HB 799

1	A bill to be entitled
2	An act relating to nonjudicial foreclosure of commercial
3	real property; creating chapter 52, F.S., relating to
4	nonjudicial foreclosure of commercial real property;
5	providing a short title; providing for applicability of
6	provisions; providing definitions; providing for
7	appointment of a trustee; providing for trustee initiation
8	of foreclosure of mortgage liens; providing for objections
9	by obligors; providing for redemption of property;
10	providing requirements to be met before encumbered
11	property may be sold by trustee; providing for notice of
12	default and intent to foreclose; providing for notice and
13	manner of sale; specifying the effect of a sale; providing
14	for a trustee's certificate of compliance and deed;
15	providing for disposition of sale proceeds; providing that
16	provisions concerning the trustee foreclosure procedure do
17	not impair or otherwise affect a foreclosing creditor's
18	right to bring a judicial foreclosure action; providing
19	for civil actions against foreclosing creditors for
20	material failure to follow trustee foreclosure procedures;
21	providing criminal penalties for a trustee who
22	intentionally violates provisions concerning the trustee
23	foreclosure procedure; providing for construction;
24	providing for application of provisions to mortgage liens
25	existing prior to the effective date of this act for which
26	a foreclosure proceeding has not commenced; providing a
27	directive to the Division of Statutory Revision; providing
28	an effective date.
29
30	Be It Enacted by the Legislature of the State of Florida:
31
32	Section 1.  Chapter 52, Florida Statutes, consisting of
33	sections 52.101, 502.102, 52.103, and 52.104, is created to
34	read:
35	CHAPTER 52
36	NONJUDICIAL FORECLOSURE OF COMMERCIAL REAL PROPERTY
37	52.101  Short title; applicability.-
38	(1)  This chapter may be cited as the "Nonjudicial
39	Foreclosure of Commercial Real Property Act."
40	(2)  In lieu of any other foreclosure remedy that may be
41	available under the laws of this state within the judicial
42	system, this chapter may, at the option of the foreclosing
43	creditor, be used to effect a foreclosure of a security
44	instrument in commercial real property. However, if the
45	foreclosing creditor does not elect to use this chapter to
46	effect a foreclosure, this chapter does not modify any other
47	foreclosure remedy available to the foreclosing creditor under
48	the laws of this state.
49	52.102  Definitions.-As used in this chapter, the term:
50	(1)  "Commercial real property" means real property that,
51	when a security instrument is entered into, is used or is
52	intended by its owner to be used other than for the personal,
53	family, or household purposes of its owner. Residential real
54	property on which the borrower resides is deemed commercial if
55	it is improved, or is intended by its owner to be improved, to
56	have more than four additional dwelling units.
57	(2)  "Debtor" means a person who is obligated, primarily or
58	secondarily, on an obligation secured in whole or in part by
59	commercial real property.
60	(3)  "Foreclosing creditor" means a secured creditor who is
61	engaged in a foreclosure under this chapter.
62	(4)  "Interest holder" means a person who holds a
63	possessory interest, other than a leasehold interest with a
64	duration of 1 year or less, in nonresidential real property in
65	which a security interest exists.
66	(5)  "Junior interest holder" means a person who owns a
67	legally recognized interest in real or personal property that is
68	subordinate in priority to a security interest foreclosed under
69	this chapter.
70	(6)  "Nonresidential real property" means commercial real
71	property.
72	(7)  "Obligor" means a person who owes payment or other
73	performance of an obligation, whether absolute or conditional,
74	primary or secondary, secured under a security instrument,
75	whether or not the security instrument imposes personal
76	liability on the obligor. The term does not include a person
77	whose sole interest in the property is a security interest.
78	(8)  "Personalty and fixtures" means any personal property
79	or fixtures located on or within or affixed to a commercial real
80	property and pledged as collateral for the credit facility in
81	default. To the extent the lender has a perfected security
82	interest in such collateralized personalty and fixtures, such
83	property shall be encompassed by the term "commercial real
84	property" and the security interest in such property shall be
85	foreclosed in the manner set forth in this chapter.
86	(9)  "Real property" means any estate or interest in, over,
87	or under land, including minerals, structures, fixtures, and
88	other things that by custom, usage, or law pass with a
89	conveyance of land though not described or mentioned in the
90	contract of sale or instrument of conveyance. The term includes
91	the interest of a landlord or tenant and, unless under the law
92	of the state in which the property is located that interest is
93	personal property, an interest in a common interest community.
94	(10)  "Secured creditor" means a creditor that has the
95	right to foreclose a security interest in real property under
96	this chapter.
97	(11)  "Security instrument" means a mortgage, deed of
98	trust, security deed, contract for deed, agreement for deed,
99	land sale contract, lease creating a security interest, or other
100	contract or conveyance that creates or provides for an interest
101	in real property to secure payment or performance of an
102	obligation, whether by acquisition or retention of a lien, a
103	lessor's interest under a lease, or title to the real property.
104	A security instrument may also create a security interest in
105	personal property. If a security instrument makes a default
106	under any other agreement a default under the security
107	instrument, the security instrument includes the other
108	agreement. The term includes any modification or amendment of a
109	security instrument, and includes a lien on real property
110	created by a record to secure an obligation owed by an owner of
111	the real property to an association in a common interest
112	community or under covenants running with the real property.
113	(12)  "Security interest" means an interest in real or
114	personal property that secures payment or performance of an
115	obligation.
116	(13)  "Trustee" means an attorney who is a member in good
117	standing of The Florida Bar and who has been practicing law for
118	at least 5 years or that attorney's law firm, or a title insurer
119	who is authorized to transact business in this state under s.
120	624.401 and who has been authorized to transact business for at
121	least 5 years.
122	52.103  Procedure for trustee foreclosure of mortgage
123	lien.-This section establishes a trustee foreclosure procedure
124	for mortgage liens and security interests in personalty and
125	fixtures collateralizing the same obligation for which the
126	mortgage was given.
127	(1)  APPOINTMENT OF TRUSTEE.-
128	(a)  A trustee or a substitute trustee may be appointed by
129	a foreclosing creditor at any time by recording a notice of
130	appointment of trustee or notice of substitution of trustee in
131	the official records of the county or counties in which the
132	commercial real property is located. A foreclosing creditor may
133	appoint multiple trustees in a single appointment and any
134	appointed trustee may be used by the foreclosing creditor
135	regarding the trustee foreclosure of any mortgage lien.
136	(b)  A trustee shall use good faith, skill, care, and
137	diligence in discharging all of the trustee duties under this
138	section and shall deal honestly and fairly with all parties.
139	(c)  The recorded notice of appointment of trustee or
140	notice of substitution of trustee shall contain the name and
141	address of the trustee or substitute trustee and the name and
142	address of the foreclosing creditor.
143	(2)  INITIATING TRUSTEE FORECLOSURE OF MORTGAGE LIENS.-
144	(a)  Before initiating the trustee foreclosure against
145	commercial real property, the mortgage or an amendment to a
146	mortgage executed by the obligor before the effective date of
147	this section must contain a statement in substantially the
148	following form:
149
150	If the mortgagor (which term shall include the original
151	mortgagor's successors or assigns) fails to make timely
152	payments under the obligation secured by this mortgage, or
153	is otherwise deemed in uncured default of this mortgage,
154	the lien against the mortgagor's commercial real property
155	created by this mortgage may be foreclosed in accordance
156	with either a judicial foreclosure procedure or a trustee
157	foreclosure procedure and may result in the loss of your
158	commercial real property. If the mortgagee initiates a
159	trustee foreclosure procedure, the mortgagor has the option
160	to object and the mortgagee may proceed only by filing a
161	judicial foreclosure action.
162
163	(b)  In order to initiate a trustee foreclosure procedure
164	against commercial real property, the foreclosing creditor shall
165	deliver to the trustee an affidavit sworn to, under penalties of
166	perjury, by the creditor that identifies the obligor, the notice
167	address of the obligor, the commercial real property, the
168	official records book and page number in which the mortgage is
169	recorded, the personalty and fixtures and the information
170	regarding perfection of the security interest in such property,
171	and the name and notice address of any holder of a junior
172	interest in any collateral subject to foreclosure. The affidavit
173	shall be accompanied by a title search of the commercial real
174	property identifying any junior interest holders of record and a
175	lien search, and the effective date of the title search and the
176	lien search must be a date that is within 60 calendar days
177	before the date of the affidavit. The affidavit shall also:
178	1.  State the facts that establish that the obligor has
179	defaulted in the obligation to make a payment under a specified
180	provision of the mortgage or is otherwise deemed in uncured
181	default under a specified provision of the mortgage.
182	2.  Specify the amounts secured by the lien as of the date
183	of the affidavit and a per diem amount to account for further
184	accrual of the amounts secured by the lien.
185	3.  State that the appropriate amount of documentary stamp
186	tax and intangible taxes has been paid upon recording of the
187	mortgage or otherwise paid to the state.
188	4.  State that the foreclosing creditor is the holder of
189	the note and has complied with all preconditions in the note and
190	mortgage to determine the amounts secured by the lien and to
191	initiate the use of the trustee foreclosure procedure.
192	(3)  OBLIGOR'S RIGHTS.-
193	(a)  The obligor may object to the foreclosing creditor's
194	use of the trustee foreclosure procedure for a specific default
195	within 15 business days after receipt of notice by sending a
196	written objection to the trustee using the objection form
197	provided for in subsection (5), and the foreclosing creditor may
198	proceed thereafter only with a judicial foreclosure action as to
199	that specified default.
200	(b)  At any time before the trustee issues the certificate
201	of sale under paragraph (7)(f), the obligor may redeem the
202	commercial real property by paying the amounts secured by the
203	lien in cash or certified funds to the trustee. After the
204	trustee issues the certificate of sale, there is no right of
205	redemption.
206	(4)  CONDITIONS TO TRUSTEE'S EXERCISE OF POWER OF SALE.-A
207	trustee may sell an encumbered commercial real property
208	foreclosed under this section if:
209	(a)  The trustee has received the affidavit from the
210	foreclosing creditor under paragraph (2)(b).
211	(b)  The trustee has not received a written objection to
212	the use of the trustee foreclosure procedure under paragraph
213	(3)(a).
214	(c)  The commercial real property was not redeemed under
215	paragraph (3)(b).
216	(d)  There is no lis pendens recorded and pending against
217	the same commercial real property.
218	(e)  The trustee is in possession of the original
219	promissory note and all renewals, modifications, or other
220	renegotiations thereof then in effect executed by the mortgagor
221	and secured by the mortgage lien.
222	(f)  The trustee has provided written notice of default and
223	intent to foreclose as required under subsection (5) and a
224	period of at least 30 calendar days has elapsed after the notice
225	is deemed perfected under subsection (5).
226	(g)  The notice of sale required under subsection (6) has
227	been recorded in the official records of the county in which the
228	mortgage was recorded.
229	(5)  NOTICE OF DEFAULT AND INTENT TO FORECLOSE.-
230	(a)  In any foreclosure proceeding under this section, the
231	trustee is required to notify the obligor of the proceeding by
232	sending the obligor a written notice of default and intent to
233	foreclose to the notice address of the obligor by certified
234	mail, commercial delivery service, or delivery service permitted
235	by the agreement between the mortgagor and the mortgagee, return
236	receipt requested, and by first-class mail or permitted delivery
237	service, postage prepaid, as follows:
238	1.  The notice of default and intent to foreclose shall
239	identify the obligor, the notice address of the obligor, the
240	legal description of the commercial real property, the nature of
241	the default, the amounts secured by the lien, and a per diem
242	amount to account for further accrual of the amounts secured by
243	the lien and shall state the method by which the obligor may
244	cure the default, including the period of time after the date of
245	the notice of default and intent to foreclose within which the
246	obligor may cure the default.
247	2.  The notice of default and intent to foreclose shall
248	include an objection form with which the obligor can notify the
249	trustee that the obligor objects to the use of the trustee
250	foreclosure procedure by signing and returning the objection
251	form to the trustee. The objection form shall identify the
252	obligor, the notice address of the obligor, the commercial real
253	property, and the return address of the trustee and shall state:
254
255	The undersigned obligor exercises the obligor's right to
256	object to the use of the trustee foreclosure procedure
257	contained in section 52.103, Florida Statutes.
258
259	The objection is not effective unless notarized and sworn to
260	under penalty of perjury.
261	3.  The notice of default and intent to foreclose shall
262	also contain a statement in substantially the following form:
263
264	If you fail to cure the default as set forth in this notice
265	or take other appropriate action with regard to this
266	foreclosure matter, you risk losing ownership of your
267	commercial real property through the trustee foreclosure
268	procedure established in section 52.103, Florida Statutes.
269	You may choose to sign and send to the trustee the enclosed
270	objection form notifying him or her of your objection to
271	proceeding nonjudicially. You have the right to cure your
272	default in the manner set forth in this notice at any time
273	before the trustee's sale of your commercial real property.
274	You may be responsible for the difference between the
275	amount for which the trustee can sell the property and the
276	amount you still owe under the mortgage. A deficiency may
277	only be established in a court of law in a proceeding
278	separate from the trustee's foreclosure. In any such
279	proceeding, you will be allowed to raise the sufficiency of
280	the trustee's sale price as a defense to the deficiency.
281
282	4.  The trustee shall also mail a copy of the notice of
283	default and intent to foreclose, without the objection form, to
284	the notice address of any junior interest holder by certified
285	mail, registered mail, or permitted delivery service, return
286	receipt requested, and by first-class mail or permitted delivery
287	service, postage prepaid.
288	5.  Notice under this paragraph is considered perfected
289	upon the trustee receiving the return receipt bearing the
290	signature of the obligor or junior interest holder, as
291	applicable, within 30 calendar days after the trustee sent the
292	notice under this paragraph. Notice under this paragraph is not
293	perfected if the notice is returned as undeliverable within 30
294	calendar days after the trustee sent the notice, if the trustee
295	cannot ascertain from the receipt that the obligor or junior
296	interest holder, as applicable, is the person who signed the
297	receipt, or if the receipt from the obligor or junior interest
298	holder, as applicable, is returned or refused within 30 calendar
299	days after the trustee sent the notice.
300	(b)  If the notice required by paragraph (a) is returned as
301	undeliverable within 30 calendar days after the trustee sent the
302	notice, the trustee shall perform a diligent search and inquiry
303	to obtain a different address for the obligor or junior interest
304	holder. For purposes of this paragraph, any address known and
305	used by the foreclosing creditor for sending regular mailings or
306	other communications from the foreclosing creditor to the
307	obligor or junior interest holder, as applicable, shall be
308	included with other addresses produced from the diligent search
309	and inquiry, if any.
310	1.  If the trustee's diligent search and inquiry produces
311	an address different from the notice address, the trustee shall
312	mail a copy of the notice by certified mail, registered mail, or
313	permitted delivery service, return receipt requested, and by
314	first-class mail or permitted delivery service, postage prepaid,
315	to the new address. Notice under this subparagraph is considered
316	perfected upon the trustee receiving the return receipt bearing
317	the signature of the obligor or junior interest holder, as
318	applicable, within 30 calendar days after the trustee sent the
319	notice under this subparagraph. Notice under this subparagraph
320	is not perfected if the trustee cannot ascertain from the
321	receipt that the obligor or junior interest holder, as
322	applicable, is the person who signed the receipt or the receipt
323	from the obligor or junior interest holder, as applicable, is
324	returned refused. If the trustee does not perfect notice under
325	this subparagraph, the trustee shall perfect service as provided
326	in paragraph (c).
327	2.  If the trustee's diligent search and inquiry does not
328	locate a different address for the obligor or junior interest
329	holder, as applicable, the trustee may perfect notice against
330	that person as provided in paragraph (c).
331	(c)  If the notice is not perfected under subparagraph
332	(a)5. and such notice was not returned as undeliverable, or if
333	the notice was not perfected under subparagraph (b)1., the
334	trustee may perfect notice by publication in a newspaper of
335	general circulation in the county or counties in which the
336	commercial real property is located. The notice shall appear at
337	least once a week for 2 consecutive weeks. Notice under this
338	paragraph is considered perfected upon completion of publication
339	as required in this paragraph.
340	(d)  If notice is perfected under paragraph (a), the
341	trustee shall execute an affidavit in recordable form setting
342	forth the manner in which notice was perfected and attach the
343	affidavit to the certificate of compliance set forth in
344	subsection (9). The affidavit shall state the nature of the
345	notice, the date on which the notice was mailed, the name and
346	address on the envelope containing the notice, the manner in
347	which the notice was mailed, and the basis for that knowledge.
348	(e)  If notice is perfected under paragraph (b), the
349	trustee shall execute an affidavit in recordable form setting
350	forth the manner in which notice was perfected and attach the
351	affidavit to the certificate of compliance set forth in
352	subsection (9). The affidavit shall state the nature of the
353	notice, the dates on which the notice was mailed, the name and
354	addresses on the envelopes containing the notice, the manner in
355	which the notice was mailed, the fact that a signed receipt from
356	the certified mail, registered mail, or permitted delivery
357	service was timely received, and the name and address on the
358	envelopes containing the notice.
359	(f)  If notice is perfected under paragraph (c), the
360	trustee shall execute an affidavit in recordable form setting
361	forth the manner in which notice was perfected and attach the
362	affidavit to the certificate of compliance set forth in
363	subsection (9). The affidavit shall include all the information
364	contained in either paragraph (d) or paragraph (e), as
365	applicable, shall state that the notice was perfected by
366	publication after diligent search and inquiry was made for the
367	current address for the person, shall include a statement that
368	notice was perfected by publication, and shall set forth the
369	information required by s. 49.041 in the case of a natural
370	person or s. 49.051 in the case of a corporation, whichever is
371	applicable. No other action of the trustee is necessary to
372	perfect notice.
373	(6)  NOTICE OF SALE.-
374	(a)  The notice of sale shall set forth:
375	1.  The name and notice addresses of the obligor and any
376	junior interest holder.
377	2.  The legal description of the commercial real property
378	and a list of all personalty and fixtures.
379	3.  The name and address of the trustee.
380	4.  A description of the default that is the basis for the
381	foreclosure.
382	5.  The official records book and page numbers in which the
383	mortgage is recorded.
384	6.  The amounts secured by the lien and a per diem amount
385	to account for further accrual of the amounts secured by the
386	lien.
387	7.  The date, location, and starting time of the trustee's
388	sale.
389	8.  The right of and the method by which the obligor may
390	redeem the collateral or the right of any junior interest holder
391	to redeem its interest up to the date the trustee issues the
392	certificate of sale in accordance with paragraph (7)(f).
393	(b)  The trustee shall send a copy of the notice of sale
394	within 3 business days after the date it is submitted for
395	recording by first-class mail or permitted delivery service,
396	postage prepaid, to the notice addresses of the obligor and any
397	junior interest holder.
398	(c)  After the date of recording of the notice of sale,
399	notice is not required to be given to any person claiming an
400	interest in the commercial real property except as provided in
401	this section. The recording of the notice of sale has the same
402	force and effect as the filing of a lis pendens in a judicial
403	proceeding under s. 48.23.
404	(d)  The trustee shall publish the notice of sale in a
405	newspaper of general circulation in the county or counties in
406	which the commercial real property is located at least once a
407	week for 2 consecutive weeks before the date of the sale. The
408	last publication shall occur at least 5 calendar days before the
409	sale.
410	(7)  MANNER OF SALE.-
411	(a)  The sale of foreclosed commercial real property by the
412	trustee in a public auction shall be held in the county in which
413	the commercial real property is located on the date, location,
414	and starting time designated in the notice of sale, which shall
415	be after 9 a.m. but before 4 p.m. on a business day not less
416	than 30 calendar days after the recording of the notice of sale.
417	The trustee's sale may occur online at a specific website on the
418	Internet or in any other manner used by the clerk of the court
419	for a judicial foreclosure sales procedure in the county or
420	counties in which the commercial real property is located.
421	(b)  The trustee shall conduct the sale and may act as the
422	auctioneer.
423	(c)  The foreclosing creditor and any person other than the
424	trustee may bid at the sale. In lieu of participating in the
425	sale, the foreclosing creditor may send the trustee written
426	bidding instructions that the trustee shall announce as
427	appropriate during the sale.
428	(d)  The trustee may postpone the sale from time to time.
429	In such case, notice of postponement must be given by the
430	trustee at the date, time, and location contained in the notice
431	of sale. The notice of sale for the postponed sale shall be
432	mailed as provided in paragraph (6)(b), recorded as provided in
433	paragraph (4)(g), and published as provided in paragraph (6)(d).
434	The effective date of the initial notice of sale as provided in
435	paragraph (6)(b) is not affected by a postponed sale.
436	(e)  The highest bidder of the commercial real property
437	shall pay the price bid to the trustee in cash or certified
438	funds on the day of the sale. If the foreclosing creditor is the
439	highest bidder, the foreclosing creditor shall receive a credit
440	in the amount of the high bid up to the amount set forth in the
441	notice of sale as provided in subparagraph (6)(a)6.
442	(f)  On the date of the sale and upon receipt of the cash
443	or certified funds due from the highest bidder, the trustee
444	shall issue to the highest bidder a certificate of sale stating
445	that a foreclosure conforming to the requirements of this
446	section has occurred, including the time, location, and date of
447	the sale, that the foreclosed commercial real property was sold,
448	the amounts secured by the lien, and the amount of the highest
449	bid. A copy of the certificate of sale shall be mailed by
450	certified mail, registered mail, or permitted delivery service,
451	return receipt requested, to all persons entitled to receive a
452	notice of sale under subsection (6).
453	(g)  Before a sale is conducted pursuant to this
454	subsection, a junior interest holder may pursue adjudication by
455	court, by interpleader, or in any other authorized manner
456	reflecting any matter that is disputed by the junior interest
457	holder.
458	(8)  EFFECT OF TRUSTEE'S SALE.-
459	(a)  A sale conducted under subsection (7) forecloses and
460	terminates all interests of any person with notice to whom
461	notice is given under subsection (5) and paragraph (6)(b), and
462	of any other person claiming interests by, through, or under any
463	such person, in the affected commercial real property. A failure
464	to give notice to any person entitled to notice does not affect
465	the validity of the sale as to the interests of any person
466	properly notified. A person entitled to notice but not given
467	notice has the rights of a person not made a defendant in a
468	judicial foreclosure.
469	(b)  Upon issuance of a certificate of sale under paragraph
470	(7)(f), all rights of redemption that have been foreclosed under
471	this section shall terminate.
472	(c)  The foreclosing creditor may seek a deficiency
473	judgment against the debtor in a judicial proceeding subsequent
474	to the foreclosure sale. The debtor may raise the adequacy of
475	the price obtained at the foreclosure sale as a defense to all
476	or part of the deficiency, but has the burden of proof as to the
477	alleged inadequacy.
478	(d)  The issuance and recording of the trustee's deed is
479	presumed valid and may be relied upon by third parties without
480	actual knowledge of any irregularities in the foreclosure
481	proceedings. If for any reason there is an irregularity in the
482	foreclosure proceedings, a purchaser becomes subrogated to
483	rights of the foreclosing creditor to the indebtedness that it
484	secured to the extent necessary to reforeclose the mortgage lien
485	in order to correct the irregularity and becomes entitled to an
486	action de novo for the foreclosure of such mortgage lien. Any
487	subsequent reforeclosure required to correct an irregularity may
488	be conducted as provided in this section.
489	(9)  TRUSTEE'S CERTIFICATE OF COMPLIANCE.-
490	(a)  Within 10 calendar days after the trustee conducts a
491	sale, the trustee shall execute and acknowledge a certificate of
492	compliance that:
493	1.  Confirms delivery of the notice of default and intent
494	to foreclose and attaches the affidavit required under
495	subsection (5).
496	2.  States that the default was not cured, that the trustee
497	did not receive any written objection under paragraph (3)(a),
498	and that the commercial real property was not redeemed under
499	paragraph (3)(b).
500	3.  States that the trustee is in possession of the
501	original promissory note executed by the mortgagor and secured
502	by the mortgage lien.
503	4.  Confirms that the notice of sale was published as
504	required in paragraph (6)(d) and attaches an affidavit of
505	publication for the notice of sale.
506	5.  Confirms that the notice of sale was mailed as required
507	in paragraph (6)(b) together with a list of the parties to whom
508	the notice of sale was mailed.
509	(b)  In furtherance of the execution of the certificate of
510	compliance required under this subsection, the trustee may rely
511	upon an affidavit or certification from the foreclosing creditor
512	as to the facts and circumstances of default and failure to cure
513	the default.
514	(10)  TRUSTEE'S DEED.-
515	(a)  The trustee's deed shall include the name and address
516	of the trustee, the name and address of the highest bidder, the
517	name of the former owner, a legal description of the commercial
518	real property, and the name and address of the preparer of the
519	trustee's deed. The trustee's deed may not contain any
520	warranties of title from the trustee. The certificate of
521	compliance shall be attached as an exhibit to the trustee's
522	deed.
523	(b)  Ten calendar days after a sale, absent the prior
524	filing and service on the trustee of a judicial action to enjoin
525	issuance of the trustee's deed to the commercial real property,
526	the trustee shall:
527	1.  Cancel the original promissory note executed by the
528	mortgagor and secured by the mortgage lien.
529	2.  Issue a trustee's deed to the highest bidder or the
530	highest bidder's assignee.
531	3.  Record the trustee's deed in the official records of
532	the county or counties in which the commercial real property is
533	located.
534	(c)1.  The certificate of compliance and trustee's deed
535	together are presumptive evidence of the truth of the matters
536	set forth in them, and an action to set aside the sale and void
537	the trustee's deed may not be filed or otherwise pursued against
538	any person acquiring the commercial real property for value.
539	2.  The trustee's deed conveys to the highest bidder or its
540	assignee all rights, title, and interest in the commercial real
541	property and personalty and fixtures that the former owner had,
542	or had the power to convey, together with all rights, title, and
543	interest that the former owner or his or her successors in
544	interest acquired after the execution of the mortgage.
545	3.  The issuance and recording of a trustee's deed has the
546	same force and effect as the issuance and recording of a
547	certificate of title by the clerk of the court in a judicial
548	foreclosure action.
549	(11)  DISPOSITION OF PROCEEDS OF SALE.-
550	(a)  The trustee shall apply the proceeds of the sale as
551	follows:
552	1.  To the expenses of the sale, including compensation of
553	the trustee.
554	2.  To the amount owed and set forth in the notice as
555	required under subparagraph (6)(a)6.
556	3.  If there are junior interest holders, the trustee may
557	file an action in interpleader, pay the surplus to a court of
558	competent jurisdiction, name the competing junior interest
559	holders, and ask the court to determine the proper distribution
560	of the surplus. In an interpleader action, the trustee shall
561	recover reasonable attorney's fees and costs.
562	4.  If there are no junior interest holders, or if all
563	junior interest holders have been paid, any surplus shall be
564	paid to the former owner. If the trustee is unable to locate the
565	former owner within 1 year after the sale, the surplus, if any,
566	shall be deposited with the Chief Financial Officer as provided
567	in chapter 717.
568	(b)  In disposing of the proceeds of the sale, the trustee
569	may rely on the information provided in the affidavit of the
570	foreclosing creditor under paragraph (2)(b) and, in the event of
571	a dispute or uncertainty over such claims, the trustee has the
572	discretion to submit the matter to adjudication by court, by
573	interpleader, or in any other authorized manner and shall
574	recover reasonable attorney's fees and costs.
575	(12)  JUDICIAL FORECLOSURE ACTIONS.-The trustee foreclosure
576	procedure established in this section does not impair or
577	otherwise affect the foreclosing creditor's continuing right to
578	bring a judicial foreclosure action, in lieu of using the
579	trustee foreclosure procedure, with respect to any mortgage
580	lien.
581	(13)  ACTIONS FOR FAILURE TO FOLLOW TRUSTEE FORECLOSURE
582	PROCEDURE.-
583	(a)  An action for actual damages for a material violation
584	of this section may be brought by an obligor against the
585	foreclosing creditor for the failure to follow the trustee
586	foreclosure procedure contained in this section.
587	(b)  Any trustee who intentionally violates the provisions
588	of this section concerning the trustee foreclosure procedure
589	commits a felony of the third degree, punishable as provided in
590	s. 775.082, s. 775.083, or s. 775.084.
591	52.104  Miscellaneous provisions.-
592	(1)  In the event of a conflict between the provisions of
593	this chapter and chapter 702 or other applicable law, the
594	provisions of this chapter prevail. The procedures in this
595	chapter must be given effect in the context of any foreclosure
596	proceedings against commercial real properties governed by this
597	chapter, chapter 702, chapter 718, or chapter 719.
598	(2)  In addition to assessment liens and mortgage liens
599	arising after the effective date of this act, this chapter
600	applies to all mortgage liens existing prior to the effective
601	date of this act for which a foreclosure proceeding has not yet
602	commenced.
603	Section 2.  The Division of Statutory Revision is directed
604	to replace the phrase "the effective date of this act" wherever
605	it occurs in this act with the date this act becomes a law.
606	Section 3.  This act shall take effect July 1, 2011.

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