Florida Senate - 2013 SB 696
By Senator Stargel
15-00430A-13 2013696__
1 A bill to be entitled
2 An act relating to vacation and time share plans;
3 amending s. 718.112, F.S.; exempting associations that
4 govern a timeshare condominium from the prohibition of
5 using proxies for electing members of the board;
6 amending s. 721.07, F.S.; revising the formula to
7 calculate the reserves for any accommodations and
8 facilities of real property time share plans; amending
9 s. 721.82, F.S.; revising the definition of the terms
10 “notice address,” “obligor,” and “permitted delivery
11 service”; amending s. 721.84, F.S.; making technical
12 changes; amending s. 721.855, F.S.; removing a
13 provision that requires a title search to accompany
14 the affidavit initiating a trustee foreclosure
15 proceeding of assessment liens; revising conditions to
16 a trustee’s exercise of power of sale relating to lis
17 pendens; providing that a trustee may sell a timeshare
18 interest if the lienholder delivers a certain title
19 search which identifies junior interestholders of
20 record; providing conditions when the foreclosure may
21 not proceed; removing reference to an alternative to
22 first-class mail for service of notice; revising
23 criteria when notice of a foreclosure proceeding is
24 not perfected; revising the criteria for perfecting
25 notice of foreclosure by publication in a newspaper;
26 revising criteria that must be included in an
27 affidavit certifying notice was perfected by
28 publication; providing additional criteria for
29 perfecting notice; providing the notice of sale has
30 certain force and effect if a notice of lis pendens
31 was not previously recorded; allowing a trustee under
32 certain conditions to use a third party to conduct a
33 sale; providing a trustee an exception for certain
34 violations of the trustee foreclosure procedures of
35 assessment liens; amending s. 721.856, F.S.; removing
36 a provision that requires a title search to accompany
37 the affidavit initiating a trustee foreclosure
38 proceeding of mortgage liens; revising conditions to a
39 trustee’s exercise of power of sale relating to lis
40 pendens; providing that a trustee may sell a timeshare
41 interest if the lienholder delivers a certain title
42 search which identifies junior interestholders of
43 record; providing conditions when the foreclosure may
44 not proceed; removing reference to an alternative to
45 first-class mail for service of notice; revising
46 criteria when notice of a foreclosure proceeding is
47 not perfected; revising the criteria for perfecting
48 notice of foreclosure by publication in a newspaper;
49 revising criteria that must be included in an
50 affidavit certifying notice was perfected by
51 publication; providing additional criteria for
52 perfecting notice; providing the notice of sale has
53 certain force and effect if a notice of lis pendens
54 was not previously recorded; allowing a trustee under
55 certain conditions to use a third party to conduct a
56 sale; providing a trustee an exception for certain
57 violations of the trustee foreclosure procedures of
58 mortgage liens; providing an effective date.
59
60 Be It Enacted by the Legislature of the State of Florida:
61
62 Section 1. Paragraph (d) of subsection (2) of section
63 718.112, Florida Statutes, is amended to read:
64 718.112 Bylaws.—
65 (2) REQUIRED PROVISIONS.—The bylaws shall provide for the
66 following and, if they do not do so, shall be deemed to include
67 the following:
68 (d) Unit owner meetings.—
69 1. An annual meeting of the unit owners must shall be held
70 at the location provided in the association bylaws and, if the
71 bylaws are silent as to the location, the meeting must shall be
72 held within 45 miles of the condominium property. However, such
73 distance requirement does not apply to an association governing
74 a timeshare condominium.
75 2. Unless the bylaws provide otherwise, a vacancy on the
76 board caused by the expiration of a director’s term must shall
77 be filled by electing a new board member, and the election must
78 be by secret ballot. An election is not required if the number
79 of vacancies equals or exceeds the number of candidates. For
80 purposes of this paragraph, the term “candidate” means an
81 eligible person who has timely submitted the written notice, as
82 described in sub-subparagraph 4.a., of his or her intention to
83 become a candidate. Except in a timeshare condominium, or if the
84 staggered term of a board member does not expire until a later
85 annual meeting, or if all members’ terms would otherwise expire
86 but there are no candidates, the terms of all board members
87 expire at the annual meeting, and such members may stand for
88 reelection unless prohibited by the bylaws. If the bylaws permit
89 staggered terms of no more than 2 years and upon approval of a
90 majority of the total voting interests, the association board
91 members may serve 2-year staggered terms. If the number of board
92 members whose terms expire at the annual meeting equals or
93 exceeds the number of candidates, the candidates become members
94 of the board effective upon the adjournment of the annual
95 meeting. Unless the bylaws provide otherwise, any remaining
96 vacancies shall be filled by the affirmative vote of the
97 majority of the directors making up the newly constituted board
98 even if the directors constitute less than a quorum or there is
99 only one director. In a condominium association of more than 10
100 units or in a condominium association that does not include
101 timeshare units or timeshare interests, coowners of a unit may
102 not serve as members of the board of directors at the same time
103 unless they own more than one unit or unless there are not
104 enough eligible candidates to fill the vacancies on the board at
105 the time of the vacancy. Any unit owner who desires desiring to
106 be a candidate for board membership must comply with sub
107 subparagraph 4.a. and must be eligible to serve on the board of
108 directors at the time of the deadline for submitting a notice of
109 intent to run in order to have his or her name listed as a
110 proper candidate on the ballot or to serve on the board. A
111 person who has been suspended or removed by the division under
112 this chapter, or who is delinquent in the payment of any fee,
113 fine, or special or regular assessment as provided in paragraph
114 (n), is not eligible for board membership. A person who has been
115 convicted of any felony in this state or in a United States
116 District or Territorial Court, or who has been convicted of any
117 offense in another jurisdiction which would be considered a
118 felony if committed in this state, is not eligible for board
119 membership unless such felon’s civil rights have been restored
120 for at least 5 years before as of the date such person seeks
121 election to the board. The validity of an action by the board is
122 not affected if it is later determined that a board member is
123 ineligible for board membership due to having been convicted of
124 a felony.
125 3. The bylaws must provide the method of calling meetings
126 of unit owners, including annual meetings. Written notice must
127 include an agenda, must be mailed, hand delivered, or
128 electronically transmitted to each unit owner at least 14 days
129 before the annual meeting, and must be posted in a conspicuous
130 place on the condominium property at least 14 continuous days
131 before the annual meeting. Upon notice to the unit owners, the
132 board shall, by duly adopted rule, designate a specific location
133 on the condominium property or association property where all
134 notices of unit owner meetings shall be posted. This requirement
135 does not apply if there is no condominium property or
136 association property for posting notices. In lieu of, or in
137 addition to, the physical posting of meeting notices, the
138 association may, by reasonable rule, adopt a procedure for
139 conspicuously posting and repeatedly broadcasting the notice and
140 the agenda on a closed-circuit cable television system serving
141 the condominium association. However, if broadcast notice is
142 used, the notice and agenda must be broadcast at least four
143 times every broadcast hour of each day that a posted notice is
144 otherwise required under this section. If broadcast notice is
145 provided, the notice and agenda must be broadcast in a manner
146 and for a sufficient continuous length of time so as to allow an
147 average reader to observe the notice and read and comprehend the
148 entire content of the notice and the agenda. Unless a unit owner
149 waives in writing the right to receive notice of the annual
150 meeting, such notice must be hand delivered, mailed, or
151 electronically transmitted to each unit owner. Notice for
152 meetings and notice for all other purposes must be mailed to
153 each unit owner at the address last furnished to the association
154 by the unit owner, or hand delivered to each unit owner.
155 However, if a unit is owned by more than one person, the
156 association must provide notice to the address that the
157 developer identifies for that purpose and thereafter as one or
158 more of the owners of the unit advise the association in
159 writing, or if no address is given or the owners of the unit do
160 not agree, to the address provided on the deed of record. An
161 officer of the association, or the manager or other person
162 providing notice of the association meeting, must provide an
163 affidavit or United States Postal Service certificate of
164 mailing, to be included in the official records of the
165 association affirming that the notice was mailed or hand
166 delivered in accordance with this provision.
167 4. The members of the board shall be elected by written
168 ballot or voting machine. Proxies may not be used in electing
169 the board in general elections or elections to fill vacancies
170 caused by recall, resignation, or otherwise, unless otherwise
171 provided in this chapter. This subparagraph does not apply to an
172 association governing a timeshare condominium.
173 a. At least 60 days before a scheduled election, the
174 association shall mail, deliver, or electronically transmit, by
175 separate association mailing or included in another association
176 mailing, delivery, or transmission, including regularly
177 published newsletters, to each unit owner entitled to a vote, a
178 first notice of the date of the election. Any unit owner or
179 other eligible person desiring to be a candidate for the board
180 must give written notice of his or her intent to be a candidate
181 to the association at least 40 days before a scheduled election.
182 Together with the written notice and agenda as set forth in
183 subparagraph 3., the association shall mail, deliver, or
184 electronically transmit a second notice of the election to all
185 unit owners entitled to vote, together with a ballot that lists
186 all candidates. Upon request of a candidate, an information
187 sheet, no larger than 8 1/2 inches by 11 inches, which must be
188 furnished by the candidate at least 35 days before the election,
189 must be included with the mailing, delivery, or transmission of
190 the ballot, with the costs of mailing, delivery, or electronic
191 transmission and copying to be borne by the association. The
192 association is not liable for the contents of the information
193 sheets prepared by the candidates. In order to reduce costs, the
194 association may print or duplicate the information sheets on
195 both sides of the paper. The division shall by rule establish
196 voting procedures consistent with this sub-subparagraph,
197 including rules establishing procedures for giving notice by
198 electronic transmission and rules providing for the secrecy of
199 ballots. Elections must shall be decided by a plurality of
200 ballots cast. There is no quorum requirement; however, at least
201 20 percent of the eligible voters must cast a ballot in order to
202 have a valid election. A unit owner may not permit any other
203 person to vote his or her ballot, and any ballots improperly
204 cast are invalid. A unit owner who violates this provision may
205 be fined by the association in accordance with s. 718.303. A
206 unit owner who needs assistance in casting the ballot for the
207 reasons stated in s. 101.051 may obtain such assistance. The
208 regular election must occur on the date of the annual meeting.
209 Notwithstanding this sub-subparagraph, an election is not
210 required unless more candidates file notices of intent to run or
211 are nominated than board vacancies exist.
212 b. Within 90 days after being elected or appointed to the
213 board, each newly elected or appointed director shall certify in
214 writing to the secretary of the association that he or she has
215 read the association’s declaration of condominium, articles of
216 incorporation, bylaws, and current written policies; that he or
217 she will work to uphold such documents and policies to the best
218 of his or her ability; and that he or she will faithfully
219 discharge his or her fiduciary responsibility to the
220 association’s members. In lieu of this written certification,
221 within 90 days after being elected or appointed to the board,
222 the newly elected or appointed director may submit a certificate
223 of having satisfactorily completed the educational curriculum
224 administered by a division-approved condominium education
225 provider within 1 year before or 90 days after the date of
226 election or appointment. The written certification or
227 educational certificate is valid and does not have to be
228 resubmitted as long as the director serves on the board without
229 interruption. A director who fails to timely file the written
230 certification or educational certificate is suspended from
231 service on the board until he or she complies with this sub
232 subparagraph. The board may temporarily fill the vacancy during
233 the period of suspension. The secretary shall cause the
234 association to retain a director’s written certification or
235 educational certificate for inspection by the members for 5
236 years after a director’s election. Failure to have such written
237 certification or educational certificate on file does not affect
238 the validity of any board action.
239 5. Any approval by unit owners called for by this chapter
240 or the applicable declaration or bylaws, including, but not
241 limited to, the approval requirement in s. 718.111(8), must be
242 made at a duly noticed meeting of unit owners and is subject to
243 all requirements of this chapter or the applicable condominium
244 documents relating to unit owner decisionmaking, except that
245 unit owners may take action by written agreement, without
246 meetings, on matters for which action by written agreement
247 without meetings is expressly allowed by the applicable bylaws
248 or declaration or any law that provides for such action.
249 6. Unit owners may waive notice of specific meetings if
250 allowed by the applicable bylaws or declaration or any law. If
251 authorized by the bylaws, notice of meetings of the board of
252 administration, unit owner meetings, except unit owner meetings
253 called to recall board members under paragraph (j), and
254 committee meetings may be given by electronic transmission to
255 unit owners who consent to receive notice by electronic
256 transmission.
257 7. Unit owners have the right to participate in meetings of
258 unit owners with reference to all designated agenda items.
259 However, the association may adopt reasonable rules governing
260 the frequency, duration, and manner of unit owner participation.
261 8. A unit owner may tape record or videotape a meeting of
262 the unit owners subject to reasonable rules adopted by the
263 division.
264 9. Unless otherwise provided in the bylaws, any vacancy
265 occurring on the board before the expiration of a term may be
266 filled by the affirmative vote of the majority of the remaining
267 directors, even if the remaining directors constitute less than
268 a quorum, or by the sole remaining director. In the alternative,
269 a board may hold an election to fill the vacancy, in which case
270 the election procedures must conform to sub-subparagraph 4.a.
271 unless the association governs 10 units or fewer and has opted
272 out of the statutory election process, in which case the bylaws
273 of the association control. Unless otherwise provided in the
274 bylaws, a board member appointed or elected under this section
275 must shall fill the vacancy for the unexpired term of the seat
276 being filled. Filling vacancies created by recall is governed by
277 paragraph (j) and rules adopted by the division.
278 10. This chapter does not limit the use of general or
279 limited proxies, require the use of general or limited proxies,
280 or require the use of a written ballot or voting machine for any
281 agenda item or election at any meeting of a timeshare
282 condominium association.
283
284 Notwithstanding subparagraph (b)2. and sub-subparagraph 4.a., an
285 association of 10 or fewer units may, by affirmative vote of a
286 majority of the total voting interests, provide for different
287 voting and election procedures in its bylaws, which may be by a
288 proxy specifically delineating the different voting and election
289 procedures. The different voting and election procedures may
290 provide for elections to be conducted by limited or general
291 proxy.
292 Section 2. Paragraph (t) of subsection (5) of section
293 721.07, Florida Statutes, is amended to read:
294 721.07 Public offering statement.—Prior to offering any
295 timeshare plan, the developer must submit a filed public
296 offering statement to the division for approval as prescribed by
297 s. 721.03, s. 721.55, or this section. Until the division
298 approves such filing, any contract regarding the sale of that
299 timeshare plan is subject to cancellation by the purchaser
300 pursuant to s. 721.10.
301 (5) Every filed public offering statement for a timeshare
302 plan which is not a multisite timeshare plan shall contain the
303 information required by this subsection. The division is
304 authorized to provide by rule the method by which a developer
305 must provide such information to the division.
306 (t) An estimated operating budget for the timeshare plan
307 and a schedule of the purchaser’s expenses must shall be
308 attached as an exhibit and must shall contain the following
309 information:
310 1. The estimated annual expenses of the timeshare plan
311 collectible from purchasers by assessments. The estimated
312 payments by the purchaser for assessments must shall also be
313 stated in the estimated amounts for the times when they will be
314 due. Expenses must shall also be shown for the shortest
315 timeshare period offered for sale by the developer. If the
316 timeshare plan provides for the offer and sale of units to be
317 used on a nontimeshare basis, the estimated monthly and annual
318 expenses of such units must shall be set forth in a separate
319 schedule.
320 2. The estimated weekly, monthly, and annual expenses of
321 the purchaser of each timeshare interest, other than assessments
322 payable to the managing entity. Expenses which are personal to
323 purchasers that are not uniformly incurred by all purchasers or
324 that are not provided for or contemplated by the timeshare plan
325 documents may be excluded from this estimate.
326 3. The estimated items of expenses of the timeshare plan
327 and the managing entity, except as excluded under subparagraph
328 2., including, but not limited to, if applicable, the following
329 items, which shall be stated either as management expenses
330 collectible by assessments or as expenses of the purchaser
331 payable to persons other than the managing entity:
332 a. Expenses for the managing entity:
333 (I) Administration of the managing entity.
334 (II) Management fees.
335 (III) Maintenance.
336 (IV) Rent for facilities.
337 (V) Taxes upon timeshare property.
338 (VI) Taxes upon leased areas.
339 (VII) Insurance.
340 (VIII) Security provisions.
341 (IX) Other expenses.
342 (X) Operating capital.
343 (XI) Reserves for deferred maintenance and reserves for
344 capital expenditures, including:
345 (A) Reserves for deferred maintenance or capital
346 expenditures of accommodations and facilities of a real property
347 timeshare plan, if any. All reserves for any accommodations and
348 facilities of real property timeshare plans located in this
349 state shall be calculated by using a formula which is based upon
350 estimated life and replacement cost of each reserve item that
351 will provide funds equal to the total estimated deferred
352 maintenance expense or total estimated life and replacement cost
353 for an asset or group of assets over the remaining useful life
354 of the asset or group of assets. A funding formula for reserves
355 must be based on either a separate analysis of each of the
356 required assets using the straight-line accounting method or a
357 pooled analysis of two or more of the required assets using the
358 pooling accounting method. Reserves for deferred maintenance for
359 such accommodations and facilities must shall include accounts
360 for roof replacement, building painting, pavement resurfacing,
361 replacement of timeshare unit furnishings and equipment, and any
362 other component, the useful life of which is less than the
363 useful life of the overall structure. For any accommodations and
364 facilities of real property timeshare plans located outside of
365 this state, the developer shall disclose the amount of reserves
366 for deferred maintenance or capital expenditures required by the
367 law of the situs state, if applicable, and maintained for such
368 accommodations and facilities.
369 (B) Reserves for deferred maintenance or capital
370 expenditures of accommodations and facilities of a personal
371 property timeshare plan, if any. If such reserves are
372 maintained, the estimated operating budget must shall disclose
373 the methodology of how the reserves are calculated. If a
374 personal property timeshare plan does not require reserves, the
375 following statement, in conspicuous type, must shall appear in
376 both the budget and the public offering statement:
377
378 The estimated operating budget for this personal property
379 timeshare plan does not include reserves for deferred
380 maintenance or capital expenditures; each timeshare interest may
381 be subject to substantial special assessments from time to time
382 because no such reserves exist.
383
384 (XII) Fees payable to the division.
385 b. Expenses for a purchaser:
386 (I) Rent for the timeshare unit, if subject to a lease.
387 (II) Rent payable by the purchaser directly to the lessor
388 or agent under any lease for the use of facilities, which use
389 and payment is a mandatory condition of ownership and is not
390 included in the common expenses or assessments for common
391 maintenance paid by the purchasers to the managing entity.
392 4. The estimated amounts shall be stated for a period of at
393 least 12 months and may distinguish between the period before
394 prior to the time that purchasers elect a majority of the board
395 of administration and the period after that date.
396 5. If the developer intends to guarantee the level of
397 assessments, such guarantee must be based upon a good faith
398 estimate of the revenues and expenses of the timeshare plan. The
399 guarantee must include a description of the following:
400 a. The specific time period measured in one or more
401 calendar or fiscal years during which the guarantee will be in
402 effect.
403 b. A statement that the developer will pay all common
404 expenses incurred in excess of the total revenues of the
405 timeshare plan pursuant to s. 721.15(2) if the developer has
406 excused himself or herself from the payment of assessments
407 during the guarantee period.
408 c. The level, expressed in total dollars, at which the
409 developer guarantees the budget. If the developer has reserved
410 the right to extend or increase the guarantee level pursuant to
411 s. 721.15(2), a disclosure must be included to that effect.
412 6. If the developer intends to provide a trust fund to
413 defer or reduce the payment of annual assessments, a copy of the
414 trust instrument shall be attached as an exhibit and shall
415 include a description of such arrangement, including, but not
416 limited to:
417 a. The specific amount of such trust funds and the source
418 of the funds.
419 b. The name and address of the trustee.
420 c. The investment methods permitted by the trust agreement.
421 d. A statement in conspicuous type that the funds from the
422 trust account may not cover all assessments and that there is no
423 guarantee that purchasers will not have to pay assessments in
424 the future.
425 7. The budget of a phase timeshare plan may contain a note
426 identifying the number of timeshare interests covered by the
427 budget, indicating the number of timeshare interests, if any,
428 estimated to be declared as part of the timeshare plan during
429 that calendar year, and projecting the common expenses for the
430 timeshare plan based upon the number of timeshare interests
431 estimated to be declared as part of the timeshare plan during
432 that calendar year.
433 Section 3. Subsections (9), (10), and (11) of section
434 721.82, Florida Statutes, are amended to read:
435 721.82 Definitions.—As used in this part, the term:
436 (9) “Notice address” means:
437 (a) As to an assessment lien, the address of the owner of a
438 timeshare interest as reflected by the books and records of the
439 timeshare plan under ss. 721.13(4) and 721.15(7).
440 (b) As to a mortgage lien:
441 1. The address of the mortgagor as set forth in the
442 mortgage, the promissory note or a separate document executed by
443 the mortgagor at the time the mortgage lien was created, or the
444 most current address of the mortgagor according to the records
445 of the mortgagee; and
446 2. If the owner of the timeshare interest is different from
447 the mortgagor, the address of the owner of the timeshare
448 interest as reflected by the books and records of the mortgagee.
449 (c) As to a junior interestholder, the address as set forth
450 in the recorded instrument creating the junior lien or interest,
451 or in any recorded amendment thereto changing the address, or in
452 any written notification by the junior interestholder to the
453 foreclosing lienholder changing the address.
454 (d) As to an owner of a timeshare interest, mortgagor, or
455 junior interestholder whose current address is not the address
456 as determined by paragraph (9)(a), paragraph (9)(b), or
457 paragraph (9)(c), the address that is known to be the current
458 address.
459 (10) “Obligor” means the mortgagor, the person subject to
460 an assessment lien, or the record owner of the timeshare
461 interest, or the personal representative, court appointed
462 counsel, or guardian ad litem on behalf of such mortgagor,
463 person subject to an assessment lien, or record owner of the
464 timeshare interest.
465 (11) “Permitted delivery service” means any nationally
466 recognized common carrier delivery service or international
467 airmail service that allows for return receipt service or a
468 service that is recognized by an international jurisdiction to
469 be the equivalent of certified, registered mail for the
470 jurisdiction.
471 Section 4. Subsection (6) of section 721.84, Florida
472 Statutes, is amended to read:
473 721.84 Appointment of a registered agent; duties.—
474 (6) Unless otherwise provided in this section, a registered
475 agent in receipt of any notice or other document addressed from
476 the lienholder to the obligor in care of the registered agent at
477 the registered office must mail, by first-class first class mail
478 if the obligor’s address is within the United States, and by
479 international air mail if the obligor’s address is outside the
480 United States, with postage fees prepaid, such notice or
481 documents to the obligor at the obligor’s last designated
482 address within 5 days after receipt.
483 Section 5. Paragraph (c) of subsection (2), subsections (4)
484 and (5), paragraph (c) of subsection (6), paragraph (b) of
485 subsection (7), and paragraph (b) of subsection (14) of section
486 721.855, Florida Statutes, are amended to read:
487 721.855 Procedure for the trustee foreclosure of assessment
488 liens.—The provisions of this section establish a trustee
489 foreclosure procedure for assessment liens.
490 (2) INITIATING THE USE OF A TRUSTEE FORECLOSURE PROCEDURE.—
491 (c)1. In order to initiate a trustee foreclosure procedure
492 against a timeshare interest, the lienholder shall deliver an
493 affidavit to the trustee that identifies the obligor; the notice
494 address of the obligor; the timeshare interest; the date that
495 the notice of the intent to file a lien was given, if
496 applicable; the official records book and page number where the
497 claim of lien is recorded; and the name and notice address of
498 any junior interestholder. The affidavit shall be accompanied by
499 a title search of the timeshare interest identifying any junior
500 interestholders of record, and the effective date of the title
501 search must be a date that is within 60 calendar days before the
502 date of the affidavit.
503 2. The affidavit must shall also state the facts that
504 establish that the obligor has defaulted in the obligation to
505 make a payment under a specified provision of the timeshare
506 instrument or applicable law.
507 3. The affidavit must shall also specify the amounts
508 secured by the lien as of the date of the affidavit and a per
509 diem amount to account for further accrual of the amounts
510 secured by the lien.
511 4. The affidavit must shall also state that the assessment
512 lien was properly created and authorized pursuant to the
513 timeshare instrument and applicable law.
514 (4) CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A
515 trustee may sell an encumbered timeshare interest foreclosed
516 under this section if:
517 (a) The trustee has received the affidavit from the
518 lienholder under paragraph (2)(c);
519 (b) The trustee has not received a written objection to the
520 use of the trustee foreclosure procedure under paragraph (3)(a)
521 and the timeshare interest was not redeemed under paragraph
522 (3)(b);
523 (c) There is no lis pendens recorded and pending against
524 the same timeshare interest before the recording of the notice
525 of lis pendens pursuant to paragraph (5)(h) and the trustee has
526 not been served notice of the filing of any action to enjoin the
527 trustee foreclosure sale;
528 (d) The trustee has provided written notice of default and
529 intent to foreclose as required under subsection (5) and a
530 period of at least 30 calendar days has elapsed after such
531 notice is deemed perfected under subsection (5); and
532 (e) The notice of sale required under subsection (6) has
533 been recorded in the official records of the county or counties
534 in which the timeshare interest is located; and.
535 (f) The lienholder has delivered to the trustee a title
536 search of the timeshare interest which identifies any junior
537 interestholders of record, and the effective date of the title
538 search must be a date that is within 60 calendar days before the
539 date that it is delivered to the trustee. If it is determined
540 from the title search that incorrect obligors or junior
541 interestholders have been served or additional obligors or
542 junior interestholders have not been served, the foreclosure
543 action may not proceed until the notices required pursuant to
544 this section have been served on the correct or additional
545 obligors or junior interestholders and all applicable time
546 periods have expired.
547 (5) NOTICE OF DEFAULT AND INTENT TO FORECLOSE.—
548 (a) In any foreclosure proceeding under this section, the
549 trustee is required to notify the obligor of the proceeding by
550 sending the obligor a written notice of default and intent to
551 foreclose to the notice address of the obligor by certified
552 mail, registered mail, or permitted delivery service, return
553 receipt requested, and by first-class mail or permitted delivery
554 service, postage prepaid, as follows:
555 1. The notice of default and intent to foreclose must shall
556 identify the obligor, the notice address of the obligor, the
557 legal description of the timeshare interest, the nature of the
558 default, the amounts secured by the lien, and a per diem amount
559 to account for further accrual of the amounts secured by the
560 lien and must shall state the method by which the obligor may
561 cure the default, including the period of time after the date of
562 the notice of default and intent to foreclose within which the
563 obligor may cure the default.
564 2. The notice of default and intent to foreclose must shall
565 include an objection form with which the obligor can object to
566 the use of the trustee foreclosure procedure by signing and
567 returning the objection form to the trustee. The objection form
568 must shall identify the obligor, the notice address of the
569 obligor, the timeshare interest, and the return address of the
570 trustee and must shall state: “The undersigned obligor exercises
571 the obligor’s right to object to the use of the trustee
572 foreclosure procedure contained in section 721.855, Florida
573 Statutes.”
574 3. The notice of default and intent to foreclose must shall
575 also contain a statement in substantially the following form:
576
577 If you fail to cure the default as set forth in this
578 notice or take other appropriate action with regard to
579 this foreclosure matter, you risk losing ownership of
580 your timeshare interest through the trustee
581 foreclosure procedure established in section 721.855,
582 Florida Statutes. You may choose to sign and send to
583 the trustee the enclosed objection form, exercising
584 your right to object to the use of the trustee
585 foreclosure procedure. Upon the trustee’s receipt of
586 your signed objection form, the foreclosure of the
587 lien with respect to the default specified in this
588 notice shall be subject to the judicial foreclosure
589 procedure only. You have the right to cure your
590 default in the manner set forth in this notice at any
591 time before the trustee’s sale of your timeshare
592 interest. If you do not object to the use of the
593 trustee foreclosure procedure, you will not be subject
594 to a deficiency judgment even if the proceeds from the
595 sale of your timeshare interest are insufficient to
596 offset the amounts secured by the lien.
597
598 4. The trustee shall also mail a copy of the notice of
599 default and intent to foreclose, without the objection form, to
600 the notice address of any junior interestholder by certified
601 mail, registered mail, or permitted delivery service, return
602 receipt requested, and by first-class mail or permitted delivery
603 service, postage prepaid.
604 5. Notice under this paragraph is considered perfected upon
605 the trustee receiving the return receipt bearing the signature
606 of the obligor or junior interestholder, as applicable, within
607 30 calendar days after the trustee sent the notice under this
608 paragraph. Notice under this paragraph is not perfected if:
609 (I) The notice is returned as undeliverable within 30
610 calendar days after the trustee sent the notice;, if
611 (II) The trustee cannot, in good faith, ascertain from the
612 receipt that the obligor or junior interestholder, as
613 applicable, is the person who signed the receipt because all or
614 a portion of the obligor’s or junior interestholder’s name is
615 not on the signed receipt or the trustee cannot otherwise
616 determine that the obligor or junior interestholder signed the
617 receipt;, or if
618 (III) The receipt from the obligor or junior
619 interestholder, as applicable, is returned or refused within 30
620 calendar days after the trustee sent the notice.
621 (b) If the notice required by paragraph (a) is returned as
622 undeliverable within 30 calendar days after the trustee sent the
623 notice, the trustee shall perform a diligent search and inquiry
624 to obtain a different address for the obligor or junior
625 interestholder. For purposes of this paragraph, any address
626 known and used by the lienholder for sending regular mailings or
627 other communications from the lienholder to the obligor or
628 junior interestholder, as applicable, shall be included with
629 other addresses produced from the diligent search and inquiry,
630 if any.
631 1. If the trustee’s diligent search and inquiry produces an
632 address different from the notice address, the trustee shall
633 mail a copy of the notice by certified mail, registered mail, or
634 permitted delivery service, return receipt requested, and by
635 first-class mail or permitted delivery service, postage prepaid,
636 to the new address. Notice under this subparagraph is considered
637 perfected upon the trustee receiving the return receipt bearing
638 the signature of the obligor or junior interestholder, as
639 applicable, within 30 calendar days after the trustee sent the
640 notice under this subparagraph. Notice under this subparagraph
641 is not perfected if the receipt from the obligor or junior
642 interestholder, as applicable, is returned refused, or the
643 trustee cannot, in good faith, ascertain from the receipt that
644 the obligor or junior interestholder, as applicable, is the
645 person who signed the receipt because all or a portion of the
646 obligor’s or junior interestholder’s name is not on the signed
647 receipt or the trustee cannot otherwise determine that the
648 obligor or junior interestholder signed the receipt or the
649 receipt from the obligor or junior interestholder, as
650 applicable, is returned refused. If the trustee does not perfect
651 notice under this subparagraph, the trustee shall perfect
652 service in the manner set forth in paragraph (c).
653 2. If the trustee’s diligent search and inquiry does not
654 locate a different address for the obligor or junior
655 interestholder, as applicable, the trustee may perfect notice
656 against that person under paragraph (c).
657 (c) If the notice is not perfected under subparagraph
658 (a)5., and such notice was not returned as undeliverable, or if
659 the notice was not perfected under subparagraph (b)1., the
660 trustee may perfect notice by publication in a newspaper of
661 general circulation in the county or counties in which the
662 timeshare interest is located. The notice must shall appear at
663 least once a week for 2 consecutive weeks. The notice of default
664 and intent to foreclose perfected by publication must identify
665 the obligor, the notice address of the obligor, the legal
666 description of the timeshare interest, the nature of the action
667 in short and simple terms, the name and contact information of
668 the trustee, and the period of time after the date of the notice
669 of default and intent to foreclose within which the obligor may
670 cure the default. The trustee may group an unlimited number of
671 notices in the same publication, if all of the notices pertain
672 to the same timeshare plan. Notice under this paragraph is
673 considered perfected upon publication as required in this
674 paragraph.
675 (d) If notice is perfected under subparagraph (a)5., the
676 trustee shall execute an affidavit in recordable form setting
677 forth the manner in which notice was perfected and attach the
678 affidavit to the certificate of compliance set forth in
679 subsection (9). The affidavit must shall state the nature of the
680 notice, the date on which the notice was mailed, the name and
681 address on the envelope containing the notice, the manner in
682 which the notice was mailed, and the basis for that knowledge.
683 (e) If notice is perfected under subparagraph (b)1., the
684 trustee shall execute an affidavit in recordable form setting
685 forth the manner in which notice was perfected and attach the
686 affidavit to the certificate of compliance set forth in
687 subsection (9). The affidavit must shall state the nature of the
688 notice, the dates on which the notice was mailed, the name and
689 addresses on the envelopes containing the notice, and the manner
690 in which the notices were mailed, and the fact that a signed
691 receipt from the certified mail, registered mail, or permitted
692 delivery service was timely received, and the name and address
693 on the envelopes containing the notice.
694 (f) If notice is perfected by publication under paragraph
695 (c), the trustee shall execute an affidavit in recordable form
696 setting forth the manner in which notice was perfected and
697 attach the affidavit to the certificate of compliance set forth
698 in subsection (9). The affidavit must shall include all the
699 information contained in either paragraph (d) or paragraph (e),
700 as applicable, must shall state that the notice was perfected by
701 publication and must state that after diligent search and
702 inquiry was made for the current address for the person, unless
703 such diligent search was not required because service was
704 refused, returned as undeliverable, or the trustee has
705 ascertained that that the obligor or junior interestholder, as
706 applicable, is the person who signed the receipt. The affidavit
707 must also and shall include a statement that notice was
708 perfected by publication, and shall set forth the information
709 required by s. 49.041 in the case of a natural person or s.
710 49.051 in the case of a corporation, whichever is applicable. No
711 other action of the trustee is necessary to perfect notice.
712 (g) Notice under subparagraph (a) or subparagraph (b) of
713 this subsection is deemed perfected as to all obligors who have
714 the same address if notice is perfected as to at least one
715 obligor at that address pursuant to the provisions of this
716 subsection.
717 (h) The initiation of a trustee foreclosure action operates
718 as a lis pendens on the timeshare interest pursuant to s. 48.23
719 only if a notice of lis pendens is recorded in the official
720 records of the county in which the deed conveying the timeshare
721 interest to the obligor was recorded and such notice has not
722 expired pursuant to s. 48.23 or been withdrawn or discharged.
723 The notice of lis pendens must contain the following:
724 1. The name of the obligor.
725 2. The date of the initiation of the trustee foreclosure
726 action, which date must be the date of the sending of the notice
727 of default and intent to foreclose to the obligor.
728 3. The name and contact information of the trustee.
729 4. The legal description of the timeshare interest.
730 5. A statement that a trustee foreclosure action has been
731 initiated against the timeshare interest pursuant to this
732 section.
733 (6) NOTICE OF SALE.—
734 (c) After the date of recording of the notice of sale,
735 notice is not required to be given to any person claiming an
736 interest in the timeshare interest except as provided in this
737 section. If a notice of lis pendens has not previously been
738 recorded pursuant to paragraph (5)(h), the recording of the
739 notice of sale has the same force and effect as the filing of a
740 lis pendens in a judicial proceeding under s. 48.23.
741 (7) MANNER OF SALE.—
742 (b) The trustee shall conduct the sale and act as the
743 auctioneer. The trustee may use a third party to conduct the
744 sale on behalf of the trustee; provided, however, that the
745 trustee remains liable for the conduct of the sale and the
746 actions of the third party with respect to the conduct of the
747 sale.
748 (14) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
749 PROCEDURE.—
750 (b) Any trustee who intentionally violates the provisions
751 of this section concerning the trustee foreclosure procedure
752 commits a felony of the third degree, punishable as provided in
753 s. 775.082, s. 775.083, or s. 775.084. A trustee does not commit
754 a violation of this section if he or she incorrectly ascertains
755 that it is the obligor who signed the return receipt as required
756 in s. 721.855(5); provided, however, that the trustee makes a
757 good faith effort to properly ascertain if the obligor signed
758 the return receipt in accordance with s. 721.855(5).
759 Section 6. Paragraph (b) of subsection (2), subsections (4)
760 and (5), paragraph (c) of subsection (6), paragraph (b) of
761 subsection (7), and paragraph (b) of subsection (13) of section
762 721.856, Florida Statutes, are amended to read:
763 721.856 Procedure for the trustee foreclosure of mortgage
764 liens.—The provisions of this section establish a trustee
765 foreclosure procedure for mortgage liens.
766 (2) INITIATING THE TRUSTEE FORECLOSURE OF MORTGAGE LIENS.—
767 (b)1. In order to initiate a trustee foreclosure procedure
768 against a timeshare interest, the lienholder shall deliver an
769 affidavit to the trustee that identifies the obligor, the notice
770 address of the obligor, the timeshare interest, the official
771 records book and page number where the mortgage is recorded, and
772 the name and notice address of any junior interestholder. The
773 affidavit shall be accompanied by a title search of the
774 timeshare interest identifying any junior interestholders of
775 record, and the effective date of the title search must be a
776 date that is within 60 calendar days before the date of the
777 affidavit.
778 2. The affidavit shall also state the facts that establish
779 that the obligor has defaulted in the obligation to make a
780 payment under a specified provision of the mortgage or is
781 otherwise deemed in uncured default under a specified provision
782 of the mortgage.
783 3. The affidavit shall also specify the amounts secured by
784 the lien as of the date of the affidavit and a per diem amount
785 to account for further accrual of the amounts secured by the
786 lien.
787 4. The affidavit shall also state that the appropriate
788 amount of documentary stamp tax and intangible taxes has been
789 paid upon recording of the mortgage, or otherwise paid to the
790 state.
791 5. The affidavit shall also state that the lienholder is
792 the holder of the note and has complied with all preconditions
793 in the note and mortgage to determine the amounts secured by the
794 lien and to initiate the use of the trustee foreclosure
795 procedure.
796 (4) CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A
797 trustee may sell an encumbered timeshare interest foreclosed
798 under this section if:
799 (a) The trustee has received the affidavit from the
800 lienholder under paragraph (2)(b);
801 (b) The trustee has not received a written objection to the
802 use of the trustee foreclosure procedure under paragraph (3)(a)
803 and the timeshare interest was not redeemed under paragraph
804 (3)(b);
805 (c) There is no lis pendens recorded and pending against
806 the same timeshare interest before the initiation of the trustee
807 foreclosure action and provided a notice of lis pendens has been
808 recorded pursuant to paragraph (5)(h), and the trustee has not
809 been served notice of the filing of any action to enjoin the
810 trustee foreclosure sale;
811 (d) The trustee is in possession of the original promissory
812 note executed by the mortgagor and secured by the mortgage lien;
813 (e) The trustee has provided written notice of default and
814 intent to foreclose as required under subsection (5) and a
815 period of at least 30 calendar days has elapsed after such
816 notice is deemed perfected under subsection (5); and
817 (f) The notice of sale required under subsection (6) has
818 been recorded in the official records of the county in which the
819 mortgage was recorded.
820 (g) The lienholder has delivered to the trustee a title
821 search of the timeshare interest identifying any junior
822 interestholders of record, and the effective date of the title
823 search must be a date that is within 60 calendar days before the
824 date that it is delivered to the trustee. If it is determined
825 from the title search that incorrect obligors or junior
826 interestholders have been served or additional obligors or
827 junior interestholders have not been served, the foreclosure
828 action may not proceed until the notices required pursuant to
829 this section have been served on the correct or additional
830 obligors or junior interestholders and all applicable time
831 periods have expired.
832 (5) NOTICE OF DEFAULT AND INTENT TO FORECLOSE.—
833 (a) In any foreclosure proceeding under this section, the
834 trustee is required to notify the obligor of the proceeding by
835 sending the obligor a written notice of default and intent to
836 foreclose to the notice address of the obligor by certified
837 mail, registered mail, or permitted delivery service, return
838 receipt requested, and by first-class mail or permitted delivery
839 service, postage prepaid, as follows:
840 1. The notice of default and intent to foreclose must shall
841 identify the obligor, the notice address of the obligor, the
842 legal description of the timeshare interest, the nature of the
843 default, the amounts secured by the lien, and a per diem amount
844 to account for further accrual of the amounts secured by the
845 lien and must shall state the method by which the obligor may
846 cure the default, including the period of time after the date of
847 the notice of default and intent to foreclose within which the
848 obligor may cure the default.
849 2. The notice of default and intent to foreclose must shall
850 include an objection form with which the obligor can object to
851 the use of the trustee foreclosure procedure by signing and
852 returning the objection form to the trustee. The objection form
853 must shall identify the obligor, the notice address of the
854 obligor, the timeshare interest, and the return address of the
855 trustee and shall state: “The undersigned obligor exercises the
856 obligor’s right to object to the use of the trustee foreclosure
857 procedure contained in section 721.856, Florida Statutes.”
858 3. The notice of default and intent to foreclose must shall
859 also contain a statement in substantially the following form:
860
861 If you fail to cure the default as set forth in this
862 notice or take other appropriate action with regard to
863 this foreclosure matter, you risk losing ownership of
864 your timeshare interest through the trustee
865 foreclosure procedure established in section 721.856,
866 Florida Statutes. You may choose to sign and send to
867 the trustee the enclosed objection form, exercising
868 your right to object to the use of the trustee
869 foreclosure procedure. Upon the trustee’s receipt of
870 your signed objection form, the foreclosure of the
871 lien with respect to the default specified in this
872 notice shall be subject to the judicial foreclosure
873 procedure only. You have the right to cure your
874 default in the manner set forth in this notice at any
875 time before the trustee’s sale of your timeshare
876 interest. If you do not object to the use of the
877 trustee foreclosure procedure, you will not be subject
878 to a deficiency judgment even if the proceeds from the
879 sale of your timeshare interest are insufficient to
880 offset the amounts secured by the lien.
881
882 4. The trustee shall also mail a copy of the notice of
883 default and intent to foreclose, without the objection form, to
884 the notice address of any junior interestholder by certified
885 mail, registered mail, or permitted delivery service, return
886 receipt requested, and by first-class mail or permitted delivery
887 service, postage prepaid.
888 5. Notice under this paragraph is considered perfected upon
889 the trustee receiving the return receipt bearing the signature
890 of the obligor or junior interestholder, as applicable, within
891 30 calendar days after the trustee sent the notice under this
892 paragraph. Notice under this paragraph is not perfected if:
893 (I) The notice is returned as undeliverable within 30
894 calendar days after the trustee sent the notice;, if
895 (II) The trustee cannot, in good faith, ascertain from the
896 receipt that the obligor or junior interestholder, as
897 applicable, is the person who signed the receipt because all or
898 a portion of the obligor’s or junior interestholder’s name is
899 not on the signed receipt or the trustee cannot otherwise
900 determine that the obligor or junior interestholder signed the
901 receipt;, or if
902 (III) The receipt from the obligor or junior
903 interestholder, as applicable, is returned or refused within 30
904 calendar days after the trustee sent the notice.
905 (b) If the notice required by paragraph (a) is returned as
906 undeliverable within 30 calendar days after the trustee sent the
907 notice, the trustee shall perform a diligent search and inquiry
908 to obtain a different address for the obligor or junior
909 interestholder. For purposes of this paragraph, any address
910 known and used by the lienholder for sending regular mailings or
911 other communications from the lienholder to the obligor or
912 junior interestholder, as applicable, must shall be included
913 with other addresses produced from the diligent search and
914 inquiry, if any.
915 1. If the trustee’s diligent search and inquiry produces an
916 address different from the notice address, the trustee shall
917 mail a copy of the notice by certified mail, registered mail, or
918 permitted delivery service, return receipt requested, and by
919 first-class mail or permitted delivery service, postage prepaid,
920 to the new address. Notice under this subparagraph is considered
921 perfected upon the trustee receiving the return receipt bearing
922 the signature of the obligor or junior interestholder, as
923 applicable, within 30 calendar days after the trustee sent the
924 notice under this subparagraph. Notice under this subparagraph
925 is not perfected if the receipt from the obligor or junior
926 interestholder, as applicable, is returned refused, or the
927 trustee cannot, in good faith, ascertain from the receipt that
928 the obligor or junior interestholder, as applicable, is the
929 person who signed the receipt because all or a portion of the
930 obligor’s or junior interestholder’s name is not on the signed
931 receipt or the trustee cannot otherwise determine that the
932 obligor or junior interestholder signed the receipt or the
933 receipt from the obligor or junior interestholder, as
934 applicable, is returned refused. If the trustee does not perfect
935 notice under this subparagraph, the trustee shall perfect
936 service in the manner set forth in paragraph (c).
937 2. If the trustee’s diligent search and inquiry does not
938 locate a different address for the obligor or junior
939 interestholder, as applicable, the trustee may perfect notice
940 against that person under paragraph (c).
941 (c) If the notice is not perfected under subparagraph
942 (a)5., and such notice was not returned as undeliverable, or if
943 the notice was not perfected under subparagraph (b)1., the
944 trustee may perfect notice by publication in a newspaper of
945 general circulation in the county or counties in which the
946 timeshare interest is located. The notice must shall appear at
947 least once a week for 2 consecutive weeks. The notice of default
948 and intent to foreclose perfected by publication must identify
949 the obligor, the notice address of the obligor, the legal
950 description of the timeshare interest, the nature of the action
951 in short and simple terms, the name and contact information of
952 the trustee, and the period of time after the date of the notice
953 of default and intent to foreclose within which the obligor may
954 cure the default. The trustee may group an unlimited number of
955 notices in the same publication, if all of the notices pertain
956 to the same timeshare plan. Notice under this paragraph is
957 considered perfected upon publication as required in this
958 paragraph.
959 (d) If notice is perfected under subparagraph (a)5., the
960 trustee shall execute an affidavit in recordable form setting
961 forth the manner in which notice was perfected and attach the
962 affidavit to the certificate of compliance set forth in
963 subsection (9). The affidavit must shall state the nature of the
964 notice, the date on which the notice was mailed, the name and
965 address on the envelope containing the notice, the manner in
966 which the notice was mailed, and the basis for that knowledge.
967 (e) If notice is perfected under subparagraph (b)1., the
968 trustee shall execute an affidavit in recordable form setting
969 forth the manner in which notice was perfected and attach the
970 affidavit to the certificate of compliance set forth in
971 subsection (9). The affidavit must shall state the nature of the
972 notice, the dates on which the notice was mailed, the name and
973 addresses on the envelopes containing the notice, the manner in
974 which the notice was mailed, and the fact that a signed receipt
975 from the certified mail, registered mail, or permitted delivery
976 service was timely received, and the name and address on the
977 envelopes containing the notice.
978 (f) If notice is perfected under paragraph (c), the trustee
979 shall execute an affidavit in recordable form setting forth the
980 manner in which notice was perfected and attach the affidavit to
981 the certificate of compliance set forth in subsection (9). The
982 affidavit must shall include all the information contained in
983 either paragraph (d) or paragraph (e), as applicable, must shall
984 state that the notice was perfected by publication and must
985 state that after diligent search and inquiry was made for the
986 current address for the person, unless such diligent search was
987 not required because service was refused, returned as
988 undeliverable, or the trustee has ascertained that the obligor
989 or junior interestholder, as applicable, is the person who
990 signed the receipt. The affidavit must also shall include a
991 statement that notice was perfected by publication, and shall
992 set forth the information required by s. 49.041 in the case of a
993 natural person or s. 49.051 in the case of a corporation,
994 whichever is applicable. No other action of the trustee is
995 necessary to perfect notice.
996 (g) Notice under subparagraph (a) or subparagraph (b) of
997 this subsection shall be deemed perfected as to all obligors who
998 have the same address if notice is perfected as to at least one
999 obligor at that address pursuant to the provisions of this
1000 subsection.
1001 (h) The initiation of a trustee foreclosure action operates
1002 as a lis pendens on the timeshare interest pursuant to s. 48.23
1003 only if a notice of lis pendens is recorded in the official
1004 records of the county or counties in which the mortgage is
1005 recorded and such notice has not expired pursuant to subsection
1006 (2) of s. 48.23 or been withdrawn or discharged. The notice of
1007 lis pendens must contain the following:
1008 1. The name of the obligor.
1009 2. The date of the initiation of the trustee foreclosure
1010 action, which date must be the date of the sending of the notice
1011 of default and intent to foreclose to the obligor.
1012 3. The name and contact information of the trustee.
1013 4. The legal description of the timeshare interest.
1014 5. A statement that a trustee foreclosure action has been
1015 initiated against the timeshare interest pursuant to this
1016 section.
1017 (6) NOTICE OF SALE.—
1018 (c) After the date of recording of the notice of sale,
1019 notice is not required to be given to any person claiming an
1020 interest in the timeshare interest except as provided in this
1021 section. If a notice of lis pendens has not previously been
1022 recorded pursuant to paragraph (5)(h), the recording of the
1023 notice of sale has the same force and effect as the filing of a
1024 lis pendens in a judicial proceeding under s. 48.23.
1025 (7) MANNER OF SALE.—
1026 (b) The trustee shall conduct the sale and act as the
1027 auctioneer. The trustee may use a third party to conduct the
1028 sale on behalf of the trustee; provided, however, that the
1029 trustee remains liable for the conduct of the sale and the
1030 actions of such third party with respect to the conduct of the
1031 sale.
1032 (13) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
1033 PROCEDURE.—
1034 (b) Any trustee who intentionally violates the provisions
1035 of this section concerning the trustee foreclosure procedure
1036 commits a felony of the third degree, punishable as provided in
1037 s. 775.082, s. 775.083, or s. 775.084. A trustee does not commit
1038 a violation of this section if he or she incorrectly ascertains
1039 that it is the obligor who signed the return receipt as required
1040 in s. 721.855(6); provided, however, that the trustee makes a
1041 good faith effort to properly ascertain if the obligor signed
1042 the return receipt in accordance with s. 721.855(6).
1043 Section 7. This act shall take effect July 1, 2013.