clarifying application to judicial
   20         foreclosure actions; amending s. 721.85, F.S.,
   21         relating to service to notice address or on registered
   22         agent; conforming provisions to changes made by the
   23         act; creating s. 721.855, F.S.; establishing
   24         procedures for the trustee foreclosure of assessment
   25         liens; providing for the appointment of a trustee;
   26         providing recording requirements for such liens;
   27         providing procedures for the initiation of a trustee
   28         foreclosure procedure against a timeshare interest;
   29         providing procedures for an obligor’s objection to the
   30         trustee foreclosure procedure; providing conditions to
   31         a trustee’s exercise of power of sale; providing
   32         requirements for a notice of default and intent to
   33         sell; providing requirements for a notice of sale;
   34         providing requirements for the sale by auction of
   35         foreclosed encumbered timeshare interests; providing
   36         requirements for a trustee’s certificate of
   37         compliance; providing for the effect of a trustee’s
   38         sale; providing requirements for a trustee’s deed;
   39         providing for the disposition of proceeds of the sale;
   40         providing that the trustee foreclosure procedure does
   41         not impair or otherwise affect the right to bring
   42         certain actions; providing for application; providing
   43         for actions for failure to follow the trustee
   44         foreclosure procedure; creating s. 721.856, F.S.;
   45         establishing procedures for the trustee foreclosure of
   46         mortgage liens; providing for the appointment of a
   47         trustee; providing recording requirements for such
   48         liens; providing procedures for the initiation of a
   49         trustee foreclosure procedure against a timeshare
   50         interest; providing procedures for an obligor’s
   51         objection to the trustee foreclosure procedure;
   52         providing conditions to a trustee’s exercise of power
   53         of sale; providing requirements for a notice of
   54         default and intent to sell; providing requirements for
   55         a notice of sale; providing requirements for the sale
   56         by auction of foreclosed encumbered timeshare
   57         interests; providing requirements for a trustee’s
   58         certificate of compliance; providing for the effect of
   59         a trustee’s sale; providing requirements for a
   60         trustee’s deed; providing for the disposition of
   61         proceeds of the sale; providing that the trustee
   62         foreclosure procedure does not impair or otherwise
   63         affect the right to bring certain actions; providing
   64         for actions for failure to follow the trustee
   65         foreclosure procedure; amending s. 721.86, F.S.;
   66         providing for priority of application in case of
   67         conflict; conforming terminology to changes made by
   68         the act; amending s. 721.20, F.S.; revising exemptions
   69         from certain licensing requirements; providing an
   70         effective date.
   71  
   72  Be It Enacted by the Legislature of the State of Florida:
   73  
   74         Section 1. Paragraph (jj) is added to subsection (5) of
   75  section 721.07, Florida Statutes, to read:
   76         721.07 Public offering statement.—Prior to offering any
   77  timeshare plan, the developer must submit a filed public
   78  offering statement to the division for approval as prescribed by
   79  s. 721.03, s. 721.55, or this section. Until the division
   80  approves such filing, any contract regarding the sale of that
   81  timeshare plan is subject to cancellation by the purchaser
   82  pursuant to s. 721.10.
   83         (5) Every filed public offering statement for a timeshare
   84  plan which is not a multisite timeshare plan shall contain the
   85  information required by this subsection. The division is
   86  authorized to provide by rule the method by which a developer
   87  must provide such information to the division.
   88         (jj) The following statement in conspicuous type:
   89  
   90         The managing entity has a lien against each timeshare
   91         interest to secure the payment of assessments, ad
   92         valorem assessments, tax assessments, and special
   93         assessments. Your failure to make required payments
   94         may result in the judicial or trustee foreclosure of
   95         an assessment lien and the loss of your timeshare
   96         interest. If the managing entity initiates a trustee
   97         foreclosure procedure, you have the option of
   98         objecting to the use of the trustee foreclosure
   99         procedure and the managing entity may proceed only by
  100         filing a judicial foreclosure action.
  101  
  102         Section 2. Subsection (13) is added to section 721.13,
  103  Florida Statutes, to read:
  104         721.13 Management.—
  105         (13) Notwithstanding any provision of chapter 607, chapter
  106  617, or chapter 718, an officer, director, or agent of an
  107  owners’ association shall discharge his or her duties in good
  108  faith, with the care an ordinarily prudent person in a like
  109  position would exercise under similar circumstances, and in a
  110  manner he or she reasonably believes to be in the interests of
  111  the owners’ association. An officer, director, or agent of an
  112  owners’ association is exempt from liability for monetary
  113  damages in the same manner as provided in s. 617.0834 unless
  114  such officer, director, or agent breached or failed to perform
  115  his or her duties and such breach or failure constitutes a
  116  violation of criminal law as provided in s. 617.0834;
  117  constitutes a transaction from which the officer or director
  118  derived an improper personal benefit, directly or indirectly; or
  119  constitutes recklessness or an act or omission that was in bad
  120  faith, with malicious purpose, or in a manner exhibiting wanton
  121  and willful disregard of human rights, safety, or property.
  122         Section 3. Subsections (2) and (3) of section 721.16,
  123  Florida Statutes, are amended to read:
  124         721.16 Liens for overdue assessments; liens for labor
  125  performed on, or materials furnished to, a timeshare unit.—
  126         (2) The managing entity may bring a judicial an action in
  127  its name to foreclose a lien under subsection (1) in the manner
  128  a mortgage of real property is foreclosed and may also bring an
  129  action to recover a money judgment for the unpaid assessments
  130  without waiving any claim of lien. As an alternative to the
  131  judicial action, the managing entity may initiate a trustee
  132  procedure to foreclose an assessment lien pursuant to s.
  133  721.855.
  134         (3) The lien is effective from the date of recording a
  135  claim of lien in the official public records of the county or
  136  counties in which the timeshare interest is accommodations and
  137  facilities constituting the timeshare plan are located. The
  138  claim of lien must shall state the name of the timeshare plan
  139  and identify the timeshare interest for which the lien is
  140  effective, state the name of the purchaser, state the assessment
  141  amount due, and state the due dates. Notwithstanding any
  142  provision of s. 718.116(5)(a) or s. 719.108(4) to the contrary,
  143  the lien is effective until satisfied or until 5 years have
  144  expired after the date the claim of lien is recorded unless,
  145  within that time, an action to enforce the lien is commenced
  146  pursuant to subsection (2). A claim of lien for assessments may
  147  include only assessments that which are due when the claim is
  148  recorded. A claim of lien must shall be signed and acknowledged
  149  by an officer or agent of the managing entity. Upon full
  150  payment, the person making the payment is entitled to receive a
  151  satisfaction of the lien.
  152         Section 4. The Division of Statutory Revision is requested
  153  to rename part III of chapter 721, Florida Statutes, as
  154  “Foreclosure of Liens on Timeshare Interests.”
  155         Section 5. Section 721.81, Florida Statutes, is amended to
  156  read:
  157         721.81 Legislative purpose.—The purposes of this part are
  158  to:
  159         (1) Recognize that timeshare interests estates are parcels
  160  of real property used for vacation experience rather than for
  161  homestead or investment purposes and that there are numerous
  162  timeshare interests estates in this the state.
  163         (2) Recognize that the economic health and efficient
  164  operation of the vacation ownership industry are in part
  165  dependent upon the availability of an efficient and economical
  166  process for all timeshare interest foreclosures foreclosure.
  167         (3) Recognize the need to assist both owners’ associations
  168  and mortgagees by simplifying and expediting the process for the
  169  judicial and trustee of foreclosure of assessment liens and
  170  mortgage liens against timeshare interests estates.
  171         (4) Improve judicial economy and reduce court congestion
  172  and the cost to taxpayers by establishing streamlined procedures
  173  for the judicial and trustee foreclosure of assessment liens and
  174  mortgage liens against timeshare interests estates.
  175         (5) Recognize that nearly all timeshare interest
  176  foreclosures are uncontested.
  177         (6) Protect the ability of consumers who own timeshare
  178  interests located in this state to choose a judicial proceeding
  179  for the foreclosure of an assessment lien or a mortgage lien
  180  against their timeshare interest.
  181         (7) Recognize that the use of the trustee foreclosure
  182  procedure established under ss. 721.855 and 721.856 has the same
  183  force and effect as the use of the judicial foreclosure
  184  procedure against a timeshare interest with respect to the
  185  provisions of this chapter or any other applicable law. However,
  186  obligors are not subject to a deficiency judgment even if the
  187  proceeds from the sale of the timeshare interest are
  188  insufficient to offset the amounts secured by the lien.
  189         Section 6. Section 721.82, Florida Statutes, is amended to
  190  read:
  191         721.82 Definitions.—As used in this part, the term:
  192         (1) “Amounts secured by the lien” means all amounts secured
  193  by an assessment lien or mortgage lien, including, but not
  194  limited to, all past due amounts, accrued interest, late fees,
  195  taxes, advances for the payment of taxes, insurance and
  196  maintenance of the timeshare interest, and any fees or costs
  197  incurred by the lienholder or trustee, including any reasonable
  198  attorney’s fees, trustee’s fees, and costs incurred in
  199  connection with the default.
  200         (2)(1) “Assessment lien” means:
  201         (a) A lien for delinquent assessments as provided in ss.
  202  721.16, 718.116, and 719.108, and 721.16 as to timeshare
  203  condominiums; or
  204         (b) A lien for unpaid ad valorem assessments, tax
  205  assessments, taxes and special assessments as provided in s.
  206  192.037(8).
  207         (3)(2) “Junior interestholder” means any person who has a
  208  lien or interest of record against a timeshare interest estate
  209  in the county or counties in which the timeshare interest estate
  210  is located, which is inferior to the mortgage lien or assessment
  211  lien being foreclosed under this part.
  212         (4)(3) “Lienholder” means a holder of an assessment lien or
  213  a holder of a mortgage lien, as applicable. A receiver appointed
  214  under s. 721.26 is a lienholder for purposes of foreclosure of
  215  assessment liens under this part.
  216         (5)(4) “Mortgage” has the same meaning as set forth in s.
  217  697.01.
  218         (6)(5) “Mortgage lien” means a security interest in a
  219  timeshare interest estate created by a mortgage encumbering the
  220  timeshare interest estate.
  221         (7)(6) “Mortgagee” means a person holding a mortgage lien.
  222         (8)(7) “Mortgagor” means a person granting a mortgage lien
  223  or a person who has assumed the obligation secured by a mortgage
  224  lien.
  225         (9)(8) “Notice address” means:
  226         (a) As to an assessment lien, the address of the current
  227  owner of a timeshare interest estate as reflected by the books
  228  and records of the timeshare plan under ss. 721.13(4) and
  229  721.15(7).
  230         (b) As to a mortgage lien:
  231         1. The address of the mortgagor as set forth in the
  232  mortgage, the promissory note, or a separate document executed
  233  by the mortgagor at the time the mortgage lien was created, or
  234  the most current address of the mortgagor according to the
  235  records of the mortgagee; and
  236         2. If the current owner of the timeshare interest estate is
  237  different from the mortgagor, the address of the current owner
  238  of the timeshare interest estate as reflected by the books and
  239  records of the mortgagee.
  240         (c) As to a junior interestholder, the address as set forth
  241  in the recorded instrument creating the junior lien interest or
  242  interest lien, or in any recorded amendment supplement thereto
  243  changing the address, or in any written notification by the
  244  junior interestholder to the foreclosing lienholder changing the
  245  of such change in address.
  246         (10)(9) “Obligor” means the mortgagor, the person subject
  247  to an assessment lien, or the record owner of the timeshare
  248  interest estate.
  249         (11) “Permitted delivery service” means any nationally
  250  recognized common carrier delivery service or international
  251  airmail service that allows for return receipt service.
  252         (12)(10) “Registered agent” means an agent duly appointed
  253  by the obligor under s. 721.84 for the purpose of accepting all
  254  notices and service of process under this part. A registered
  255  agent may be an individual resident in this state whose business
  256  office qualifies as a registered office, or a domestic or
  257  foreign corporation or a not-for-profit corporation as defined
  258  in chapter 617 authorized to transact business or to conduct its
  259  affairs in this state, whose business office qualifies as a
  260  registered office. A registered agent for any obligor may not be
  261  the lienholder or the attorney for the lienholder.
  262         (13)(11) “Registered office” means the street address of
  263  the business office of the registered agent appointed under s.
  264  721.84, located in this state.
  265         (14) “Trustee” means an attorney who is a member in good
  266  standing of The Florida Bar and who has been practicing law for
  267  at least 5 years or that attorney’s law firm, or a title insurer
  268  authorized to transact business in this state under s. 624.401
  269  for at least 5 years, and who is appointed as trustee or as
  270  substitute trustee in accordance with s. 721.855 or s. 721.856.
  271  A receiver appointed under s. 721.26 may act as a trustee under
  272  s. 721.855. A trustee must be independent as defined in s.
  273  721.05.
  274         Section 7. Section 721.83, Florida Statutes, is amended to
  275  read:
  276         721.83 Consolidation of judicial foreclosure actions.—
  277         (1) A complaint in a foreclosure proceeding involving
  278  timeshare interests estates may join in the same action multiple
  279  defendant obligors and junior interestholders of separate
  280  timeshare interests if estates, provided:
  281         (a) The foreclosure proceeding involves a single timeshare
  282  property.
  283         (b) The foreclosure proceeding is filed by a single
  284  plaintiff.
  285         (c) The default and remedy provisions in the written
  286  instruments on which the foreclosure proceeding is based are
  287  substantially the same for each defendant.
  288         (d) The nature of the defaults alleged is the same for each
  289  defendant.
  290         (e) No more than 15 timeshare interests estates, without
  291  regard to the number of defendants, are joined within the same
  292  consolidated foreclosure action.
  293         (2) In any foreclosure proceeding involving multiple
  294  defendants filed under subsection (1), the court shall sever for
  295  separate trial any count of the complaint in which a defense or
  296  counterclaim is timely raised by a defendant.
  297         (3) A consolidated timeshare foreclosure action is shall be
  298  considered a single action, suit, or proceeding for the payment
  299  of filing fees and service charges pursuant to general law. In
  300  addition to the payment of such filing fees and service charges,
  301  An additional filing fee of up to $10 for each timeshare
  302  interest estate joined in that action shall be paid to the clerk
  303  of court.
  304         Section 8. Section 721.85, Florida Statutes, is amended to
  305  read:
  306         721.85 Service to notice address or on registered agent.—
  307         (1) Service of process for a foreclosure proceeding
  308  involving a timeshare interest estate may be made by any means
  309  recognized by law. In addition, substituted service on an
  310  obligor a party who has appointed a registered agent under s.
  311  721.84 may be made on such registered agent at the registered
  312  office. If Also, when using s. 48.194 where in rem or quasi in
  313  rem relief only is sought, such service of process provisions
  314  are modified in connection with a foreclosure proceeding against
  315  a timeshare interest estate to provide that:
  316         (a) Such service of process may be made on any person
  317  whether the person is located inside or outside this state, by
  318  certified mail, or registered mail, or permitted delivery
  319  service, return receipt requested, addressed to the person to be
  320  served at the notice address, or on the person’s party’s
  321  registered agent duly appointed under s. 721.84, at the
  322  registered office; and
  323         (b) Service is shall be considered obtained upon the
  324  signing of the return receipt by any person at the notice
  325  address, or by the registered agent.
  326         (2) The current owner and the mortgagor of a timeshare
  327  interest estate must promptly notify the owners’ association and
  328  the mortgagee of any change of address.
  329         (3) Substituted notice under s. 721.855 or s. 721.856 for
  330  any party who has appointed a registered agent under s. 721.84
  331  may be made on the registered agent at the registered office.
  332         Section 9. Section 721.855, Florida Statutes, is created to
  333  read:
  334         721.855 Procedure for the trustee foreclosure of assessment
  335  liens.—This section establishes a trustee foreclosure procedure
  336  for assessment liens.
  337         (1) APPOINTMENT OF TRUSTEE.—
  338         (a) A trustee or a substitute trustee may be appointed by a
  339  lienholder at any time by recording a notice of appointment of
  340  trustee or notice of substitution of trustee in the official
  341  records of the county or counties in which the timeshare
  342  interest is located. A lienholder may appoint multiple trustees
  343  in a single appointment, and an appointed trustee may be used by
  344  the lienholder regarding the trustee foreclosure of an
  345  assessment lien under the timeshare plan for which the trustee
  346  is appointed.
  347         (b) A trustee shall use good faith, skill, care, and
  348  diligence in discharging all of the trustee duties under this
  349  section and shall deal honestly and fairly with all parties.
  350         (c) The recorded notice of appointment of trustee or notice
  351  of substitution of trustee must contain the name and address of
  352  the trustee or substitute trustee, the name and address of the
  353  lienholder, and the name and address of the timeshare plan.
  354         (2) INITIATING A TRUSTEE FORECLOSURE PROCEDURE.—
  355         (a) Before initiating a trustee foreclosure procedure
  356  against a timeshare interest in a given timeshare plan:
  357         1. If a timeshare instrument contains any provision that
  358  specifically prevents the use of the trustee foreclosure
  359  procedure, or if the managing entity otherwise determines that
  360  the timeshare instrument should be amended to specifically
  361  provide for the use of the trustee foreclosure procedure, an
  362  amendment to the timeshare instrument permitting the use of the
  363  trustee foreclosure procedure set forth in this section must be
  364  adopted and recorded before the use of the trustee foreclosure
  365  procedure. Such amendment to the timeshare instrument,
  366  containing a statement in substantially the following form, may
  367  be adopted by a majority of those present and voting at a duly
  368  called meeting of the owners’ association at which at least 15
  369  percent of the voting interest are present in person or by
  370  proxy:
  371  
  372         If a timeshare owner fails to make timely payments of
  373         timeshare plan common expenses, ad valorem taxes, or
  374         special assessments, an assessment lien against the
  375         timeshare owner’s timeshare interest may be foreclosed
  376         in accordance with a judicial foreclosure procedure or
  377         a trustee foreclosure procedure, either of which may
  378         result in the loss of the timeshare owner’s timeshare
  379         interest. If the managing entity initiates a trustee
  380         foreclosure procedure, the timeshare owner may object
  381         pursuant to state law, and, in such event, the
  382         managing entity may proceed only by filing a judicial
  383         foreclosure action.
  384  
  385         2. The managing entity shall inform owners of timeshare
  386  interests in the timeshare plan in writing that the managing
  387  entity has the right to elect to use the trustee foreclosure
  388  procedure with respect to foreclosure of assessment liens as
  389  established in this section. The managing entity is deemed to
  390  have complied with this subparagraph if the owners of timeshare
  391  interests in the given timeshare plan are informed by mail sent
  392  to each owner’s notice address, in the notice of an annual or
  393  special meeting of the owners, by posting on the website of the
  394  applicable timeshare plan, or by any owner communication used by
  395  the managing entity.
  396         (b) Before initiating the trustee foreclosure procedure
  397  against a timeshare interest, a claim of lien against the
  398  timeshare interest must be recorded under s. 721.16 or, if
  399  applicable, s. 718.116 or s. 719.108, and the notice of the
  400  intent to file a lien must be given under s. 718.121 for
  401  timeshare condominiums and s. 719.108 for timeshare
  402  cooperatives.
  403         (c) In order to initiate a trustee foreclosure procedure
  404  against a timeshare interest, the lienholder shall deliver an
  405  affidavit to the trustee that identifies the obligor; the notice
  406  address of the obligor; the timeshare interest; the date that
  407  the notice of the intent to file a lien was given, if
  408  applicable; the official records book and page number where the
  409  claim of lien is recorded; and the name and notice address of
  410  any junior interestholder. The affidavit must be accompanied by
  411  a title search of the timeshare interest identifying any junior
  412  interestholders of record, and the effective date of the title
  413  search must be a date that is within 60 calendar days before the
  414  date of the affidavit. The affidavit must also:
  415         1. State the facts that establish that the obligor has
  416  defaulted in the obligation to make a payment under a specified
  417  provision of the timeshare instrument or applicable law.
  418         2. Specify the amounts secured by the lien as of the date
  419  of the affidavit and a per diem amount to account for further
  420  accrual of the amounts secured by the lien.
  421         3. State that the assessment lien was properly created and
  422  authorized pursuant to the timeshare instrument and applicable
  423  law.
  424         (3) OBLIGOR’S RIGHTS.—
  425         (a) The obligor may object to the lienholder’s use of the
  426  trustee foreclosure procedure for a specific default any time
  427  before the sale of the timeshare interest under subsection (7)
  428  by delivering a written objection to the trustee using the
  429  objection form provided in subsection (5). If the trustee
  430  receives the written objection from the obligor, the trustee may
  431  not proceed with the trustee foreclosure procedure as to the
  432  default specified in the notice of default and intent to
  433  foreclose under subsection (5), and the lienholder may proceed
  434  only with a judicial foreclosure action as to that specified
  435  default.
  436         (b) At any time before the trustee issues the certificate
  437  of sale under paragraph (7)(f), the obligor may cure the default
  438  and redeem the timeshare interest by paying the amounts secured
  439  by the lien in cash or certified funds to the trustee. There is
  440  no right of redemption after the trustee issues the certificate
  441  of sale.
  442         (4) CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A
  443  trustee may sell an encumbered timeshare interest foreclosed
  444  under this section if:
  445         (a) The trustee has received the affidavit from the
  446  lienholder under paragraph (2)(c);
  447         (b) The trustee has not received a written objection to the
  448  use of the trustee foreclosure procedure under paragraph (3)(a)
  449  and the timeshare interest was not redeemed under paragraph
  450  (3)(b);
  451         (c) There is no lis pendens recorded and pending against
  452  the same timeshare interest and the trustee has not been served
  453  notice of the filing of any action to enjoin the trustee
  454  foreclosure sale;
  455         (d) The trustee has provided written notice of default and
  456  intent to foreclose as required under subsection (5) and at
  457  least 30 calendar days has elapsed after such notice is deemed
  458  perfected under subsection (5); and
  459         (e) The notice of sale required under subsection (6) has
  460  been recorded in the official records of the county or counties
  461  in which the timeshare interest is located.
  462         (5) NOTICE OF DEFAULT AND INTENT TO FORECLOSE.—
  463         (a) In any foreclosure proceeding under this section, the
  464  trustee must notify the obligor of the proceeding by sending the
  465  obligor a written notice of default and intent to foreclose to
  466  the notice address of the obligor by certified mail, registered
  467  mail, or permitted delivery service, return receipt requested,
  468  and by first-class mail or permitted delivery service, postage
  469  prepaid, as follows:
  470         1. The notice of default and intent to foreclose must
  471  identify the obligor, the notice address of the obligor, the
  472  legal description of the timeshare interest, the nature of the
  473  default, the amounts secured by the lien, and a per diem amount
  474  to account for further accrual of the amounts secured by the
  475  lien and state the method by which the obligor may cure the
  476  default, including the period of time after the date of the
  477  notice of default and intent to foreclose within which the
  478  obligor may cure the default.
  479         2. The notice of default and intent to foreclose must
  480  include an objection form with which the obligor can object to
  481  the use of the trustee foreclosure procedure by signing and
  482  returning the objection form to the trustee. The objection form
  483  must identify the obligor, the notice address of the obligor,
  484  the timeshare interest, and the return address of the trustee
  485  and state: “The undersigned obligor exercises the obligor’s
  486  right to object to the use of the trustee foreclosure procedure
  487  contained in s. 721.855, Florida Statutes.”
  488         3. The notice of default and intent to foreclose shall also
  489  contain a statement in substantially the following form:
  490  
  491         If you fail to cure the default as set forth in this
  492         notice or take other appropriate action with regard to
  493         this foreclosure matter, you risk losing ownership of
  494         your timeshare interest through the trustee
  495         foreclosure procedure established in section 721.855,
  496         Florida Statutes. You may choose to sign and send to
  497         the trustee the enclosed objection form, exercising
  498         your right to object to the use of the trustee
  499         foreclosure procedure. Upon the trustee’s receipt of
  500         your signed objection form, the foreclosure of the
  501         lien with respect to the default specified in this
  502         notice shall be subject to the judicial foreclosure
  503         procedure only. You have the right to cure your
  504         default in the manner set forth in this notice at any
  505         time before the trustee’s sale of your timeshare
  506         interest. If you do not object to the use of the
  507         trustee foreclosure procedure, you will not be subject
  508         to a deficiency judgment even if the proceeds from the
  509         sale of your timeshare interest are insufficient to
  510         offset the amounts secured by the lien.
  511  
  512         4. The trustee shall also mail a copy of the notice of
  513  default and intent to foreclose, without the objection form, to
  514  the notice address of any junior interestholder by certified
  515  mail, registered mail, or permitted delivery service, return
  516  receipt requested, and by first-class mail or permitted delivery
  517  service, postage prepaid.
  518         5.Notice under this paragraph is considered perfected upon
  519  the trustee receiving the return receipt bearing the signature
  520  of the obligor or junior interestholder, as applicable, within
  521  30 calendar days after the trustee sent the notice. Notice is
  522  not perfected if the notice is returned as undeliverable within
  523  30 calendar days after the trustee sent the notice, if the
  524  trustee cannot ascertain from the receipt that the obligor or
  525  junior interestholder is the person who signed the receipt, or
  526  if the receipt from the obligor or junior interestholder is
  527  returned or refused within 30 calendar days after the trustee
  528  sent the notice.
  529         (b) If the notice required by paragraph (a) is returned as
  530  undeliverable within 30 calendar days after the trustee sent the
  531  notice, the trustee shall perform a diligent search and inquiry
  532  to obtain a different address for the obligor or junior
  533  interestholder. For purposes of this paragraph, any address
  534  known and used by the lienholder for sending regular mailings or
  535  other communications from the lienholder to the obligor or
  536  junior interestholder, as applicable, shall be included with
  537  other addresses produced from the diligent search and inquiry,
  538  if any.
  539         1.If the trustee’s diligent search and inquiry produces an
  540  address different from the notice address, the trustee shall
  541  mail a copy of the notice by certified mail, registered mail, or
  542  permitted delivery service, return receipt requested, and by
  543  first-class mail or permitted delivery service, postage prepaid,
  544  to the new address. Notice is considered perfected upon the
  545  trustee receiving the return receipt bearing the signature of
  546  the obligor or junior interestholder, as applicable, within 30
  547  calendar days after the trustee sent the notice under this
  548  subparagraph. Notice is not perfected if the trustee cannot
  549  ascertain from the receipt that the obligor or junior
  550  interestholder is the person who signed the receipt or the
  551  receipt from the obligor or junior interestholder is returned
  552  refused. If the trustee does not perfect notice under this
  553  subparagraph, the trustee shall perfect service under paragraph
  554  (c).
  555         2. If the trustee’s diligent search and inquiry does not
  556  locate a different address for the obligor or junior
  557  interestholder, as applicable, the trustee may perfect notice
  558  against that person under paragraph (c).
  559         (c) If the notice is not perfected under subparagraph (a)5.
  560  and was not returned as undeliverable, or if the notice was not
  561  perfected under subparagraph (b)1., the trustee may perfect
  562  notice by publication in a newspaper of general circulation in
  563  the county or counties in which the timeshare interest is
  564  located. The notice must appear at least once a week for 2
  565  consecutive weeks. The trustee may group an unlimited number of
  566  notices in the same publication, if all of the notices pertain
  567  to the same timeshare plan. Notice is considered perfected upon
  568  publication as required in this paragraph.
  569         (d) If notice is perfected under subparagraph (a)5., the
  570  trustee shall execute an affidavit in recordable form setting
  571  forth the manner in which notice was perfected and attach the
  572  affidavit to the certificate of compliance set forth in
  573  subsection (9). The affidavit must state the nature of the
  574  notice, the date on which the notice was mailed, the name and
  575  address on the envelope containing the notice, the manner in
  576  which the notice was mailed, and the basis for that knowledge.
  577         (e) If notice is perfected under subparagraph (b)1., the
  578  trustee shall execute an affidavit in recordable form setting
  579  forth the manner in which notice was perfected and attach the
  580  affidavit to the certificate of compliance set forth in
  581  subsection (9). The affidavit must state the nature of the
  582  notice, the dates on which the notice was mailed, the name and
  583  addresses on the envelopes containing the notice, the manner in
  584  which the notices were mailed, the fact that a signed receipt
  585  from the certified mail, registered mail, or permitted delivery
  586  service was timely received, and the name and address on the
  587  envelopes containing the notice.
  588         (f) If notice is perfected by publication under paragraph
  589  (c), the trustee shall execute an affidavit in recordable form
  590  setting forth the manner in which notice was perfected and
  591  attach the affidavit to the certificate of compliance set forth
  592  in subsection (9). The affidavit must include all the
  593  information contained in paragraph (d) or paragraph (e), as
  594  applicable, state that the notice was perfected by publication
  595  after diligent search and inquiry was made for the current
  596  address for the person, include a statement that notice was
  597  perfected by publication, and shall set forth the information
  598  required by s. 49.041 in the case of a natural person or s.
  599  49.051 in the case of a corporation, as applicable. No other
  600  action of the trustee is necessary to perfect notice.
  601         (6) NOTICE OF SALE.—
  602         (a) The notice of sale must include:
  603         1. The name and notice addresses of the obligor and any
  604  junior interestholder.
  605         2. The legal description of the timeshare interest.
  606         3.The name and address of the trustee.
  607         4. A description of the default that is the basis for the
  608  foreclosure.
  609         5. The official records book and page numbers where the
  610  claim of lien is recorded.
  611         6. The amounts secured by the lien and a per diem amount to
  612  account for further accrual of the amounts secured by the lien.
  613         7.The date, location, and starting time of the trustee’s
  614  sale.
  615         8.The right of and the method by which the obligor may
  616  cure the default or the right of any junior interestholder to
  617  redeem its interest up to the date the trustee issues the
  618  certificate of sale in accordance with paragraph (7)(f).
  619         (b)The trustee shall send a copy of the notice of sale
  620  within 3 business days after the date it is submitted for
  621  recording, by first-class mail or permitted delivery service,
  622  postage prepaid, to the notice addresses of the obligor and any
  623  junior interestholder.
  624         (c) After the date of recording the notice of sale, notice
  625  does not have to be given to any person claiming an interest in
  626  the timeshare interest except as provided in this section. The
  627  recording of the notice of sale has the same force and effect as
  628  the filing of a lis pendens in a judicial proceeding under s.
  629  48.23.
  630         (d) The trustee shall publish the notice of sale in a
  631  newspaper of general circulation in the county or counties in
  632  which the timeshare interest is located at least once a week for
  633  2 consecutive weeks before the date of the sale. The last
  634  publication must occur at least 5 calendar days before the sale.
  635  The trustee may group an unlimited number of notices of sale in
  636  the same publication, if all of the notices of sale pertain to
  637  the same timeshare plan.
  638         (7) MANNER OF SALE.—
  639         (a) The sale of a timeshare interest by the trustee in a
  640  public auction shall be held in the county in which the
  641  timeshare interest is located, on the date, location, and
  642  starting time designated in the notice of sale, which must be
  643  after 9 a.m. but before 4 p.m. on a business day at least 30
  644  calendar days after the recording of the notice of sale. The
  645  trustee’s sale may occur online at a specific website on the
  646  Internet or in any other manner used by the clerk of the court
  647  for a judicial foreclosure sales procedure in the county or
  648  counties in which the timeshare interest is located.
  649         (b) The trustee shall conduct the sale and act as the
  650  auctioneer.
  651         (c) The lienholder and any person other than the trustee
  652  may bid at the sale. In lieu of participating in the sale, the
  653  lienholder may send the trustee written bidding instructions
  654  that the trustee shall announce as appropriate during the sale.
  655         (d) The trustee may postpone the sale, in which case,
  656  notice of postponement must be given by the trustee at the date,
  657  time, and location contained in the notice of sale. The notice
  658  of sale for the postponed sale must be mailed under paragraph
  659  (6)(b), recorded under paragraph (4)(e), and published under
  660  paragraph (6)(d). The effective date of the initial notice of
  661  sale is not affected by a postponed sale.
  662         (e) The highest bidder of the timeshare interest shall pay
  663  the price bid to the trustee in cash or certified funds on the
  664  day of the sale. If the lienholder is the highest bidder, the
  665  lienholder shall receive a credit up to the amount set forth in
  666  the notice of sale as required under subparagraph (6)(a)6.
  667         (f) On the date of the sale and upon receipt of the cash or
  668  certified funds due from the highest bidder, the trustee shall
  669  issue to the highest bidder a certificate of sale stating that a
  670  foreclosure conforming to the requirements of this section has
  671  occurred, including the time, location, and date of the sale,
  672  that the timeshare interest was sold, the amounts secured by the
  673  lien, and the amount of the highest bid. A copy of the
  674  certificate of sale shall be mailed by certified mail,
  675  registered mail, or permitted delivery service, return receipt
  676  requested, to all persons entitled to receive a notice of sale
  677  under subsection (6).
  678         (g) Before a sale conducted under this subsection, a junior
  679  interestholder may pursue adjudication by court, by
  680  interpleader, or in any other authorized manner respecting any
  681  matter that is disputed by the junior interestholder.
  682         (8) EFFECT OF TRUSTEE’S SALE.—
  683         (a) A sale conducted under subsection (7) forecloses and
  684  terminates all interests of any person to whom notice is given
  685  under paragraphs (4)(d) and (6)(b), and any other person
  686  claiming interests by, through, or under any such person, in the
  687  affected timeshare interest. A failure to give notice to any
  688  person entitled to notice does not affect the validity of the
  689  sale as to the interests of persons properly notified. A person
  690  entitled to notice but not given notice has the rights of a
  691  person not made a defendant in a judicial foreclosure.
  692         (b) On the issuance of a certificate of sale under
  693  paragraph (7)(f), all rights of redemption that are foreclosed
  694  under this section terminate.
  695         (c)A sale conducted under subsection (7) releases the
  696  obligor’s liability for all amounts secured by the lien. The
  697  lienholder does not have a right to any deficiency judgment
  698  against the obligor after a sale of the obligor’s timeshare
  699  interest under this section.
  700         (d)The issuance and recording of the trustee’s deed is
  701  presumed valid and may be relied upon by third parties without
  702  actual knowledge of irregularities in the foreclosure
  703  proceedings. If for any reason there is an irregularity in the
  704  foreclosure proceedings, a purchaser becomes subrogated to all
  705  the rights of the lienholder to the indebtedness that it secured
  706  to the extent necessary to reforeclose the assessment lien in
  707  order to correct the irregularity and becomes entitled to an
  708  action de novo for the foreclosure of the assessment lien. Any
  709  subsequent reforeclosure required to correct an irregularity may
  710  be conducted under this section.
  711         (9) TRUSTEE’S CERTIFICATE OF COMPLIANCE.—
  712         (a) Within 10 calendar days after the trustee conducts a
  713  sale, the trustee shall execute and acknowledge a certificate of
  714  compliance that:
  715         1. Confirms delivery of the notice of default and intent to
  716  foreclose and attaches the affidavit required under subsection
  717  (5).
  718         2. States that the default was not cured, that the trustee
  719  did not receive any written objection under paragraph (3)(a),
  720  and that the timeshare interest was not redeemed under paragraph
  721  (3)(b).
  722         3. Confirms that the notice of sale was published as
  723  required under paragraph (6)(d) and attaches an affidavit of
  724  publication for the notice of sale.
  725         4. Confirms that the notice of sale was mailed under
  726  paragraph (6)(b) together with a list of the parties to whom the
  727  notice of sale was mailed.
  728         (b) In furtherance of the execution of the certificate of
  729  compliance required under this subsection, the trustee is
  730  entitled to rely upon an affidavit or certification from the
  731  lienholder as to the facts and circumstances of default and
  732  failure to cure the default.
  733         (10) TRUSTEE’S DEED.—
  734         (a) The trustee’s deed must include the name and address of
  735  the trustee, the name and address of the highest bidder, the
  736  name of the former owner, a legal description of the timeshare
  737  interest, and the name and address of the preparer of the
  738  trustee’s deed. The trustee’s deed must recite that the
  739  certificate of compliance was recorded and may not contain
  740  warranties of title from the trustee. The certificate of
  741  compliance shall be attached as an exhibit to the trustee’s
  742  deed.
  743         (b)Ten calendar days after a sale, absent the prior filing
  744  and service on the trustee of a judicial action to enjoin
  745  issuance of the trustee’s deed to the timeshare interest, the
  746  trustee shall:
  747         1. Issue a trustee’s deed to the highest bidder.
  748         2.Record the trustee’s deed in the official records of the
  749  county or counties in which the timeshare interest is located.
  750         (c)The certificate of compliance and trustee’s deed
  751  together are presumptive evidence of the truth of the matters
  752  set forth in them, and an action to set aside the sale and void
  753  the trustee’s deed may not be filed or otherwise pursued against
  754  any person acquiring the timeshare interest for value.
  755         1. The trustee’s deed conveys to the highest bidder all
  756  rights, title, and interest in the timeshare interest that the
  757  former owner had, or had the power to convey, at the time of the
  758  recording of the claim of lien, together with all rights, title,
  759  and interest that the former owner or his or her successors in
  760  interest acquired after the recording of the claim of lien.
  761         2.The issuance and recording of a trustee’s deed has the
  762  same force and effect as the issuance and recording of a
  763  certificate of title by the clerk of the court in a judicial
  764  foreclosure action.
  765         (11)DISPOSITION OF PROCEEDS OF SALE.—
  766         (a)The trustee shall apply the proceeds of the sale as
  767  follows:
  768         1. To the expenses of the sale, including compensation of
  769  the trustee.
  770         2. To the amount owed and set forth in the notice as
  771  required in subparagraph (6)(a)6.
  772         3. If there are junior interestholders, the trustee may
  773  file an action in interpleader, pay the surplus to a court, name
  774  the competing junior interestholders, and ask the court to
  775  determine the proper distribution of the surplus. In an
  776  interpleader action, the trustee shall recover reasonable
  777  attorney’s fees and costs.
  778         4. If there are no junior interestholders, or if all junior
  779  interestholders have been paid, any surplus shall be paid to the
  780  former owner. If the trustee is unable to locate the former
  781  owner within 1 year after the sale, the surplus, if any, shall
  782  be deposited with the Chief Financial Officer under chapter 717.
  783         (b) In disposing of the proceeds of the sale, the trustee
  784  may rely on the information provided in the affidavit of the
  785  lienholder under paragraph (2)(c) and, if there is a dispute or
  786  uncertainty over such claims, the trustee may submit the matter
  787  to adjudication by court, by interpleader, or in any other
  788  authorized manner and shall recover reasonable attorney’s fees
  789  and costs.
  790         (12) TRUSTEE FORECLOSURE ACTIONS.—The trustee foreclosure
  791  procedure established in this section does not impair or
  792  otherwise affect the lienholder’s continuing right to bring a
  793  judicial foreclosure action, in lieu of using the trustee
  794  foreclosure procedure, with respect to any assessment lien.
  795         (13) APPLICATION.—This section applies to any default
  796  giving rise to the imposition of an assessment lien which occurs
  797  after the effective date of this section.
  798         (14) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
  799  PROCEDURE.—An action for actual damages for a material violation
  800  of this section may be brought by an obligor against the
  801  lienholder for the failure to follow the trustee foreclosure
  802  procedure contained in this section.
  803         Section 10. Section 721.856, Florida Statutes, is created
  804  to read:
  805         721.856Procedure for the trustee foreclosure of mortgage
  806  liens.—This section establishes a trustee foreclosure procedure
  807  for mortgage liens.
  808         (1) APPOINTMENT OF TRUSTEE.—
  809         (a) A trustee or a substitute trustee may be appointed by a
  810  lienholder by recording a notice of appointment of trustee or
  811  notice of substitution of trustee in the official records of the
  812  county or counties in which the timeshare interest is located. A
  813  lienholder may appoint multiple trustees in a single
  814  appointment, and an appointed trustee may be used by the
  815  lienholder regarding the trustee foreclosure of any mortgage
  816  lien.
  817         (b) A trustee shall use good faith, skill, care, and
  818  diligence in discharging all of the trustee duties under this
  819  section and deal honestly and fairly with all parties.
  820         (c) The recorded notice of appointment of trustee or notice
  821  of substitution of trustee must contain the name and address of
  822  the trustee or substitute trustee, the name and address of the
  823  lienholder, and the name and address of the timeshare plan.
  824         (2) INITIATING THE TRUSTEE FORECLOSURE OF MORTGAGE LIENS.—
  825         (a) Before initiating the trustee foreclosure against a
  826  timeshare interest, the mortgage, or an amendment to a mortgage
  827  executed by the obligor before the effective date of this
  828  section, must contain a statement in substantially the following
  829  form:
  830  
  831         If the mortgagor fails to make timely payments under
  832         the obligation secured by this mortgage, or is
  833         otherwise deemed in uncured default of this mortgage,
  834         the lien against the mortgagor’s timeshare interest
  835         created by this mortgage may be foreclosed in
  836         accordance with a judicial foreclosure procedure or a
  837         trustee foreclosure procedure and may result in the
  838         loss of your timeshare interest. If the mortgagee
  839         initiates a trustee foreclosure procedure, the
  840         mortgagor may object and the mortgagee may proceed
  841         only by filing a judicial foreclosure action.
  842  
  843         (b) In order to initiate a trustee foreclosure procedure
  844  against a timeshare interest, the lienholder shall deliver an
  845  affidavit to the trustee that identifies the obligor, the notice
  846  address of the obligor, the timeshare interest, the official
  847  records book and page number where the mortgage is recorded, and
  848  the name and notice address of any junior interestholder. The
  849  affidavit must be accompanied by a title search of the timeshare
  850  interest identifying any junior interestholders of record, and
  851  the effective date of the title search must be a date that is
  852  within 60 calendar days before the date of the affidavit. The
  853  affidavit must also:
  854         1. State the facts that establish that the obligor has
  855  defaulted in the obligation to make a payment under a specified
  856  provision of the mortgage or is otherwise deemed in uncured
  857  default under a specified provision of the mortgage.
  858         2. Specify the amounts secured by the lien as of the date
  859  of the affidavit and a per diem amount to account for further
  860  accrual of the amounts secured by the lien.
  861         3. State that the appropriate amount of documentary stamp
  862  tax and intangible taxes has been paid upon recording the
  863  mortgage, or otherwise paid to the state.
  864         4. State that the lienholder is the holder of the note, and
  865  has complied with all preconditions in the note and mortgage to
  866  determine the amounts secured by the lien and to initiate the
  867  use of the trustee foreclosure procedure.
  868         (3) OBLIGOR’S RIGHTS.—
  869         (a) The obligor may object to the lienholder’s use of the
  870  trustee foreclosure procedure for a specific default before the
  871  sale of the timeshare interest under subsection (7) by
  872  delivering a written objection to the trustee using the
  873  objection form provided in subsection (5). If the trustee
  874  receives the written objection from the obligor, the trustee may
  875  not proceed with the trustee foreclosure procedure as to the
  876  default specified in the notice of default and intent to
  877  foreclose under subsection (5), and the lienholder may proceed
  878  only with a judicial foreclosure action as to that specified
  879  default.
  880         (b) Before the trustee issues the certificate of sale under
  881  paragraph (7)(f), the obligor may cure the default and redeem
  882  the timeshare interest by paying the amounts secured by the lien
  883  in cash or certified funds to the trustee. There is no right of
  884  redemption after the trustee issues the certificate of sale.
  885         (4)CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A
  886  trustee may sell an encumbered timeshare interest foreclosed
  887  under this section if:
  888         (a)The trustee has received the affidavit from the
  889  lienholder under paragraph (2)(b);
  890         (b)The trustee has not received a written objection to the
  891  use of the trustee foreclosure procedure under paragraph (3)(a)
  892  and the timeshare interest was not redeemed under paragraph
  893  (3)(b);
  894         (c)There is no lis pendens recorded and pending against
  895  the same timeshare interest, and the trustee has not been served
  896  notice of the filing of any action to enjoin the trustee
  897  foreclosure sale;
  898         (d) The trustee is in possession of the original promissory
  899  note executed by the mortgagor and secured by the mortgage lien;
  900         (e)The trustee has provided written notice of default and
  901  intent to foreclose as required under subsection (5) and at
  902  least 30 calendar days have elapsed after the notice is deemed
  903  perfected under subsection (5); and
  904         (f) The notice of sale required under subsection (6) has
  905  been recorded in the official records of the county in which the
  906  mortgage was recorded.
  907         (5)NOTICE OF DEFAULT AND INTENT TO FORECLOSE.—
  908         (a)In any foreclosure proceeding under this section, the
  909  trustee must notify the obligor of the proceeding by sending the
  910  obligor a written notice of default and intent to foreclose to
  911  the notice address of the obligor by certified mail, registered
  912  mail, or permitted delivery service, return receipt requested,
  913  and by first-class mail or permitted delivery service, postage
  914  prepaid, as follows:
  915         1. The notice of default and intent to foreclose must
  916  identify the obligor, the notice address of the obligor, the
  917  legal description of the timeshare interest, the nature of the
  918  default, the amounts secured by the lien, and a per diem amount
  919  to account for further accrual of the amounts secured by the
  920  lien and state the method by which the obligor may cure the
  921  default, including the period of time after the date of the
  922  notice of default and intent to foreclose within which the
  923  obligor may cure the default.
  924         2. The notice of default and intent to foreclose must
  925  include an objection form with which the obligor can object to
  926  the use of the trustee foreclosure procedure by signing and
  927  returning the objection form to the trustee. The objection form
  928  must identify the obligor, the notice address of the obligor,
  929  the timeshare interest, and the return address of the trustee
  930  and state: “The undersigned obligor exercises the obligor’s
  931  right to object to the use of the trustee foreclosure procedure
  932  contained in s. 721.856, Florida Statutes.”
  933         3. The notice of default and intent to foreclose must also
  934  contain a statement in substantially the following form:
  935  
  936         If you fail to cure the default as set forth in this
  937         notice or take other appropriate action with regard to
  938         this foreclosure matter, you risk losing ownership of
  939         your timeshare interest through the trustee
  940         foreclosure procedure established in s. 721.856,
  941         Florida Statutes. You may sign and send the enclosed
  942         objection form to the trustee, exercising your right
  943         to object to the use of the trustee foreclosure
  944         procedure. Upon the trustee’s receipt of your signed
  945         objection form, the foreclosure of the lien with
  946         respect to the default specified in this notice is
  947         subject to the judicial foreclosure procedure only.
  948         You have the right to cure your default in the manner
  949         set forth in this notice at any time before the
  950         trustee’s sale of your timeshare interest. If you do
  951         not object to the use of the trustee foreclosure
  952         procedure, you will not be subject to a deficiency
  953         judgment even if the proceeds from the sale of your
  954         timeshare interest are insufficient to offset the
  955         amounts secured by the lien.
  956  
  957         4. The trustee shall also mail a copy of the notice of
  958  default and intent to foreclose, without the objection form, to
  959  the notice address of any junior interestholder by certified
  960  mail, registered mail, or permitted delivery service, return
  961  receipt requested, and by first-class mail or permitted delivery
  962  service, postage prepaid.
  963         5.Notice under this paragraph is considered perfected upon
  964  the trustee receiving the return receipt bearing the signature
  965  of the obligor or junior interestholder, as applicable, within
  966  30 calendar days after the trustee sent the notice. Notice is
  967  not perfected if the notice is returned as undeliverable within
  968  30 calendar days after the trustee sent the notice, if the
  969  trustee cannot ascertain from the receipt that the obligor or
  970  junior interestholder is the person who signed the receipt, or
  971  if the receipt from the obligor or junior interestholder is
  972  returned or refused within 30 calendar days after the trustee
  973  sent the notice.
  974         (b)If the notice required by paragraph (a) is returned as
  975  undeliverable within 30 calendar days after the trustee sent the
  976  notice, the trustee shall perform a diligent search and inquiry
  977  to obtain a different address for the obligor or junior
  978  interestholder. For purposes of this paragraph, any address
  979  known and used by the lienholder for sending regular mailings or
  980  other communications from the lienholder to the obligor or
  981  junior interestholder, as applicable, must be included with
  982  other addresses produced from the diligent search and inquiry,
  983  if any.
  984         1. If the trustee’s diligent search and inquiry produces an
  985  address different from the notice address, the trustee shall
  986  mail a copy of the notice by certified mail, registered mail, or
  987  permitted delivery service, return receipt requested, and by
  988  first-class mail or permitted delivery service, postage prepaid,
  989  to the new address. Notice under this subparagraph is considered
  990  perfected upon the trustee receiving the return receipt bearing
  991  the signature of the obligor or junior interestholder, as
  992  applicable, within 30 calendar days after the trustee sent the
  993  notice under this subparagraph. Notice is not perfected if the
  994  trustee cannot ascertain from the receipt that the obligor or
  995  junior interestholder is the person who signed the receipt or
  996  the receipt from the obligor or junior interestholder is
  997  returned refused. If the trustee does not perfect notice, the
  998  trustee shall perfect service under paragraph (c).
  999         2. If the trustee’s diligent search and inquiry does not
 1000  locate a different address for the obligor or junior
 1001  interestholder, as applicable, the trustee may perfect notice
 1002  against that person under paragraph (c).
 1003         (c) If the notice is not perfected under subparagraph
 1004  (a)5., and the notice was not returned as undeliverable, or if
 1005  the notice was not perfected under subparagraph (b)1., the
 1006  trustee may perfect notice by publication in a newspaper of
 1007  general circulation in the county or counties in which the
 1008  timeshare interest is located. The notice must appear at least
 1009  once a week for 2 consecutive weeks. The trustee may group an
 1010  unlimited number of notices in the same publication, if all of
 1011  the notices pertain to the same timeshare plan. Notice is
 1012  considered perfected upon publication as required in this
 1013  paragraph.
 1014         (d) If notice is perfected under subparagraph (a)5., the
 1015  trustee shall execute an affidavit in recordable form setting
 1016  forth the manner in which notice was perfected and attach the
 1017  affidavit to the certificate of compliance set forth in
 1018  subsection (9). The affidavit must state the nature of the
 1019  notice, the date on which the notice was mailed, the name and
 1020  address on the envelope containing the notice, the manner in
 1021  which the notice was mailed, and the basis for that knowledge.
 1022         (e) If notice is perfected under subparagraph (b)1., the
 1023  trustee shall execute an affidavit in recordable form setting
 1024  forth the manner in which notice was perfected and attach the
 1025  affidavit to the certificate of compliance set forth in
 1026  subsection (9). The affidavit must state the nature of the
 1027  notice, the dates on which the notice was mailed, the name and
 1028  addresses on the envelopes containing the notice, the manner in
 1029  which the notice was mailed, the fact that a signed receipt from
 1030  the certified mail, registered mail, or permitted delivery
 1031  service was timely received, and the name and address on the
 1032  envelopes containing the notice.
 1033         (f) If notice is perfected under paragraph (c), the trustee
 1034  shall execute an affidavit in recordable form setting forth the
 1035  manner in which notice was perfected and attach the affidavit to
 1036  the certificate of compliance set forth in subsection (9). The
 1037  affidavit must include all the information contained in
 1038  paragraph (d) or paragraph (e), as applicable, state that the
 1039  notice was perfected by publication after diligent search and
 1040  inquiry was made for the current address for the person, include
 1041  a statement that notice was perfected by publication, and set
 1042  forth the information required by s. 49.041 in the case of a
 1043  natural person or s. 49.051 in the case of a corporation,
 1044  whichever is applicable. No other action of the trustee is
 1045  necessary to perfect notice.
 1046         (6) NOTICE OF SALE.—
 1047         (a) The notice of sale must contain:
 1048         1. The name and notice addresses of the obligor and any
 1049  junior interestholder.
 1050         2. The legal description of the timeshare interest.
 1051         3. The name and address of the trustee.
 1052         4. A description of the default that is the basis for the
 1053  foreclosure.
 1054         5. The official records book and page numbers where the
 1055  mortgage is recorded.
 1056         6. The amounts secured by the lien and a per diem amount to
 1057  account for further accrual of the amounts secured by the lien.
 1058         7. The date, location, and starting time of the trustee’s
 1059  sale.
 1060         8. The right of and the method by which the obligor may
 1061  cure the default or the right of any junior interestholder to
 1062  redeem its interest up to the date the trustee issues the
 1063  certificate of sale in accordance with paragraph (7)(f).
 1064         (b) The trustee shall send a copy of the notice of sale
 1065  within 3 business days after the date it is submitted for
 1066  recording, by first-class mail or permitted delivery service,
 1067  postage prepaid, to the notice addresses of the obligor and any
 1068  junior interestholder.
 1069         (c) After the date of recording of the notice of sale,
 1070  notice is not required to be given to any person claiming an
 1071  interest in the timeshare interest except as provided in this
 1072  section. The recording of the notice of sale has the same force
 1073  and effect as the filing of a lis pendens in a judicial
 1074  proceeding under s. 48.23.
 1075         (d) The trustee shall publish the notice of sale in a
 1076  newspaper of general circulation in the county or counties in
 1077  which the timeshare interest is located at least once a week for
 1078  2 consecutive weeks before the date of the sale. The last
 1079  publication must occur at least 5 calendar days before the sale.
 1080  The trustee may group an unlimited number of notices of sale in
 1081  the same publication, if all of the notices of sale pertain to
 1082  the same timeshare plan.
 1083         (7) MANNER OF SALE.—
 1084         (a) The sale of a timeshare interest by the trustee in a
 1085  public auction shall be held in the county in which the
 1086  timeshare interest is located, on the date, location, and
 1087  starting time designated in the notice of sale, which must be
 1088  after 9 a.m. but before 4 p.m. on a business day at least 30
 1089  calendar days after the recording of the notice of sale. The
 1090  trustee’s sale may occur online at a specific website on the
 1091  Internet or in any other manner used by the clerk of the court
 1092  for a judicial foreclosure sales procedure in the county or
 1093  counties in which the timeshare interest is located.
 1094         (b) The trustee shall conduct the sale and act as the
 1095  auctioneer.
 1096         (c) The lienholder and any person other than the trustee
 1097  may bid at the sale. In lieu of participating in the sale, the
 1098  lienholder may send the trustee written bidding instructions
 1099  that the trustee shall announce as appropriate during the sale.
 1100         (d) The trustee may postpone the sale. In such case, notice
 1101  of postponement must be given by the trustee at the date, time,
 1102  and location contained in the notice of sale. The notice of sale
 1103  for the postponed sale must be mailed under paragraph (6)(b),
 1104  recorded under paragraph (4)(f), and published under paragraph
 1105  (6)(d). The effective date of the initial notice of sale is not
 1106  affected by a postponed sale.
 1107         (e) The highest bidder of the timeshare interest shall pay
 1108  the price bid to the trustee in cash or certified funds on the
 1109  day of the sale. If the lienholder is the highest bidder, the
 1110  lienholder shall receive a credit up to the amount set forth in
 1111  the notice of sale as required under subparagraph (6)(a)6.
 1112         (f) On the date of the sale and upon receipt of the cash or
 1113  certified funds due from the highest bidder, the trustee shall
 1114  issue to the highest bidder a certificate of sale stating that a
 1115  foreclosure conforming to the requirements of this section has
 1116  occurred, including the time, location, and date of the sale,
 1117  that the timeshare interest was sold, the amounts secured by the
 1118  lien, and the amount of the highest bid. A copy of the
 1119  certificate of sale shall be mailed by certified mail,
 1120  registered mail, or permitted delivery service, return receipt
 1121  requested, to all persons entitled to receive a notice of sale
 1122  under subsection (6).
 1123         (g) Before a sale conducted pursuant to this subsection, a
 1124  junior interestholder may pursue adjudication by court, by
 1125  interpleader, or in any other authorized manner respecting any
 1126  matter that is disputed by the junior interestholder.
 1127         (8) EFFECT OF TRUSTEE’S SALE.—
 1128         (a) A sale conducted under subsection (7) forecloses and
 1129  terminates all interests of any person to whom notice is given
 1130  under paragraphs (4)(e) and (6)(b), and of any other person
 1131  claiming interests by, through, or under any such person, in the
 1132  affected timeshare interest. A failure to give notice to any
 1133  person entitled to notice does not affect the validity of the
 1134  sale as to the interests of any person properly notified. A
 1135  person entitled to notice but not given notice has the rights of
 1136  a person not made a defendant in a judicial foreclosure.
 1137         (b) All rights of redemption that have been foreclosed
 1138  under this section terminate on the issuance of a certificate of
 1139  sale under paragraph (7)(f).
 1140         (c) A sale conducted under subsection (7) releases the
 1141  obligor’s liability for all amounts secured by the lien. The
 1142  lienholder does not have a right to any deficiency judgment
 1143  against the obligor after a sale of the obligor’s timeshare
 1144  interest under this section.
 1145         (d) The issuance and recording of the trustee’s deed is
 1146  presumed valid and may be relied upon by third parties without
 1147  actual knowledge of any irregularities in the foreclosure
 1148  proceedings. If for any reason there is an irregularity in the
 1149  foreclosure proceedings, a purchaser becomes subrogated to all
 1150  the rights of the lienholder to the indebtedness that it secured
 1151  to the extent necessary to reforeclose the mortgage lien in
 1152  order to correct the irregularity and becomes entitled to an
 1153  action de novo for the foreclosure of such mortgage lien. Any
 1154  subsequent reforeclosure required to correct an irregularity may
 1155  be conducted under this section.
 1156         (9) TRUSTEE’S CERTIFICATE OF COMPLIANCE.—
 1157         (a) Within 10 calendar days after the trustee conducts a
 1158  sale, the trustee shall execute and acknowledge a certificate of
 1159  compliance which:
 1160         1. Confirms delivery of the notice of default and intent to
 1161  foreclose and attaches the affidavit required under subsection
 1162  (5).
 1163         2. States that the default was not cured, that the trustee
 1164  did not receive any written objection under paragraph (3)(a),
 1165  and that the timeshare interest was not redeemed under paragraph
 1166  (3)(b).
 1167         3. States that the trustee is in possession of the original
 1168  promissory note executed by the mortgagor and secured by the
 1169  mortgage lien.
 1170         4. Confirms that the notice of sale was published as
 1171  required under paragraph (6)(d) and attaches an affidavit of
 1172  publication for the notice of sale.
 1173         5. Confirms that the notice of sale was mailed under
 1174  paragraph (6)(b) together with a list of the parties to whom the
 1175  notice of sale was mailed.
 1176         (b) In furtherance of the execution of the certificate of
 1177  compliance required under this subsection, the trustee is
 1178  entitled to rely upon an affidavit or certification from the
 1179  lienholder as to the facts and circumstances of default and
 1180  failure to cure the default.
 1181         (10) TRUSTEE’S DEED.—
 1182         (a) The trustee’s deed must include the name and address of
 1183  the trustee, the name and address of the highest bidder, the
 1184  name of the former owner, a legal description of the timeshare
 1185  interest, and the name and address of the preparer of the
 1186  trustee’s deed. The trustee’s deed must recite that the
 1187  certificate of compliance was recorded and may not contain
 1188  warranties of title from the trustee. The certificate of
 1189  compliance must be attached as an exhibit to the trustee’s deed.
 1190         (b) Ten calendar days after a sale, absent the prior filing
 1191  and service on the trustee of a judicial action to enjoin
 1192  issuance of the trustee’s deed to the timeshare interest, the
 1193  trustee shall:
 1194         1. Cancel the original promissory note executed by the
 1195  mortgagor and secured by the mortgage lien.
 1196         2. Issue a trustee’s deed to the highest bidder.
 1197         3. Record the trustee’s deed in the official records of the
 1198  county or counties in which the timeshare interest is located.
 1199         (c) The certificate of compliance and trustee’s deed
 1200  together are presumptive evidence of the truth of the matters
 1201  set forth in them, and an action to set aside the sale and void
 1202  the trustee’s deed may not be filed or otherwise pursued against
 1203  any person acquiring the timeshare interest for value.
 1204         1. The trustee’s deed conveys to the highest bidder all
 1205  rights, title, and interest in the timeshare interest that the
 1206  former owner had, or had the power to convey, together with all
 1207  rights, title, and interest that the former owner or his or her
 1208  successors in interest acquired after the execution of the
 1209  mortgage.
 1210         2. The issuance and recording of a trustee’s deed has the
 1211  same force and effect as the issuance and recording of a
 1212  certificate of title by the clerk of the court in a judicial
 1213  foreclosure action.
 1214         (11) DISPOSITION OF PROCEEDS OF SALE.—
 1215         (a) The trustee shall apply the proceeds of the sale as
 1216  follows:
 1217         1. To the expenses of the sale, including compensation of
 1218  the trustee.
 1219         2. To the amount owed and set forth in the notice as
 1220  required under subparagraph (6)(a)6.
 1221         3. If there are junior interestholders, the trustee may
 1222  file an action in interpleader, pay the surplus to a court of
 1223  competent jurisdiction, name the competing junior
 1224  interestholders, and ask the court to determine the proper
 1225  distribution of the surplus. In any interpleader action, the
 1226  trustee shall recover reasonable attorney’s fees and costs.
 1227         4. If there are no junior interestholders, or if all junior
 1228  interestholders have been paid, any surplus shall be paid to the
 1229  former owner. If the trustee is unable to locate the former
 1230  owner within 1 year after the sale, the surplus, if any, shall
 1231  be deposited with the Chief Financial Officer under chapter 717.
 1232         (b) In disposing of the proceeds of the sale, the trustee
 1233  may rely on the information provided in the affidavit of the
 1234  lienholder under paragraph (2)(b), and if there is a dispute or
 1235  uncertainty over such claims, the trustee may submit the matter
 1236  to adjudication by court, by interpleader, or in any other
 1237  authorized manner and shall recover reasonable attorney’s fees
 1238  and costs.
 1239         (12) JUDICIAL FORECLOSURE ACTIONS.—The trustee foreclosure
 1240  procedure established in this section does not impair or
 1241  otherwise affect the lienholder’s continuing right to bring a
 1242  judicial foreclosure action, in lieu of using the trustee
 1243  foreclosure procedure, with respect to any mortgage lien.
 1244         (13) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
 1245  PROCEDURE.—An action for actual damages for a material violation
 1246  of this section may be brought by an obligor against the
 1247  lienholder for the failure to follow the trustee foreclosure
 1248  procedure contained in this section.
 1249         Section 11. Subsections (1) and (4) of section 721.86,
 1250  Florida Statutes, are amended to read:
 1251         721.86 Miscellaneous provisions.—
 1252         (1) If there is a conflict between the provisions of this
 1253  part and the other provisions of this chapter, chapter 702, or
 1254  other applicable law, the provisions of this part prevail. The
 1255  procedures in this part must be given effect in the context of
 1256  any foreclosure proceedings against timeshare interests estates
 1257  governed by this chapter, chapter 702, chapter 718, or chapter
 1258  719.
 1259         (4) In addition to assessment liens and mortgage liens
 1260  arising after the effective date of this part, except as
 1261  provided in s. 721.855(13), the provisions of this part apply to
 1262  all assessment liens and mortgage liens existing before prior to
 1263  the effective date of this act regarding which a foreclosure
 1264  proceeding has not yet commenced.
 1265         Section 12. Subsection (2) of section 721.20, Florida
 1266  Statutes, is amended to read:
 1267         721.20 Licensing requirements; suspension or revocation of
 1268  license; exceptions to applicability; collection of advance fees
 1269  for listings unlawful.—
 1270         (2) Solicitors who engage only in the solicitation of
 1271  prospective purchasers and any purchaser who refers no more than
 1272  20 people to a developer or managing entity per year or who
 1273  otherwise provides testimonials on behalf of a developer or
 1274  managing entity are exempt from the provisions of chapter 475.
 1275         Section 13. This act shall take effect upon becoming a law.