Bill Text: FL S0696 | 2013 | Regular Session | Comm Sub
Bill Title: Timeshares
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2013-05-02 - Laid on Table, companion bill(s) passed, see CS/CS/CS/HB 73 (Ch. 2013-188), CS/HB 7025 (Ch. 2013-159) [S0696 Detail]
Download: Florida-2013-S0696-Comm_Sub.html
Florida Senate - 2013 CS for SB 696
By the Committee on Regulated Industries; and Senator Stargel
580-02035-13 2013696c1
1 A bill to be entitled
2 An act relating to timeshares; amending s. 718.112,
3 F.S.; specifying that certain provisions relating to
4 condominium board elections do not apply to timeshare
5 condominiums; amending s. 721.05, F.S.; revising the
6 definition of “timeshare estate”; amending s. 721.07,
7 F.S.; revising formula requirements for calculating
8 reserves for accommodations and facilities of real
9 property timeshare plans; amending s. 721.82, F.S.;
10 revising definitions applicable to the Timeshare Lien
11 Foreclosure Act; amending s. 721.84, F.S.; making an
12 editorial change; amending s. 721.855, F.S.; revising
13 procedure for the trustee foreclosure of assessment
14 liens; revising conditions under which a trustee may
15 sell a foreclosed encumbered timeshare interest;
16 revising and providing notice requirements; providing
17 for perfection of notice; providing requirements for a
18 notice of lis pendens; providing sale requirements;
19 providing exceptions for actions for failure to follow
20 the trustee foreclosure procedure; amending s.
21 721.856, F.S.; revising procedure for the trustee
22 foreclosure of mortgage liens; revising conditions
23 under which a trustee may sell a foreclosed encumbered
24 timeshare interest; revising and providing notice
25 requirements; providing for perfection of notice;
26 providing requirements for a notice of lis pendens;
27 providing sale requirements; providing exceptions for
28 actions for failure to follow the trustee foreclosure
29 procedure; providing an effective date.
30
31 Be It Enacted by the Legislature of the State of Florida:
32
33 Section 1. Paragraph (d) of subsection (2) of section
34 718.112, Florida Statutes, is amended to read:
35 718.112 Bylaws.—
36 (2) REQUIRED PROVISIONS.—The bylaws shall provide for the
37 following and, if they do not do so, shall be deemed to include
38 the following:
39 (d) Unit owner meetings.—
40 1. An annual meeting of the unit owners shall be held at
41 the location provided in the association bylaws and, if the
42 bylaws are silent as to the location, the meeting shall be held
43 within 45 miles of the condominium property. However, such
44 distance requirement does not apply to an association governing
45 a timeshare condominium.
46 2. Unless the bylaws provide otherwise, a vacancy on the
47 board caused by the expiration of a director’s term shall be
48 filled by electing a new board member, and the election must be
49 by secret ballot. An election is not required if the number of
50 vacancies equals or exceeds the number of candidates. For
51 purposes of this paragraph, the term “candidate” means an
52 eligible person who has timely submitted the written notice, as
53 described in sub-subparagraph 4.a., of his or her intention to
54 become a candidate. Except in a timeshare condominium, or if the
55 staggered term of a board member does not expire until a later
56 annual meeting, or if all members’ terms would otherwise expire
57 but there are no candidates, the terms of all board members
58 expire at the annual meeting, and such members may stand for
59 reelection unless prohibited by the bylaws. If the bylaws permit
60 staggered terms of no more than 2 years and upon approval of a
61 majority of the total voting interests, the association board
62 members may serve 2-year staggered terms. If the number of board
63 members whose terms expire at the annual meeting equals or
64 exceeds the number of candidates, the candidates become members
65 of the board effective upon the adjournment of the annual
66 meeting. Unless the bylaws provide otherwise, any remaining
67 vacancies shall be filled by the affirmative vote of the
68 majority of the directors making up the newly constituted board
69 even if the directors constitute less than a quorum or there is
70 only one director. In a condominium association of more than 10
71 units or in a condominium association that does not include
72 timeshare units or timeshare interests, coowners of a unit may
73 not serve as members of the board of directors at the same time
74 unless they own more than one unit or unless there are not
75 enough eligible candidates to fill the vacancies on the board at
76 the time of the vacancy. Any unit owner desiring to be a
77 candidate for board membership must comply with sub-subparagraph
78 4.a. and must be eligible to serve on the board of directors at
79 the time of the deadline for submitting a notice of intent to
80 run in order to have his or her name listed as a proper
81 candidate on the ballot or to serve on the board. A person who
82 has been suspended or removed by the division under this
83 chapter, or who is delinquent in the payment of any fee, fine,
84 or special or regular assessment as provided in paragraph (n),
85 is not eligible for board membership. A person who has been
86 convicted of any felony in this state or in a United States
87 District or Territorial Court, or who has been convicted of any
88 offense in another jurisdiction which would be considered a
89 felony if committed in this state, is not eligible for board
90 membership unless such felon’s civil rights have been restored
91 for at least 5 years as of the date such person seeks election
92 to the board. The validity of an action by the board is not
93 affected if it is later determined that a board member is
94 ineligible for board membership due to having been convicted of
95 a felony.
96 3. The bylaws must provide the method of calling meetings
97 of unit owners, including annual meetings. Written notice must
98 include an agenda, must be mailed, hand delivered, or
99 electronically transmitted to each unit owner at least 14 days
100 before the annual meeting, and must be posted in a conspicuous
101 place on the condominium property at least 14 continuous days
102 before the annual meeting. Upon notice to the unit owners, the
103 board shall, by duly adopted rule, designate a specific location
104 on the condominium property or association property where all
105 notices of unit owner meetings shall be posted. This requirement
106 does not apply if there is no condominium property or
107 association property for posting notices. In lieu of, or in
108 addition to, the physical posting of meeting notices, the
109 association may, by reasonable rule, adopt a procedure for
110 conspicuously posting and repeatedly broadcasting the notice and
111 the agenda on a closed-circuit cable television system serving
112 the condominium association. However, if broadcast notice is
113 used, the notice and agenda must be broadcast at least four
114 times every broadcast hour of each day that a posted notice is
115 otherwise required under this section. If broadcast notice is
116 provided, the notice and agenda must be broadcast in a manner
117 and for a sufficient continuous length of time so as to allow an
118 average reader to observe the notice and read and comprehend the
119 entire content of the notice and the agenda. Unless a unit owner
120 waives in writing the right to receive notice of the annual
121 meeting, such notice must be hand delivered, mailed, or
122 electronically transmitted to each unit owner. Notice for
123 meetings and notice for all other purposes must be mailed to
124 each unit owner at the address last furnished to the association
125 by the unit owner, or hand delivered to each unit owner.
126 However, if a unit is owned by more than one person, the
127 association must provide notice to the address that the
128 developer identifies for that purpose and thereafter as one or
129 more of the owners of the unit advise the association in
130 writing, or if no address is given or the owners of the unit do
131 not agree, to the address provided on the deed of record. An
132 officer of the association, or the manager or other person
133 providing notice of the association meeting, must provide an
134 affidavit or United States Postal Service certificate of
135 mailing, to be included in the official records of the
136 association affirming that the notice was mailed or hand
137 delivered in accordance with this provision.
138 4. The members of the board shall be elected by written
139 ballot or voting machine. Proxies may not be used in electing
140 the board in general elections or elections to fill vacancies
141 caused by recall, resignation, or otherwise, unless otherwise
142 provided in this chapter. This subparagraph does not apply to an
143 association governing a timeshare condominium.
144 a. At least 60 days before a scheduled election, the
145 association shall mail, deliver, or electronically transmit, by
146 separate association mailing or included in another association
147 mailing, delivery, or transmission, including regularly
148 published newsletters, to each unit owner entitled to a vote, a
149 first notice of the date of the election. Any unit owner or
150 other eligible person desiring to be a candidate for the board
151 must give written notice of his or her intent to be a candidate
152 to the association at least 40 days before a scheduled election.
153 Together with the written notice and agenda as set forth in
154 subparagraph 3., the association shall mail, deliver, or
155 electronically transmit a second notice of the election to all
156 unit owners entitled to vote, together with a ballot that lists
157 all candidates. Upon request of a candidate, an information
158 sheet, no larger than 8 1/2 inches by 11 inches, which must be
159 furnished by the candidate at least 35 days before the election,
160 must be included with the mailing, delivery, or transmission of
161 the ballot, with the costs of mailing, delivery, or electronic
162 transmission and copying to be borne by the association. The
163 association is not liable for the contents of the information
164 sheets prepared by the candidates. In order to reduce costs, the
165 association may print or duplicate the information sheets on
166 both sides of the paper. The division shall by rule establish
167 voting procedures consistent with this sub-subparagraph,
168 including rules establishing procedures for giving notice by
169 electronic transmission and rules providing for the secrecy of
170 ballots. Elections shall be decided by a plurality of ballots
171 cast. There is no quorum requirement; however, at least 20
172 percent of the eligible voters must cast a ballot in order to
173 have a valid election. A unit owner may not permit any other
174 person to vote his or her ballot, and any ballots improperly
175 cast are invalid. A unit owner who violates this provision may
176 be fined by the association in accordance with s. 718.303. A
177 unit owner who needs assistance in casting the ballot for the
178 reasons stated in s. 101.051 may obtain such assistance. The
179 regular election must occur on the date of the annual meeting.
180 Notwithstanding this sub-subparagraph, an election is not
181 required unless more candidates file notices of intent to run or
182 are nominated than board vacancies exist.
183 b. Within 90 days after being elected or appointed to the
184 board, each newly elected or appointed director shall certify in
185 writing to the secretary of the association that he or she has
186 read the association’s declaration of condominium, articles of
187 incorporation, bylaws, and current written policies; that he or
188 she will work to uphold such documents and policies to the best
189 of his or her ability; and that he or she will faithfully
190 discharge his or her fiduciary responsibility to the
191 association’s members. In lieu of this written certification,
192 within 90 days after being elected or appointed to the board,
193 the newly elected or appointed director may submit a certificate
194 of having satisfactorily completed the educational curriculum
195 administered by a division-approved condominium education
196 provider within 1 year before or 90 days after the date of
197 election or appointment. The written certification or
198 educational certificate is valid and does not have to be
199 resubmitted as long as the director serves on the board without
200 interruption. A director who fails to timely file the written
201 certification or educational certificate is suspended from
202 service on the board until he or she complies with this sub
203 subparagraph. The board may temporarily fill the vacancy during
204 the period of suspension. The secretary shall cause the
205 association to retain a director’s written certification or
206 educational certificate for inspection by the members for 5
207 years after a director’s election. Failure to have such written
208 certification or educational certificate on file does not affect
209 the validity of any board action.
210 5. Any approval by unit owners called for by this chapter
211 or the applicable declaration or bylaws, including, but not
212 limited to, the approval requirement in s. 718.111(8), must be
213 made at a duly noticed meeting of unit owners and is subject to
214 all requirements of this chapter or the applicable condominium
215 documents relating to unit owner decisionmaking, except that
216 unit owners may take action by written agreement, without
217 meetings, on matters for which action by written agreement
218 without meetings is expressly allowed by the applicable bylaws
219 or declaration or any law that provides for such action.
220 6. Unit owners may waive notice of specific meetings if
221 allowed by the applicable bylaws or declaration or any law. If
222 authorized by the bylaws, notice of meetings of the board of
223 administration, unit owner meetings, except unit owner meetings
224 called to recall board members under paragraph (j), and
225 committee meetings may be given by electronic transmission to
226 unit owners who consent to receive notice by electronic
227 transmission.
228 7. Unit owners have the right to participate in meetings of
229 unit owners with reference to all designated agenda items.
230 However, the association may adopt reasonable rules governing
231 the frequency, duration, and manner of unit owner participation.
232 8. A unit owner may tape record or videotape a meeting of
233 the unit owners subject to reasonable rules adopted by the
234 division.
235 9. Unless otherwise provided in the bylaws, any vacancy
236 occurring on the board before the expiration of a term may be
237 filled by the affirmative vote of the majority of the remaining
238 directors, even if the remaining directors constitute less than
239 a quorum, or by the sole remaining director. In the alternative,
240 a board may hold an election to fill the vacancy, in which case
241 the election procedures must conform to sub-subparagraph 4.a.
242 unless the association governs 10 units or fewer and has opted
243 out of the statutory election process, in which case the bylaws
244 of the association control. Unless otherwise provided in the
245 bylaws, a board member appointed or elected under this section
246 shall fill the vacancy for the unexpired term of the seat being
247 filled. Filling vacancies created by recall is governed by
248 paragraph (j) and rules adopted by the division.
249 10. This chapter does not limit the use of general or
250 limited proxies, require the use of general or limited proxies,
251 or require the use of a written ballot or voting machine for any
252 agenda item or election at any meeting of a timeshare
253 condominium association.
254
255 Notwithstanding subparagraph (b)2. and sub-subparagraph
256 4.a., an association of 10 or fewer units may, by affirmative
257 vote of a majority of the total voting interests, provide for
258 different voting and election procedures in its bylaws, which
259 may be by a proxy specifically delineating the different voting
260 and election procedures. The different voting and election
261 procedures may provide for elections to be conducted by limited
262 or general proxy.
263 Section 2. Subsection (34) of section 721.05, Florida
264 Statutes, is amended to read:
265 721.05 Definitions.—As used in this chapter, the term:
266 (34) “Timeshare estate” means a right to occupy a timeshare
267 unit, coupled with a freehold estate or an estate for years with
268 a future interest in a timeshare property or a specified portion
269 thereof. The term includes shall also mean an interest in a
270 condominium unit pursuant to s. 718.103, an interest in a
271 cooperative unit pursuant to s. 719.103, or a direct or indirect
272 an interest in a trust that complies in all respects with the
273 provisions of s. 721.08(2)(c)4., provided that the trust does
274 not contain any personal property timeshare interests. A
275 timeshare estate is a parcel of real property under the laws of
276 this state.
277 Section 3. Paragraph (t) of subsection (5) of section
278 721.07, Florida Statutes, is amended to read:
279 721.07 Public offering statement.—Prior to offering any
280 timeshare plan, the developer must submit a filed public
281 offering statement to the division for approval as prescribed by
282 s. 721.03, s. 721.55, or this section. Until the division
283 approves such filing, any contract regarding the sale of that
284 timeshare plan is subject to cancellation by the purchaser
285 pursuant to s. 721.10.
286 (5) Every filed public offering statement for a timeshare
287 plan which is not a multisite timeshare plan shall contain the
288 information required by this subsection. The division is
289 authorized to provide by rule the method by which a developer
290 must provide such information to the division.
291 (t) An estimated operating budget for the timeshare plan
292 and a schedule of the purchaser’s expenses shall be attached as
293 an exhibit and shall contain the following information:
294 1. The estimated annual expenses of the timeshare plan
295 collectible from purchasers by assessments. The estimated
296 payments by the purchaser for assessments shall also be stated
297 in the estimated amounts for the times when they will be due.
298 Expenses shall also be shown for the shortest timeshare period
299 offered for sale by the developer. If the timeshare plan
300 provides for the offer and sale of units to be used on a
301 nontimeshare basis, the estimated monthly and annual expenses of
302 such units shall be set forth in a separate schedule.
303 2. The estimated weekly, monthly, and annual expenses of
304 the purchaser of each timeshare interest, other than assessments
305 payable to the managing entity. Expenses which are personal to
306 purchasers that are not uniformly incurred by all purchasers or
307 that are not provided for or contemplated by the timeshare plan
308 documents may be excluded from this estimate.
309 3. The estimated items of expenses of the timeshare plan
310 and the managing entity, except as excluded under subparagraph
311 2., including, but not limited to, if applicable, the following
312 items, which shall be stated either as management expenses
313 collectible by assessments or as expenses of the purchaser
314 payable to persons other than the managing entity:
315 a. Expenses for the managing entity:
316 (I) Administration of the managing entity.
317 (II) Management fees.
318 (III) Maintenance.
319 (IV) Rent for facilities.
320 (V) Taxes upon timeshare property.
321 (VI) Taxes upon leased areas.
322 (VII) Insurance.
323 (VIII) Security provisions.
324 (IX) Other expenses.
325 (X) Operating capital.
326 (XI) Reserves for deferred maintenance and reserves for
327 capital expenditures, including:
328 (A) Reserves for deferred maintenance or capital
329 expenditures of accommodations and facilities of a real property
330 timeshare plan, if any. All reserves for any accommodations and
331 facilities of real property timeshare plans located in this
332 state shall be calculated using by a formula which is based upon
333 estimated life and replacement cost of each reserve item that
334 will provide funds equal to the total estimated deferred
335 maintenance expense or total estimated life and replacement cost
336 for an asset or group of assets over the remaining useful life
337 of the asset or group of assets. Funding formulas for reserves
338 shall be based on either a separate analysis of each of the
339 required assets using the straight-line accounting method or a
340 pooled analysis of two or more of the required assets using the
341 pooling accounting method. Reserves for deferred maintenance for
342 such accommodations and facilities shall include accounts for
343 roof replacement, building painting, pavement resurfacing,
344 replacement of timeshare unit furnishings and equipment, and any
345 other component, the useful life of which is less than the
346 useful life of the overall structure. For any accommodations and
347 facilities of real property timeshare plans located outside of
348 this state, the developer shall disclose the amount of reserves
349 for deferred maintenance or capital expenditures required by the
350 law of the situs state, if applicable, and maintained for such
351 accommodations and facilities.
352 (B) Reserves for deferred maintenance or capital
353 expenditures of accommodations and facilities of a personal
354 property timeshare plan, if any. If such reserves are
355 maintained, the estimated operating budget shall disclose the
356 methodology of how the reserves are calculated. If a personal
357 property timeshare plan does not require reserves, the following
358 statement, in conspicuous type, shall appear in both the budget
359 and the public offering statement:
360
361 The estimated operating budget for this personal property
362 timeshare plan does not include reserves for deferred
363 maintenance or capital expenditures; each timeshare interest may
364 be subject to substantial special assessments from time to time
365 because no such reserves exist.
366
367 (XII) Fees payable to the division.
368 b. Expenses for a purchaser:
369 (I) Rent for the timeshare unit, if subject to a lease.
370 (II) Rent payable by the purchaser directly to the lessor
371 or agent under any lease for the use of facilities, which use
372 and payment is a mandatory condition of ownership and is not
373 included in the common expenses or assessments for common
374 maintenance paid by the purchasers to the managing entity.
375 4. The estimated amounts shall be stated for a period of at
376 least 12 months and may distinguish between the period before
377 prior to the time that purchasers elect a majority of the board
378 of administration and the period after that date.
379 5. If the developer intends to guarantee the level of
380 assessments, such guarantee must be based upon a good faith
381 estimate of the revenues and expenses of the timeshare plan. The
382 guarantee must include a description of the following:
383 a. The specific time period measured in one or more
384 calendar or fiscal years during which the guarantee will be in
385 effect.
386 b. A statement that the developer will pay all common
387 expenses incurred in excess of the total revenues of the
388 timeshare plan pursuant to s. 721.15(2) if the developer has
389 excused himself or herself from the payment of assessments
390 during the guarantee period.
391 c. The level, expressed in total dollars, at which the
392 developer guarantees the budget. If the developer has reserved
393 the right to extend or increase the guarantee level pursuant to
394 s. 721.15(2), a disclosure must be included to that effect.
395 6. If the developer intends to provide a trust fund to
396 defer or reduce the payment of annual assessments, a copy of the
397 trust instrument shall be attached as an exhibit and shall
398 include a description of such arrangement, including, but not
399 limited to:
400 a. The specific amount of such trust funds and the source
401 of the funds.
402 b. The name and address of the trustee.
403 c. The investment methods permitted by the trust agreement.
404 d. A statement in conspicuous type that the funds from the
405 trust account may not cover all assessments and that there is no
406 guarantee that purchasers will not have to pay assessments in
407 the future.
408 7. The budget of a phase timeshare plan may contain a note
409 identifying the number of timeshare interests covered by the
410 budget, indicating the number of timeshare interests, if any,
411 estimated to be declared as part of the timeshare plan during
412 that calendar year, and projecting the common expenses for the
413 timeshare plan based upon the number of timeshare interests
414 estimated to be declared as part of the timeshare plan during
415 that calendar year.
416 Section 4. Subsections (9) and (11) of section 721.82,
417 Florida Statutes, are amended to read:
418 721.82 Definitions.—As used in this part, the term:
419 (9) “Notice address” means:
420 (a) As to an assessment lien, the address of the owner of a
421 timeshare interest as reflected by the books and records of the
422 timeshare plan under ss. 721.13(4) and 721.15(7).
423 (b) As to a mortgage lien:
424 1. The address of the mortgagor as set forth in the
425 mortgage, the promissory note or a separate document executed by
426 the mortgagor at the time the mortgage lien was created, or the
427 most current address of the mortgagor according to the records
428 of the mortgagee; and
429 2. If the owner of the timeshare interest is different from
430 the mortgagor, the address of the owner of the timeshare
431 interest as reflected by the books and records of the mortgagee.
432 (c) As to a junior interestholder, the address as set forth
433 in the recorded instrument creating the junior lien or interest,
434 or in any recorded amendment thereto changing the address, or in
435 any written notification by the junior interestholder to the
436 foreclosing lienholder changing the address.
437 (d) As to an owner of a timeshare interest, mortgagor, or
438 junior interestholder whose current address is not the address
439 as determined by paragraph (a), paragraph (b), or paragraph (c),
440 such address as is known to be the current address.
441 (11) “Permitted delivery service” means any nationally
442 recognized common carrier delivery service, or international
443 airmail service that allows for return receipt service, or a
444 service recognized by an international jurisdiction as the
445 equivalent of certified, registered mail for that jurisdiction.
446 Section 5. Subsection (6) of section 721.84, Florida
447 Statutes, is amended to read:
448 721.84 Appointment of a registered agent; duties.—
449 (6) Unless otherwise provided in this section, a registered
450 agent in receipt of any notice or other document addressed from
451 the lienholder to the obligor in care of the registered agent at
452 the registered office must mail, by first-class first class mail
453 if the obligor’s address is within the United States, and by
454 international air mail if the obligor’s address is outside the
455 United States, with postage fees prepaid, such notice or
456 documents to the obligor at the obligor’s last designated
457 address within 5 days after receipt.
458 Section 6. Paragraph (c) of subsection (2), subsections (4)
459 and (5), paragraph (c) of subsection (6), paragraph (b) of
460 subsection (7), and paragraph (b) of subsection (14) of section
461 721.855, Florida Statutes, are amended to read:
462 721.855 Procedure for the trustee foreclosure of assessment
463 liens.—The provisions of this section establish a trustee
464 foreclosure procedure for assessment liens.
465 (2) INITIATING THE USE OF A TRUSTEE FORECLOSURE PROCEDURE.—
466 (c)1. In order to initiate a trustee foreclosure procedure
467 against a timeshare interest, the lienholder shall deliver an
468 affidavit to the trustee that identifies the obligor; the notice
469 address of the obligor; the timeshare interest; the date that
470 the notice of the intent to file a lien was given, if
471 applicable; the official records book and page number where the
472 claim of lien is recorded; and the name and notice address of
473 any junior interestholder. The affidavit shall be accompanied by
474 a title search of the timeshare interest identifying any junior
475 interestholders of record, and the effective date of the title
476 search must be a date that is within 60 calendar days before the
477 date of the affidavit.
478 2. The affidavit shall also state the facts that establish
479 that the obligor has defaulted in the obligation to make a
480 payment under a specified provision of the timeshare instrument
481 or applicable law.
482 3. The affidavit shall also specify the amounts secured by
483 the lien as of the date of the affidavit and a per diem amount
484 to account for further accrual of the amounts secured by the
485 lien.
486 4. The affidavit shall also state that the assessment lien
487 was properly created and authorized pursuant to the timeshare
488 instrument and applicable law.
489 (4) CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A
490 trustee may sell an encumbered timeshare interest foreclosed
491 under this section if:
492 (a) The trustee has received the affidavit from the
493 lienholder under paragraph (2)(c);
494 (b) The trustee has not received a written objection to the
495 use of the trustee foreclosure procedure under paragraph (3)(a)
496 and the timeshare interest was not redeemed under paragraph
497 (3)(b);
498 (c) There is no lis pendens recorded and pending against
499 the same timeshare interest before the recording of the notice
500 of lis pendens pursuant to paragraph (5)(h), and the trustee has
501 not been served notice of the filing of any action to enjoin the
502 trustee foreclosure sale;
503 (d) The trustee has provided written notice of default and
504 intent to foreclose as required under subsection (5) and a
505 period of at least 30 calendar days has elapsed after such
506 notice is deemed perfected under subsection (5); and
507 (e) The notice of sale required under subsection (6) has
508 been recorded in the official records of the county or counties
509 in which the timeshare interest is located; and
510 (f) The lienholder has provided the trustee with a title
511 search of the timeshare interest identifying any junior
512 interestholders of record, the effective date of which search
513 must be within 60 calendar days before the date it is delivered
514 to the trustee. If a title search reveals that incorrect
515 obligors or junior interestholders have been served or
516 additional obligors or junior interestholders have not been
517 served, the foreclosure action may not proceed until the notices
518 required pursuant to this section have been served on the
519 correct or additional obligors or junior interestholders and all
520 applicable time periods have expired.
521 (5) NOTICE OF DEFAULT AND INTENT TO FORECLOSE.—
522 (a) In any foreclosure proceeding under this section, the
523 trustee is required to notify the obligor of the proceeding by
524 sending the obligor a written notice of default and intent to
525 foreclose to the notice address of the obligor by certified
526 mail, registered mail, or permitted delivery service, return
527 receipt requested, and by first-class mail or permitted delivery
528 service, postage prepaid, as follows:
529 1. The notice of default and intent to foreclose shall
530 identify the obligor, the notice address of the obligor, the
531 legal description of the timeshare interest, the nature of the
532 default, the amounts secured by the lien, and a per diem amount
533 to account for further accrual of the amounts secured by the
534 lien and shall state the method by which the obligor may cure
535 the default, including the period of time after the date of the
536 notice of default and intent to foreclose within which the
537 obligor may cure the default.
538 2. The notice of default and intent to foreclose shall
539 include an objection form with which the obligor can object to
540 the use of the trustee foreclosure procedure by signing and
541 returning the objection form to the trustee. The objection form
542 shall identify the obligor, the notice address of the obligor,
543 the timeshare interest, and the return address of the trustee
544 and shall state: “The undersigned obligor exercises the
545 obligor’s right to object to the use of the trustee foreclosure
546 procedure contained in section 721.855, Florida Statutes.”
547 3. The notice of default and intent to foreclose shall also
548 contain a statement in substantially the following form:
549
550 If you fail to cure the default as set forth in this
551 notice or take other appropriate action with regard to
552 this foreclosure matter, you risk losing ownership of
553 your timeshare interest through the trustee
554 foreclosure procedure established in section 721.855,
555 Florida Statutes. You may choose to sign and send to
556 the trustee the enclosed objection form, exercising
557 your right to object to the use of the trustee
558 foreclosure procedure. Upon the trustee’s receipt of
559 your signed objection form, the foreclosure of the
560 lien with respect to the default specified in this
561 notice shall be subject to the judicial foreclosure
562 procedure only. You have the right to cure your
563 default in the manner set forth in this notice at any
564 time before the trustee’s sale of your timeshare
565 interest. If you do not object to the use of the
566 trustee foreclosure procedure, you will not be subject
567 to a deficiency judgment even if the proceeds from the
568 sale of your timeshare interest are insufficient to
569 offset the amounts secured by the lien.
570 4. The trustee shall also mail a copy of the notice of
571 default and intent to foreclose, without the objection form, to
572 the notice address of any junior interestholder by certified
573 mail, registered mail, or permitted delivery service, return
574 receipt requested, and by first-class mail or permitted delivery
575 service, postage prepaid.
576 5. Notice under this paragraph is considered perfected upon
577 the trustee receiving the return receipt bearing the signature
578 of the obligor or junior interestholder, as applicable, within
579 30 calendar days after the trustee sent the notice under this
580 paragraph. Notice under this paragraph is not perfected if:
581 a. The notice is returned as undeliverable within 30
582 calendar days after the trustee sent the notice;, if
583 b. The trustee cannot, in good faith, ascertain from the
584 receipt that the obligor or junior interestholder, as
585 applicable, is the person who signed the receipt because all or
586 a portion of the obligor’s or junior interestholder’s name is
587 not on the signed receipt or because the trustee cannot
588 otherwise determine that the obligor or junior interestholder
589 signed the receipt;, or
590 c. if The receipt from the obligor or junior
591 interestholder, as applicable, is returned or refused within 30
592 calendar days after the trustee sent the notice.
593 (b) If the notice required by paragraph (a) is returned as
594 undeliverable within 30 calendar days after the trustee sent the
595 notice, the trustee shall perform a diligent search and inquiry
596 to obtain a different address for the obligor or junior
597 interestholder. For purposes of this paragraph, any address
598 known and used by the lienholder for sending regular mailings or
599 other communications from the lienholder to the obligor or
600 junior interestholder, as applicable, shall be included with
601 other addresses produced from the diligent search and inquiry,
602 if any.
603 1. If the trustee’s diligent search and inquiry produces an
604 address different from the notice address, the trustee shall
605 mail a copy of the notice by certified mail, registered mail, or
606 permitted delivery service, return receipt requested, and by
607 first-class mail or permitted delivery service, postage prepaid,
608 to the new address. Notice under this subparagraph is considered
609 perfected upon the trustee receiving the return receipt bearing
610 the signature of the obligor or junior interestholder, as
611 applicable, within 30 calendar days after the trustee sent the
612 notice under this subparagraph. Notice under this subparagraph
613 is not perfected if the receipt from the obligor or junior
614 interestholder, as applicable, is refused, returned, or the
615 trustee cannot, in good faith, ascertain from the receipt that
616 the obligor or junior interestholder, as applicable, is the
617 person who signed the receipt because all or a portion of the
618 obligor’s or junior interestholder’s name is not on the signed
619 receipt or because the trustee cannot otherwise determine that
620 the obligor or junior interestholder signed the receipt or the
621 receipt from the obligor or junior interestholder, as
622 applicable, is returned refused. If the trustee does not perfect
623 notice under this subparagraph, the trustee shall perfect
624 service in the manner set forth in paragraph (c).
625 2. If the trustee’s diligent search and inquiry does not
626 locate a different address for the obligor or junior
627 interestholder, as applicable, the trustee may perfect notice
628 against that person under paragraph (c).
629 (c) If the notice is not perfected under subparagraph
630 (a)5., and such notice was not returned as undeliverable, or if
631 the notice was not perfected under subparagraph (b)1., the
632 trustee may perfect notice by publication in a newspaper of
633 general circulation in the county or counties in which the
634 timeshare interest is located. The notice shall appear at least
635 once a week for 2 consecutive weeks. The notice of default and
636 intent to foreclose perfected by publication shall identify the
637 obligor, the notice address of the obligor, the legal
638 description of the timeshare interest, the nature of the action
639 in short and simple terms, the name and contact information of
640 the trustee, and the period of time after the date of the notice
641 of default and intent to foreclose within which the obligor may
642 cure the default. The trustee may group an unlimited number of
643 notices in the same publication, if all of the notices pertain
644 to the same timeshare plan. Notice under this paragraph is
645 considered perfected upon publication as required in this
646 paragraph.
647 (d) If notice is perfected under subparagraph (a)5., the
648 trustee shall execute an affidavit in recordable form setting
649 forth the manner in which notice was perfected and attach the
650 affidavit to the certificate of compliance set forth in
651 subsection (9). The affidavit shall state the nature of the
652 notice, the date on which the notice was mailed, the name and
653 address on the envelope containing the notice, the manner in
654 which the notice was mailed, and the basis for that knowledge.
655 (e) If notice is perfected under subparagraph (b)1., the
656 trustee shall execute an affidavit in recordable form setting
657 forth the manner in which notice was perfected and attach the
658 affidavit to the certificate of compliance set forth in
659 subsection (9). The affidavit shall state the nature of the
660 notice, the dates on which the notice was mailed, the name and
661 addresses on the envelopes containing the notice, the manner in
662 which the notices were mailed, and the fact that a signed
663 receipt from the certified mail, registered mail, or permitted
664 delivery service was timely received, and the name and address
665 on the envelopes containing the notice.
666 (f) If notice is perfected by publication under paragraph
667 (c), the trustee shall execute an affidavit in recordable form
668 setting forth the manner in which notice was perfected and
669 attach the affidavit to the certificate of compliance set forth
670 in subsection (9). The affidavit shall include all the
671 information contained in either paragraph (d) or paragraph (e),
672 as applicable, shall state that the notice was perfected by
673 publication and shall state that after diligent search and
674 inquiry was made for the current address for the person, if
675 paragraph (b) applies. The affidavit and shall also include a
676 statement that notice was perfected by publication, and shall
677 set forth the information required, as applicable, by s. 49.041
678 in the case of a natural person or s. 49.051 in the case of a
679 corporation, whichever is applicable. No other action of the
680 trustee is necessary to perfect notice.
681 (g) Notice under paragraph (a) or paragraph (b) is
682 perfected as to all obligors who have the same address if notice
683 is perfected as to at least one obligor at that address pursuant
684 to the provisions of this subsection.
685 (h) The initiation of a trustee foreclosure action operates
686 as a lis pendens on the timeshare interest pursuant to s. 48.23
687 if a notice of lis pendens is recorded in the official records
688 of the county in which the deed conveying the timeshare interest
689 to the obligor was recorded and such notice has not expired
690 pursuant to s. 48.23(2) or been withdrawn or discharged. The
691 notice of lis pendens must contain the following:
692 1. The name of the obligor.
693 2. The date of the initiation of the trustee foreclosure
694 action, which date shall be the date of the sending of the
695 notice of default and intent to foreclose to the obligor.
696 3. The name and contact information of the trustee.
697 4. The legal description of the timeshare interest.
698 5. A statement that a trustee foreclosure action has been
699 initiated against the timeshare interest pursuant to this
700 section.
701 (6) NOTICE OF SALE.—
702 (c) After the date of recording of the notice of sale,
703 notice is not required to be given to any person claiming an
704 interest in the timeshare interest except as provided in this
705 section. If a notice of lis pendens has not previously been
706 recorded pursuant to paragraph (5)(h), the recording of the
707 notice of sale has the same force and effect as the filing of a
708 lis pendens in a judicial proceeding under s. 48.23.
709 (7) MANNER OF SALE.—
710 (b) The trustee shall conduct the sale and act as the
711 auctioneer. The trustee may use a third party to conduct the
712 sale on behalf of the trustee and the trustee is liable for the
713 conduct of the sale and the actions of the third party with
714 respect to the conduct of the sale.
715 (14) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
716 PROCEDURE.—
717 (b) Any trustee who intentionally violates the provisions
718 of this section concerning the trustee foreclosure procedure
719 commits a felony of the third degree, punishable as provided in
720 s. 775.082, s. 775.083, or s. 775.084. A trustee who incorrectly
721 ascertains that the obligor signed the return receipt as
722 required in s. 721.855(5) does not violate this section if the
723 trustee made a good faith effort to properly ascertain that the
724 obligor signed the return receipt in accordance with subsection
725 (5).
726 Section 7. Paragraph (b) of subsection (2), subsections (4)
727 and (5), paragraphs (c) and (d) of subsection (6), paragraph (b)
728 of subsection (7), and paragraph (b) of subsection (13) of
729 section 721.856, Florida Statutes, are amended to read:
730 721.856 Procedure for the trustee foreclosure of mortgage
731 liens.—The provisions of this section establish a trustee
732 foreclosure procedure for mortgage liens.
733 (2) INITIATING THE TRUSTEE FORECLOSURE OF MORTGAGE LIENS.—
734 (b)1. In order to initiate a trustee foreclosure procedure
735 against a timeshare interest, the lienholder shall deliver an
736 affidavit to the trustee that identifies the obligor, the notice
737 address of the obligor, the timeshare interest, the official
738 records book and page number where the mortgage is recorded, and
739 the name and notice address of any junior interestholder. The
740 affidavit shall be accompanied by a title search of the
741 timeshare interest identifying any junior interestholders of
742 record, and the effective date of the title search must be a
743 date that is within 60 calendar days before the date of the
744 affidavit.
745 2. The affidavit shall also state the facts that establish
746 that the obligor has defaulted in the obligation to make a
747 payment under a specified provision of the mortgage or is
748 otherwise deemed in uncured default under a specified provision
749 of the mortgage.
750 3. The affidavit shall also specify the amounts secured by
751 the lien as of the date of the affidavit and a per diem amount
752 to account for further accrual of the amounts secured by the
753 lien.
754 4. The affidavit shall also state that the appropriate
755 amount of documentary stamp tax and intangible taxes has been
756 paid upon recording of the mortgage, or otherwise paid to the
757 state.
758 5. The affidavit shall also state that the lienholder is
759 the holder of the note and has complied with all preconditions
760 in the note and mortgage to determine the amounts secured by the
761 lien and to initiate the use of the trustee foreclosure
762 procedure.
763 (4) CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A
764 trustee may sell an encumbered timeshare interest foreclosed
765 under this section if:
766 (a) The trustee has received the affidavit from the
767 lienholder under paragraph (2)(b);
768 (b) The trustee has not received a written objection to the
769 use of the trustee foreclosure procedure under paragraph (3)(a)
770 and the timeshare interest was not redeemed under paragraph
771 (3)(b);
772 (c) There is no lis pendens recorded and pending against
773 the same timeshare interest before the initiation of the trustee
774 foreclosure action and provided a notice of lis pendens has been
775 recorded pursuant to paragraph (5)(h), and the trustee has not
776 been served notice of the filing of any action to enjoin the
777 trustee foreclosure sale;
778 (d) The trustee is in possession of the original promissory
779 note executed by the mortgagor and secured by the mortgage lien;
780 (e) The trustee has provided written notice of default and
781 intent to foreclose as required under subsection (5) and a
782 period of at least 30 calendar days has elapsed after such
783 notice is deemed perfected under subsection (5); and
784 (f) The notice of sale required under subsection (6) has
785 been recorded in the official records of the county in which the
786 mortgage was recorded; and
787 (g) The lienholder has provided the trustee with a title
788 search of the timeshare interest identifying any junior
789 interestholders of record, the effective date of which search
790 must be within 60 calendar days before the date it is delivered
791 to the trustee. If a title search reveals that incorrect
792 obligors or junior interestholders have been served or
793 additional obligors or junior interestholders have not been
794 served, the foreclosure action may not proceed until the notices
795 required pursuant to this section have been served on the
796 correct or additional obligors or junior interestholders and all
797 applicable time periods have expired.
798 (5) NOTICE OF DEFAULT AND INTENT TO FORECLOSE.—
799 (a) In any foreclosure proceeding under this section, the
800 trustee is required to notify the obligor of the proceeding by
801 sending the obligor a written notice of default and intent to
802 foreclose to the notice address of the obligor by certified
803 mail, registered mail, or permitted delivery service, return
804 receipt requested, and by first-class mail or permitted delivery
805 service, postage prepaid, as follows:
806 1. The notice of default and intent to foreclose shall
807 identify the obligor, the notice address of the obligor, the
808 legal description of the timeshare interest, the nature of the
809 default, the amounts secured by the lien, and a per diem amount
810 to account for further accrual of the amounts secured by the
811 lien and shall state the method by which the obligor may cure
812 the default, including the period of time after the date of the
813 notice of default and intent to foreclose within which the
814 obligor may cure the default.
815 2. The notice of default and intent to foreclose shall
816 include an objection form with which the obligor can object to
817 the use of the trustee foreclosure procedure by signing and
818 returning the objection form to the trustee. The objection form
819 shall identify the obligor, the notice address of the obligor,
820 the timeshare interest, and the return address of the trustee
821 and shall state: “The undersigned obligor exercises the
822 obligor’s right to object to the use of the trustee foreclosure
823 procedure contained in section 721.856, Florida Statutes.”
824 3. The notice of default and intent to foreclose shall also
825 contain a statement in substantially the following form:
826
827 If you fail to cure the default as set forth in this
828 notice or take other appropriate action with regard to
829 this foreclosure matter, you risk losing ownership of
830 your timeshare interest through the trustee
831 foreclosure procedure established in section 721.856,
832 Florida Statutes. You may choose to sign and send to
833 the trustee the enclosed objection form, exercising
834 your right to object to the use of the trustee
835 foreclosure procedure. Upon the trustee’s receipt of
836 your signed objection form, the foreclosure of the
837 lien with respect to the default specified in this
838 notice shall be subject to the judicial foreclosure
839 procedure only. You have the right to cure your
840 default in the manner set forth in this notice at any
841 time before the trustee’s sale of your timeshare
842 interest. If you do not object to the use of the
843 trustee foreclosure procedure, you will not be subject
844 to a deficiency judgment even if the proceeds from the
845 sale of your timeshare interest are insufficient to
846 offset the amounts secured by the lien.
847
848 4. The trustee shall also mail a copy of the notice of
849 default and intent to foreclose, without the objection form, to
850 the notice address of any junior interestholder by certified
851 mail, registered mail, or permitted delivery service, return
852 receipt requested, and by first-class mail or permitted delivery
853 service, postage prepaid.
854 5. Notice under this paragraph is considered perfected upon
855 the trustee receiving the return receipt bearing the signature
856 of the obligor or junior interestholder, as applicable, within
857 30 calendar days after the trustee sent the notice under this
858 paragraph. Notice under this paragraph is not perfected if:
859 a. The notice is returned as undeliverable within 30
860 calendar days after the trustee sent the notice;, if
861 b. The trustee cannot, in good faith, ascertain from the
862 receipt that the obligor or junior interestholder, as
863 applicable, is the person who signed the receipt because all or
864 a portion of the obligor’s or junior interestholder’s name is
865 not on the signed receipt or the trustee cannot otherwise
866 determine that the obligor or junior interestholder signed the
867 receipt;, or
868 c. if The receipt from the obligor or junior
869 interestholder, as applicable, is returned or refused within 30
870 calendar days after the trustee sent the notice.
871 (b) If the notice required by paragraph (a) is returned as
872 undeliverable within 30 calendar days after the trustee sent the
873 notice, the trustee shall perform a diligent search and inquiry
874 to obtain a different address for the obligor or junior
875 interestholder. For purposes of this paragraph, any address
876 known and used by the lienholder for sending regular mailings or
877 other communications from the lienholder to the obligor or
878 junior interestholder, as applicable, shall be included with
879 other addresses produced from the diligent search and inquiry,
880 if any.
881 1. If the trustee’s diligent search and inquiry produces an
882 address different from the notice address, the trustee shall
883 mail a copy of the notice by certified mail, registered mail, or
884 permitted delivery service, return receipt requested, and by
885 first-class mail or permitted delivery service, postage prepaid,
886 to the new address. Notice under this subparagraph is considered
887 perfected upon the trustee receiving the return receipt bearing
888 the signature of the obligor or junior interestholder, as
889 applicable, within 30 calendar days after the trustee sent the
890 notice under this subparagraph. Notice under this subparagraph
891 is not perfected if the receipt from the obligor or junior
892 interestholder is refused, returned, or the trustee cannot, in
893 good faith, ascertain from the receipt that the obligor or
894 junior interestholder, as applicable, is the person who signed
895 the receipt because all or a portion of the obligor’s or junior
896 interestholder’s name is not on the signed receipt or because
897 the trustee cannot otherwise determine that the obligor or
898 junior interestholder signed the receipt or the receipt from the
899 obligor or junior interestholder, as applicable, is returned
900 refused. If the trustee does not perfect notice under this
901 subparagraph, the trustee shall perfect service in the manner
902 set forth in paragraph (c).
903 2. If the trustee’s diligent search and inquiry does not
904 locate a different address for the obligor or junior
905 interestholder, as applicable, the trustee may perfect notice
906 against that person under paragraph (c).
907 (c) If the notice is not perfected under subparagraph
908 (a)5., and such notice was not returned as undeliverable, or if
909 the notice was not perfected under subparagraph (b)1., the
910 trustee may perfect notice by publication in a newspaper of
911 general circulation in the county or counties in which the
912 timeshare interest is located. The notice shall appear at least
913 once a week for 2 consecutive weeks. The notice of default and
914 intent to foreclose perfected by publication shall identify the
915 obligor, the notice address of the obligor, the legal
916 description of the timeshare interest, the nature of the action
917 in short and simple terms, the name and contact information of
918 the trustee, and the period of time after the date of the notice
919 of default and intent to foreclose within which the obligor may
920 cure the default. The trustee may group an unlimited number of
921 notices in the same publication, if all of the notices pertain
922 to the same timeshare plan. Notice under this paragraph is
923 considered perfected upon publication as required in this
924 paragraph.
925 (d) If notice is perfected under subparagraph (a)5., the
926 trustee shall execute an affidavit in recordable form setting
927 forth the manner in which notice was perfected and attach the
928 affidavit to the certificate of compliance set forth in
929 subsection (9). The affidavit shall state the nature of the
930 notice, the date on which the notice was mailed, the name and
931 address on the envelope containing the notice, the manner in
932 which the notice was mailed, and the basis for that knowledge.
933 (e) If notice is perfected under subparagraph (b)1., the
934 trustee shall execute an affidavit in recordable form setting
935 forth the manner in which notice was perfected and attach the
936 affidavit to the certificate of compliance set forth in
937 subsection (9). The affidavit shall state the nature of the
938 notice, the dates on which the notice was mailed, the name and
939 addresses on the envelopes containing the notice, the manner in
940 which the notice was mailed, and the fact that a signed receipt
941 from the certified mail, registered mail, or permitted delivery
942 service was timely received, and the name and address on the
943 envelopes containing the notice.
944 (f) If notice is perfected under paragraph (c), the trustee
945 shall execute an affidavit in recordable form setting forth the
946 manner in which notice was perfected and attach the affidavit to
947 the certificate of compliance set forth in subsection (9). The
948 affidavit shall include all the information contained in either
949 paragraph (d) or paragraph (e), as applicable, shall state that
950 the notice was perfected by publication and shall state that
951 after diligent search and inquiry was made for the current
952 address for the person, if paragraph (b) applies. The affidavit
953 shall also include a statement that notice was perfected by
954 publication, and shall set forth the information required, as
955 applicable, by s. 49.041 in the case of a natural person or s.
956 49.051 in the case of a corporation, whichever is applicable. No
957 other action of the trustee is necessary to perfect notice.
958 (g) Notice under paragraph (a) or paragraph (b) is
959 perfected as to all obligors who have the same address if notice
960 is perfected as to at least one obligor at that address pursuant
961 to the provisions of this subsection.
962 (h) The initiation of a trustee foreclosure action operates
963 as a lis pendens on the timeshare interest pursuant to s. 48.23
964 if a notice of lis pendens is recorded in the official records
965 of the county or counties in which the mortgage is recorded and
966 such notice has not expired pursuant to s. 48.23(2) or been
967 withdrawn or discharged. The notice of lis pendens must contain
968 the following:
969 1. The name of the obligor.
970 2. The date of the initiation of the trustee foreclosure
971 action, which date shall be the date of the sending of the
972 notice of default and intent to foreclose to the obligor.
973 3. The name and contact information of the trustee.
974 4. The legal description of the timeshare interest.
975 5. A statement that a trustee foreclosure action has been
976 initiated against the timeshare interest pursuant to this
977 section.
978 (6) NOTICE OF SALE.—
979 (c) After the date of recording of the notice of sale,
980 notice is not required to be given to any person claiming an
981 interest in the timeshare interest except as provided in this
982 section. If a notice of lis pendens has not previously been
983 recorded pursuant to paragraph (5)(h), the recording of the
984 notice of sale has the same force and effect as the filing of a
985 lis pendens in a judicial proceeding under s. 48.23.
986 (d)1. The trustee shall publish the notice of sale in a
987 newspaper of general circulation in the county or counties in
988 which the timeshare interest is located at least once a week for
989 2 consecutive weeks before the date of the sale. The last
990 publication shall occur at least 5 calendar days before the
991 sale.
992 2. The trustee may group an unlimited number of notices of
993 sale in the same publication, if all of the notices of sale
994 pertain to the same timeshare plan.
995 (7) MANNER OF SALE.—
996 (b) The trustee shall conduct the sale and act as the
997 auctioneer. The trustee may use a third party to conduct the
998 sale on behalf of the trustee and the trustee is liable for the
999 conduct of the sale and the actions of the third party with
1000 respect to the conduct of the sale.
1001 (13) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE
1002 PROCEDURE.—
1003 (b) Any trustee who intentionally violates the provisions
1004 of this section concerning the trustee foreclosure procedure
1005 commits a felony of the third degree, punishable as provided in
1006 s. 775.082, s. 775.083, or s. 775.084. A trustee who incorrectly
1007 ascertains that the obligor signed the return receipt as
1008 required in s. 721.856(5) does not violate this section if the
1009 trustee made a good faith effort to properly ascertain that it
1010 is the obligor who signed the return receipt in accordance with
1011 subsection (5).
1012 Section 8. This act shall take effect July 1, 2013.
