Florida Senate - 2022 CS for SB 1016
By the Committee on Banking and Insurance; and Senator Burgess
597-02838-22 20221016c1
1 A bill to be entitled
2 An act relating to mortgage payoff letters; amending
3 s. 701.04, F.S.; revising the timeframe within which a
4 mortgagee or mortgage servicer must send or cause to
5 be sent an estoppel letter containing specified
6 information; revising the circumstances under which a
7 copy of the instrument showing title in the property
8 or other lawful authorization must be included in a
9 request for an estoppel letter; requiring notice to
10 the mortgagor of a request for an estoppel letter
11 under certain circumstances; revising requirements for
12 an estoppel letter; prohibiting certain actions by the
13 mortgagee or mortgage servicer; authorizing the
14 mortgagee or mortgage servicer to send a corrected
15 estoppel letter under certain circumstances; providing
16 that a corrected estoppel letter supersedes any
17 previous estoppel letter under certain circumstances;
18 prohibiting the mortgagee or mortgage servicer from
19 denying the accuracy of certain information provided
20 in an estoppel letter under certain circumstances;
21 providing construction; prohibiting payments received
22 pursuant to an estoppel letter from being returned and
23 requiring such payments to be promptly applied to any
24 unpaid balance of the loan properly due under or
25 secured by a mortgage; providing methods for sending a
26 written request for an estoppel letter and for sending
27 an estoppel letter; providing that the mortgagee or
28 mortgage servicer is not required to pay for a common
29 carrier delivery service; requiring the mortgagee or
30 mortgage servicer to take certain actions within a
31 specified time after the unpaid balance of a loan
32 properly secured by a mortgage has been fully paid or
33 paid pursuant to an estoppel letter; authorizing
34 reasonable attorney fees and costs; providing that
35 certain persons may still be personally liable after
36 the recording of a release of a mortgage; amending s.
37 701.041, F.S.; revising the definition of the term
38 “estoppel letter”; conforming provisions to changes
39 made by the act; providing legislative findings;
40 providing for retroactive applicability; providing an
41 effective date.
42
43 Be It Enacted by the Legislature of the State of Florida:
44
45 Section 1. Section 701.04, Florida Statutes, is amended to
46 read:
47 701.04 Cancellation of mortgages, liens, and judgments.—
48 (1)(a) Within 10 14 days after receipt of the written
49 request of a mortgagor, a record title owner of the property, a
50 fiduciary or trustee lawfully acting on behalf of a record title
51 owner, or any other person lawfully authorized to act on behalf
52 of a mortgagor or record title owner of the property, the
53 mortgagee holder of a mortgage shall deliver or mortgage cause
54 the servicer shall send or cause to be sent of the mortgage to
55 deliver to the person making the request at a place designated
56 in the written request an estoppel letter setting forth the
57 unpaid balance of the loan secured by the mortgage. If the
58 written request is made by a person other than the mortgagor,
59 the request must include a copy of the instrument showing such
60 person’s title in the property or other lawful authorization,
61 and the mortgagee or mortgage servicer must notify the mortgagor
62 of the request.
63 (a) If the mortgagor, or any person lawfully authorized to
64 act on behalf of the mortgagor, makes the request, the estoppel
65 letter must include an itemization of the principal, interest,
66 and any other charges properly due under or secured by the
67 mortgage and interest on a per-day basis for the unpaid balance.
68 (b) If a record title owner of the property, or any person
69 lawfully authorized to act on behalf of a mortgagor or record
70 title owner of the property, makes the request:
71 1. The request must include a copy of the instrument
72 showing title in the property or lawful authorization.
73 2. The estoppel letter may include the itemization of
74 information required under paragraph (a), but must at a minimum
75 include:
76 1. The total unpaid balance of the loan due under or
77 secured by the mortgage as of the date specified in the estoppel
78 letter, including an itemization of the principal, interest, and
79 any other charges comprising the unpaid balance; and
80 2. Interest accruing on a per-day basis for the unpaid
81 balance, if applicable.
82 (c)1. Except for mortgages for which a notice of lis
83 pendens in a foreclosure action or a suggestion of bankruptcy
84 has been properly filed and recorded, the mortgagee or mortgage
85 servicer may not qualify, reserve the right to change, or
86 condition or disclaim the reliance of others on the information
87 provided in an estoppel letter under paragraph (b), and any
88 attempt to do so is void and unenforceable. However, if the
89 mortgagee or mortgage servicer determines that any of the
90 information provided in the estoppel letter under paragraph (b)
91 was inaccurate, the mortgagee or mortgage servicer may send a
92 corrected estoppel letter to the person who requested the
93 estoppel letter.
94 2. If the person who requested the original estoppel letter
95 under subparagraph (f)1. receives a corrected estoppel letter by
96 3 p.m. in such person’s time zone at least 1 business day before
97 a payment is issued in reliance on the previous estoppel letter,
98 the corrected estoppel letter supersedes all prior estoppel
99 letters.
100 3. If any of the information provided in the estoppel
101 letter under paragraph (b) was inaccurate, but the person who
102 requested the estoppel letter did not timely receive a corrected
103 estoppel letter as provided in subparagraph 2., the mortgagee or
104 mortgage servicer may not deny the accuracy of such information
105 as against any person who relied on it. This subparagraph does
106 not affect the right of a mortgagee to recover any sum that it
107 did not include in an estoppel letter from any person liable for
108 payment of the loan or other obligations secured by the
109 mortgage, nor does it limit any claim or defense to recovery
110 that such person may have at law or in equity on a per-day
111 basis.
112 (d)3. The mortgagee or mortgage servicer of the mortgagee
113 acting in accordance with a request in substantial compliance
114 with this subsection paragraph is expressly discharged from any
115 obligation or liability to any person on account of the release
116 of the requested information, other than the obligation to
117 comply with the terms of the estoppel letter.
118 (e) If a payment is received at the location and in the
119 manner specified by the mortgagee or mortgage servicer, the
120 mortgagee or mortgage servicer must accept and may not return
121 any payment received in reliance on an estoppel letter and must
122 promptly apply such payment to the unpaid balance of the loan
123 properly due under or secured by the mortgage.
124 (f)1. A written request for an estoppel letter under
125 paragraph (a) must be sent to the mortgagee or mortgage servicer
126 by first-class mail, postage prepaid; by common carrier delivery
127 service; or by e-mail, facsimile, or other electronic means at
128 the address made available by the mortgagee or mortgage servicer
129 for such purpose or through an automated system provided by the
130 mortgagee or mortgage servicer for requesting an estoppel
131 letter. The written request is considered received by the
132 mortgagee or mortgage servicer:
133 a. Five business days after the request sent by first-class
134 mail is deposited with the United States Postal Service;
135 b. The day the request is delivered by a common carrier
136 delivery service; or
137 c. The day the request is sent by e-mail, facsimile, or
138 other electronic means or through an automated system provided
139 by the mortgagee or mortgage servicer for requesting an estoppel
140 letter.
141
142 If any of the days in sub-subparagraph a., sub-subparagraph b.,
143 or sub-subparagraph c. falls on a Saturday, Sunday, or legal
144 holiday under the laws of this state or the United States, the
145 request for an estoppel letter is considered timely received by
146 the mortgagee or mortgage servicer on the next business day.
147 2. The mortgagee or mortgage servicer must send an estoppel
148 letter by first-class mail; by common carrier delivery service;
149 or by e-mail, facsimile, or other electronic means, as directed
150 in the written request, or through an automated system provided
151 by the mortgagee or mortgage servicer for this purpose. However,
152 the mortgagee or mortgage servicer is not required to pay for a
153 common carrier delivery service. If the 10-day period after a
154 written request is received by the mortgagee or mortgage
155 servicer ends on a Saturday, Sunday, or legal holiday under the
156 laws of this state or the United States, the estoppel letter is
157 considered timely if it is sent by the close of business on the
158 next business day.
159 (g)(c) Notwithstanding s. 655.059, a mortgagee or mortgage
160 servicer mortgage holder may provide the financial information
161 required under this subsection to a person authorized under this
162 subsection to request the financial information notwithstanding
163 s. 655.059.
164 (2)(a) Within 60 days after the unpaid balance of a loan
165 secured by a mortgage has been fully paid or paid pursuant to an
166 estoppel letter under subsection (1), whichever is earlier, the
167 mortgagee or mortgage servicer shall execute in writing an
168 instrument acknowledging release of the mortgage; have the
169 instrument acknowledged, or proven, and send it or cause it to
170 be sent for recording in the official records of the proper
171 county; and send or cause to be sent the recorded release to the
172 mortgagor or record title owner of the property. The prevailing
173 party in a civil action brought against the mortgagee or
174 mortgage servicer to enforce the requirements of this paragraph
175 is entitled to reasonable attorney fees and costs.
176 (b) The recorded release of the mortgage does not relieve
177 the mortgagor, or the mortgagor’s successors or assigns, from
178 any personal liability on the loan or other obligations
179 previously secured by the mortgage.
180 (3)(2) Within 60 days after the unpaid balance Whenever the
181 amount of money due on a any mortgage, lien, or judgment has
182 been fully paid to the person or party entitled to the payment
183 thereof, the mortgagee, creditor, or assignee, or the attorney
184 of record in the case of a judgment, to whom the payment was
185 made, shall execute in writing an instrument acknowledging
186 satisfaction of the mortgage, lien, or judgment; and have the
187 instrument acknowledged, or proven, and duly entered in the
188 official records of the proper county; and. Within 60 days after
189 the date of receipt of the full payment of the mortgage, lien,
190 or judgment, the person required to acknowledge satisfaction of
191 the mortgage, lien, or judgment shall send or cause to be sent
192 the recorded satisfaction to the person who has made the full
193 payment. In the case of a civil action arising out of this
194 section, The prevailing party in a civil action brought against
195 the creditor or assignee, or the attorney of record in the case
196 of a judgment, to enforce the requirements of this subsection is
197 entitled to reasonable attorney fees and costs.
198 (4)(3) When Whenever a writ of execution has been issued,
199 docketed, and indexed with a sheriff and the judgment upon which
200 it was issued has been fully paid, it is the responsibility of
201 the person party receiving payment to request, in writing,
202 addressed to the sheriff, return of the writ of execution as
203 fully satisfied.
204 Section 2. Paragraph (a) of subsection (1) and subsection
205 (2) of section 701.041, Florida Statutes, are amended to read:
206 701.041 Title insurer; mortgage release certificate.—
207 (1) DEFINITIONS.—For purposes of this section:
208 (a) “Estoppel letter” means a statement containing, at a
209 minimum, the information required in s. 701.04(1)(b) of the
210 amount of:
211 1. The unpaid balance of a loan secured by a mortgage,
212 including principal, interest, and any other charges properly
213 due under or secured by the mortgage.
214 2. Interest on a per-day basis for the unpaid balance.
215 (2) CERTIFICATE OF RELEASE.—An officer or duly appointed
216 agent of a title insurer may, on behalf of a mortgagor or a
217 person who acquired from the mortgagor title to all or a part of
218 the property described in a mortgage, execute a certificate of
219 release that complies with the requirements of this section and
220 record the certificate of release in the real property records
221 of each county in which the mortgage is recorded if a
222 satisfaction or release of the mortgage has not been executed
223 and recorded after the date payment in full of the loan properly
224 due under or secured by the mortgage was made in accordance with
225 an estoppel letter a payoff statement furnished by the mortgagee
226 or the mortgage servicer.
227 Section 3. The Legislature finds that the timeliness and
228 accuracy of an estoppel letter is critical because the parties
229 to a real estate transaction must rely on the estoppel letter to
230 establish the loan payoff amount necessary to release the
231 mortgage, which in turn will allow the owner to confer clean
232 title to a buyer or to refinance the property. The Legislature
233 further finds that estoppel letters increasingly contain
234 conditional language disclaiming the ability of an owner to rely
235 on the stated loan payoff amounts, extending even to the return
236 of such payments submitted by owners, creating unnecessary
237 delays in the efficient operation of this state’s real estate
238 market, which is a vital economic contributor to this state, and
239 imposing needless costs and burdens on property owners and
240 buyers. In addition, the Legislature finds that real estate
241 lending, mortgages, real estate transactions, and estoppel
242 letters are extensively regulated under both Florida and federal
243 law. The Legislature finds and determines that this act makes
244 changes to state law that appropriately balance the parties’
245 interests, are reasonable and necessary to serve and achieve an
246 important state interest, are necessary for the prosperity and
247 welfare of the state and its property owners and inhabitants,
248 and must be applied to existing mortgages in order to provide
249 effective relief.
250 Section 4. This act shall take effect October 1, 2022, and
251 applies to all mortgages existing as of that date and entered
252 into on or after that date, as well as to all loans secured by
253 such mortgages.