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.