Bill Text: FL S2358 | 2010 | Regular Session | Comm Sub

---

Bill Title: Foreclosures [CPSC]

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2010-04-29 - Placed on Special Order Calendar; Read 2nd time -SJ 01011; Amendment(s) adopted (918228) -SJ 01012; Substituted CS/CS/HB 1411 -SJ 01012; Laid on Table, companion bill(s) passed, see CS/CS/HB 1411 (Ch. 2010-134) -SJ 01012 [S2358 Detail]

Download: Florida-2010-S2358-Comm_Sub.html

---

 
Florida Senate - 2010                      CS for CS for SB 2358 
 
By the Committees on Judiciary; and Regulated Industries; and 
Senator Gardiner 
590-04406A-10                                         20102358c2 
1                        A bill to be entitled 
2         An act relating to foreclosures; amending s. 721.07, 
3         F.S.; providing lien disclosure requirements for filed 
4         public offering statements for certain timeshare 
5         plans; amending s. 721.13, F.S.; requiring officers, 
6         directors, and agents of a timeshare owners’ 
7         association to act in good faith; providing for 
8         damages; providing exceptions; amending s. 721.16, 
9         F.S.; authorizing a managing entity to bring a 
10         judicial action or a trustee procedure to foreclose 
11         certain liens under specified conditions; revising 
12         when a lien is effective; providing a directive to the 
13         Division of Statutory Revision to rename part III of 
14         ch. 721, F.S., to conform to changes made by the act; 
15         amending s. 721.81, F.S.; revising and providing 
16         legislative purposes of part III; amending s. 721.82, 
17         F.S.; revising and providing definitions; amending s. 
18         721.83, F.S., relating to consolidation of foreclosure 
19         actions; clarifying application to judicial 
20         foreclosure actions; amending s. 721.85, F.S., 
21         relating to service to notice address or on registered 
22         agent; conforming provisions to changes made by the 
23         act; creating s. 721.855, F.S.; establishing 
24         procedures for the trustee foreclosure of assessment 
25         liens; providing for the appointment of a trustee; 
26         providing recording requirements for such liens; 
27         providing procedures for the initiation of a trustee 
28         foreclosure procedure against a timeshare interest; 
29         providing procedures for an obligor’s objection to the 
30         trustee foreclosure procedure; providing conditions to 
31         a trustee’s exercise of power of sale; providing 
32         requirements for a notice of default and intent to 
33         sell; providing requirements for a notice of sale; 
34         providing requirements for the sale by auction of 
35         foreclosed encumbered timeshare interests; providing 
36         requirements for a trustee’s certificate of 
37         compliance; providing for the effect of a trustee’s 
38         sale; providing requirements for a trustee’s deed; 
39         providing for the disposition of proceeds of the sale; 
40         providing that the trustee foreclosure procedure does 
41         not impair or otherwise affect the right to bring 
42         certain actions; providing for application; providing 
43         for actions for failure to follow the trustee 
44         foreclosure procedure; creating s. 721.856, F.S.; 
45         establishing procedures for the trustee foreclosure of 
46         mortgage liens; providing for the appointment of a 
47         trustee; providing recording requirements for such 
48         liens; providing procedures for the initiation of a 
49         trustee foreclosure procedure against a timeshare 
50         interest; providing procedures for an obligor’s 
51         objection to the trustee foreclosure procedure; 
52         providing conditions to a trustee’s exercise of power 
53         of sale; providing requirements for a notice of 
54         default and intent to sell; providing requirements for 
55         a notice of sale; providing requirements for the sale 
56         by auction of foreclosed encumbered timeshare 
57         interests; providing requirements for a trustee’s 
58         certificate of compliance; providing for the effect of 
59         a trustee’s sale; providing requirements for a 
60         trustee’s deed; providing for the disposition of 
61         proceeds of the sale; providing that the trustee 
62         foreclosure procedure does not impair or otherwise 
63         affect the right to bring certain actions; providing 
64         for actions for failure to follow the trustee 
65         foreclosure procedure; amending s. 721.86, F.S.; 
66         providing for priority of application in case of 
67         conflict; conforming terminology to changes made by 
68         the act; amending s. 721.20, F.S.; revising exemptions 
69         from certain licensing requirements; providing an 
70         effective date. 
71 
72  Be It Enacted by the Legislature of the State of Florida: 
73 
74         Section 1. Paragraph (jj) is added to subsection (5) of 
75  section 721.07, Florida Statutes, to read: 
76         721.07 Public offering statement.—Prior to offering any 
77  timeshare plan, the developer must submit a filed public 
78  offering statement to the division for approval as prescribed by 
79  s. 721.03, s. 721.55, or this section. Until the division 
80  approves such filing, any contract regarding the sale of that 
81  timeshare plan is subject to cancellation by the purchaser 
82  pursuant to s. 721.10. 
83         (5) Every filed public offering statement for a timeshare 
84  plan which is not a multisite timeshare plan shall contain the 
85  information required by this subsection. The division is 
86  authorized to provide by rule the method by which a developer 
87  must provide such information to the division. 
88         (jj) The following statement in conspicuous type: 
89 
90         The managing entity has a lien against each timeshare 
91         interest to secure the payment of assessments, ad 
92         valorem assessments, tax assessments, and special 
93         assessments. Your failure to make required payments 
94         may result in the judicial or trustee foreclosure of 
95         an assessment lien and the loss of your timeshare 
96         interest. If the managing entity initiates a trustee 
97         foreclosure procedure, you have the option of 
98         objecting to the use of the trustee foreclosure 
99         procedure and the managing entity may proceed only by 
100         filing a judicial foreclosure action. 
101 
102         Section 2. Subsection (13) is added to section 721.13, 
103  Florida Statutes, to read: 
104         721.13 Management.— 
105         (13) Notwithstanding any provision of chapter 607, chapter 
106  617, or chapter 718, an officer, director, or agent of an 
107  owners’ association shall discharge his or her duties in good 
108  faith, with the care an ordinarily prudent person in a like 
109  position would exercise under similar circumstances, and in a 
110  manner he or she reasonably believes to be in the interests of 
111  the owners’ association. An officer, director, or agent of an 
112  owners’ association is exempt from liability for monetary 
113  damages in the same manner as provided in s. 617.0834 unless 
114  such officer, director, or agent breached or failed to perform 
115  his or her duties and such breach or failure constitutes a 
116  violation of criminal law as provided in s. 617.0834; 
117  constitutes a transaction from which the officer or director 
118  derived an improper personal benefit, directly or indirectly; or 
119  constitutes recklessness or an act or omission that was in bad 
120  faith, with malicious purpose, or in a manner exhibiting wanton 
121  and willful disregard of human rights, safety, or property. 
122         Section 3. Subsections (2) and (3) of section 721.16, 
123  Florida Statutes, are amended to read: 
124         721.16 Liens for overdue assessments; liens for labor 
125  performed on, or materials furnished to, a timeshare unit.— 
126         (2) The managing entity may bring a judicial an action in 
127  its name to foreclose a lien under subsection (1) in the manner 
128  a mortgage of real property is foreclosed and may also bring an 
129  action to recover a money judgment for the unpaid assessments 
130  without waiving any claim of lien. As an alternative to the 
131  judicial action, the managing entity may initiate a trustee 
132  procedure to foreclose an assessment lien pursuant to s. 
133  721.855. 
134         (3) The lien is effective from the date of recording a 
135  claim of lien in the official public records of the county or 
136  counties in which the timeshare interest is accommodations and 
137  facilities constituting the timeshare plan are located. The 
138  claim of lien must shall state the name of the timeshare plan 
139  and identify the timeshare interest for which the lien is 
140  effective, state the name of the purchaser, state the assessment 
141  amount due, and state the due dates. Notwithstanding any 
142  provision of s. 718.116(5)(a) or s. 719.108(4) to the contrary, 
143  the lien is effective until satisfied or until 5 years have 
144  expired after the date the claim of lien is recorded unless, 
145  within that time, an action to enforce the lien is commenced 
146  pursuant to subsection (2). A claim of lien for assessments may 
147  include only assessments that which are due when the claim is 
148  recorded. A claim of lien must shall be signed and acknowledged 
149  by an officer or agent of the managing entity. Upon full 
150  payment, the person making the payment is entitled to receive a 
151  satisfaction of the lien. 
152         Section 4. The Division of Statutory Revision is requested 
153  to rename part III of chapter 721, Florida Statutes, as 
154  “Foreclosure of Liens on Timeshare Interests.” 
155         Section 5. Section 721.81, Florida Statutes, is amended to 
156  read: 
157         721.81 Legislative purpose.—The purposes of this part are 
158  to: 
159         (1) Recognize that timeshare interests estates are parcels 
160  of real property used for vacation experience rather than for 
161  homestead or investment purposes and that there are numerous 
162  timeshare interests estates in this the state. 
163         (2) Recognize that the economic health and efficient 
164  operation of the vacation ownership industry are in part 
165  dependent upon the availability of an efficient and economical 
166  process for all timeshare interest foreclosures foreclosure. 
167         (3) Recognize the need to assist both owners’ associations 
168  and mortgagees by simplifying and expediting the process for the 
169  judicial and trustee of foreclosure of assessment liens and 
170  mortgage liens against timeshare interests estates. 
171         (4) Improve judicial economy and reduce court congestion 
172  and the cost to taxpayers by establishing streamlined procedures 
173  for the judicial and trustee foreclosure of assessment liens and 
174  mortgage liens against timeshare interests estates. 
175         (5) Recognize that nearly all timeshare interest 
176  foreclosures are uncontested. 
177         (6) Protect the ability of consumers who own timeshare 
178  interests located in this state to choose a judicial proceeding 
179  for the foreclosure of an assessment lien or a mortgage lien 
180  against their timeshare interest. 
181         (7) Recognize that the use of the trustee foreclosure 
182  procedure established under ss. 721.855 and 721.856 has the same 
183  force and effect as the use of the judicial foreclosure 
184  procedure against a timeshare interest with respect to the 
185  provisions of this chapter or any other applicable law. However, 
186  obligors are not subject to a deficiency judgment even if the 
187  proceeds from the sale of the timeshare interest are 
188  insufficient to offset the amounts secured by the lien. 
189         Section 6. Section 721.82, Florida Statutes, is amended to 
190  read: 
191         721.82 Definitions.—As used in this part, the term: 
192         (1) “Amounts secured by the lien” means all amounts secured 
193  by an assessment lien or mortgage lien, including, but not 
194  limited to, all past due amounts, accrued interest, late fees, 
195  taxes, advances for the payment of taxes, insurance and 
196  maintenance of the timeshare interest, and any fees or costs 
197  incurred by the lienholder or trustee, including any reasonable 
198  attorney’s fees, trustee’s fees, and costs incurred in 
199  connection with the default. 
200         (2)(1) “Assessment lien” means: 
201         (a) A lien for delinquent assessments as provided in ss. 
202  721.16, 718.116, and 719.108, and 721.16 as to timeshare 
203  condominiums; or 
204         (b) A lien for unpaid ad valorem assessments, tax 
205  assessments, taxes and special assessments as provided in s. 
206  192.037(8). 
207         (3)(2) “Junior interestholder” means any person who has a 
208  lien or interest of record against a timeshare interest estate 
209  in the county or counties in which the timeshare interest estate 
210  is located, which is inferior to the mortgage lien or assessment 
211  lien being foreclosed under this part. 
212         (4)(3) “Lienholder” means a holder of an assessment lien or 
213  a holder of a mortgage lien, as applicable. A receiver appointed 
214  under s. 721.26 is a lienholder for purposes of foreclosure of 
215  assessment liens under this part. 
216         (5)(4) “Mortgage” has the same meaning as set forth in s. 
217  697.01. 
218         (6)(5) “Mortgage lien” means a security interest in a 
219  timeshare interest estate created by a mortgage encumbering the 
220  timeshare interest estate. 
221         (7)(6) “Mortgagee” means a person holding a mortgage lien. 
222         (8)(7) “Mortgagor” means a person granting a mortgage lien 
223  or a person who has assumed the obligation secured by a mortgage 
224  lien. 
225         (9)(8) “Notice address” means: 
226         (a) As to an assessment lien, the address of the current 
227  owner of a timeshare interest estate as reflected by the books 
228  and records of the timeshare plan under ss. 721.13(4) and 
229  721.15(7). 
230         (b) As to a mortgage lien: 
231         1. The address of the mortgagor as set forth in the 
232  mortgage, the promissory note, or a separate document executed 
233  by the mortgagor at the time the mortgage lien was created, or 
234  the most current address of the mortgagor according to the 
235  records of the mortgagee; and 
236         2. If the current owner of the timeshare interest estate is 
237  different from the mortgagor, the address of the current owner 
238  of the timeshare interest estate as reflected by the books and 
239  records of the mortgagee. 
240         (c) As to a junior interestholder, the address as set forth 
241  in the recorded instrument creating the junior lien interest or 
242  interest lien, or in any recorded amendment supplement thereto 
243  changing the address, or in any written notification by the 
244  junior interestholder to the foreclosing lienholder changing the 
245  of such change in address. 
246         (10)(9) “Obligor” means the mortgagor, the person subject 
247  to an assessment lien, or the record owner of the timeshare 
248  interest estate. 
249         (11) “Permitted delivery service” means any nationally 
250  recognized common carrier delivery service or international 
251  airmail service that allows for return receipt service. 
252         (12)(10) “Registered agent” means an agent duly appointed 
253  by the obligor under s. 721.84 for the purpose of accepting all 
254  notices and service of process under this part. A registered 
255  agent may be an individual resident in this state whose business 
256  office qualifies as a registered office, or a domestic or 
257  foreign corporation or a not-for-profit corporation as defined 
258  in chapter 617 authorized to transact business or to conduct its 
259  affairs in this state, whose business office qualifies as a 
260  registered office. A registered agent for any obligor may not be 
261  the lienholder or the attorney for the lienholder. 
262         (13)(11) “Registered office” means the street address of 
263  the business office of the registered agent appointed under s. 
264  721.84, located in this state. 
265         (14) “Trustee” means an attorney who is a member in good 
266  standing of The Florida Bar and who has been practicing law for 
267  at least 5 years or that attorney’s law firm, or a title insurer 
268  authorized to transact business in this state under s. 624.401 
269  for at least 5 years, and who is appointed as trustee or as 
270  substitute trustee in accordance with s. 721.855 or s. 721.856. 
271  A receiver appointed under s. 721.26 may act as a trustee under 
272  s. 721.855. A trustee must be independent as defined in s. 
273  721.05. 
274         Section 7. Section 721.83, Florida Statutes, is amended to 
275  read: 
276         721.83 Consolidation of judicial foreclosure actions.— 
277         (1) A complaint in a foreclosure proceeding involving 
278  timeshare interests estates may join in the same action multiple 
279  defendant obligors and junior interestholders of separate 
280  timeshare interests if estates, provided: 
281         (a) The foreclosure proceeding involves a single timeshare 
282  property. 
283         (b) The foreclosure proceeding is filed by a single 
284  plaintiff. 
285         (c) The default and remedy provisions in the written 
286  instruments on which the foreclosure proceeding is based are 
287  substantially the same for each defendant. 
288         (d) The nature of the defaults alleged is the same for each 
289  defendant. 
290         (e) No more than 15 timeshare interests estates, without 
291  regard to the number of defendants, are joined within the same 
292  consolidated foreclosure action. 
293         (2) In any foreclosure proceeding involving multiple 
294  defendants filed under subsection (1), the court shall sever for 
295  separate trial any count of the complaint in which a defense or 
296  counterclaim is timely raised by a defendant. 
297         (3) A consolidated timeshare foreclosure action is shall be 
298  considered a single action, suit, or proceeding for the payment 
299  of filing fees and service charges pursuant to general law. In 
300  addition to the payment of such filing fees and service charges, 
301  An additional filing fee of up to $10 for each timeshare 
302  interest estate joined in that action shall be paid to the clerk 
303  of court. 
304         Section 8. Section 721.85, Florida Statutes, is amended to 
305  read: 
306         721.85 Service to notice address or on registered agent.— 
307         (1) Service of process for a foreclosure proceeding 
308  involving a timeshare interest estate may be made by any means 
309  recognized by law. In addition, substituted service on an 
310  obligor a party who has appointed a registered agent under s. 
311  721.84 may be made on such registered agent at the registered 
312  office. If Also, when using s. 48.194 where in rem or quasi in 
313  rem relief only is sought, such service of process provisions 
314  are modified in connection with a foreclosure proceeding against 
315  a timeshare interest estate to provide that: 
316         (a) Such service of process may be made on any person 
317  whether the person is located inside or outside this state, by 
318  certified mail, or registered mail, or permitted delivery 
319  service, return receipt requested, addressed to the person to be 
320  served at the notice address, or on the person’s party’s 
321  registered agent duly appointed under s. 721.84, at the 
322  registered office; and 
323         (b) Service is shall be considered obtained upon the 
324  signing of the return receipt by any person at the notice 
325  address, or by the registered agent. 
326         (2) The current owner and the mortgagor of a timeshare 
327  interest estate must promptly notify the owners’ association and 
328  the mortgagee of any change of address. 
329         (3) Substituted notice under s. 721.855 or s. 721.856 for 
330  any party who has appointed a registered agent under s. 721.84 
331  may be made on the registered agent at the registered office. 
332         Section 9. Section 721.855, Florida Statutes, is created to 
333  read: 
334         721.855 Procedure for the trustee foreclosure of assessment 
335  liens.—This section establishes a trustee foreclosure procedure 
336  for assessment liens. 
337         (1) APPOINTMENT OF TRUSTEE.— 
338         (a) A trustee or a substitute trustee may be appointed by a 
339  lienholder at any time by recording a notice of appointment of 
340  trustee or notice of substitution of trustee in the official 
341  records of the county or counties in which the timeshare 
342  interest is located. A lienholder may appoint multiple trustees 
343  in a single appointment, and an appointed trustee may be used by 
344  the lienholder regarding the trustee foreclosure of an 
345  assessment lien under the timeshare plan for which the trustee 
346  is appointed. 
347         (b) A trustee shall use good faith, skill, care, and 
348  diligence in discharging all of the trustee duties under this 
349  section and shall deal honestly and fairly with all parties. 
350         (c) The recorded notice of appointment of trustee or notice 
351  of substitution of trustee must contain the name and address of 
352  the trustee or substitute trustee, the name and address of the 
353  lienholder, and the name and address of the timeshare plan. 
354         (2) INITIATING A TRUSTEE FORECLOSURE PROCEDURE.— 
355         (a) Before initiating a trustee foreclosure procedure 
356  against a timeshare interest in a given timeshare plan: 
357         1. If a timeshare instrument contains any provision that 
358  specifically prevents the use of the trustee foreclosure 
359  procedure, or if the managing entity otherwise determines that 
360  the timeshare instrument should be amended to specifically 
361  provide for the use of the trustee foreclosure procedure, an 
362  amendment to the timeshare instrument permitting the use of the 
363  trustee foreclosure procedure set forth in this section must be 
364  adopted and recorded before the use of the trustee foreclosure 
365  procedure. Such amendment to the timeshare instrument, 
366  containing a statement in substantially the following form, may 
367  be adopted by a majority of those present and voting at a duly 
368  called meeting of the owners’ association at which at least 15 
369  percent of the voting interest are present in person or by 
370  proxy: 
371 
372         If a timeshare owner fails to make timely payments of 
373         timeshare plan common expenses, ad valorem taxes, or 
374         special assessments, an assessment lien against the 
375         timeshare owner’s timeshare interest may be foreclosed 
376         in accordance with a judicial foreclosure procedure or 
377         a trustee foreclosure procedure, either of which may 
378         result in the loss of the timeshare owner’s timeshare 
379         interest. If the managing entity initiates a trustee 
380         foreclosure procedure, the timeshare owner may object 
381         pursuant to state law, and, in such event, the 
382         managing entity may proceed only by filing a judicial 
383         foreclosure action. 
384 
385         2. The managing entity shall inform owners of timeshare 
386  interests in the timeshare plan in writing that the managing 
387  entity has the right to elect to use the trustee foreclosure 
388  procedure with respect to foreclosure of assessment liens as 
389  established in this section. The managing entity is deemed to 
390  have complied with this subparagraph if the owners of timeshare 
391  interests in the given timeshare plan are informed by mail sent 
392  to each owner’s notice address, in the notice of an annual or 
393  special meeting of the owners, by posting on the website of the 
394  applicable timeshare plan, or by any owner communication used by 
395  the managing entity. 
396         (b) Before initiating the trustee foreclosure procedure 
397  against a timeshare interest, a claim of lien against the 
398  timeshare interest must be recorded under s. 721.16 or, if 
399  applicable, s. 718.116 or s. 719.108, and the notice of the 
400  intent to file a lien must be given under s. 718.121 for 
401  timeshare condominiums and s. 719.108 for timeshare 
402  cooperatives. 
403         (c) In order to initiate a trustee foreclosure procedure 
404  against a timeshare interest, the lienholder shall deliver an 
405  affidavit to the trustee that identifies the obligor; the notice 
406  address of the obligor; the timeshare interest; the date that 
407  the notice of the intent to file a lien was given, if 
408  applicable; the official records book and page number where the 
409  claim of lien is recorded; and the name and notice address of 
410  any junior interestholder. The affidavit must be accompanied by 
411  a title search of the timeshare interest identifying any junior 
412  interestholders of record, and the effective date of the title 
413  search must be a date that is within 60 calendar days before the 
414  date of the affidavit. The affidavit must also: 
415         1. State the facts that establish that the obligor has 
416  defaulted in the obligation to make a payment under a specified 
417  provision of the timeshare instrument or applicable law. 
418         2. Specify the amounts secured by the lien as of the date 
419  of the affidavit and a per diem amount to account for further 
420  accrual of the amounts secured by the lien. 
421         3. State that the assessment lien was properly created and 
422  authorized pursuant to the timeshare instrument and applicable 
423  law. 
424         (3) OBLIGOR’S RIGHTS.— 
425         (a) The obligor may object to the lienholder’s use of the 
426  trustee foreclosure procedure for a specific default any time 
427  before the sale of the timeshare interest under subsection (7) 
428  by delivering a written objection to the trustee using the 
429  objection form provided in subsection (5). If the trustee 
430  receives the written objection from the obligor, the trustee may 
431  not proceed with the trustee foreclosure procedure as to the 
432  default specified in the notice of default and intent to 
433  foreclose under subsection (5), and the lienholder may proceed 
434  only with a judicial foreclosure action as to that specified 
435  default. 
436         (b) At any time before the trustee issues the certificate 
437  of sale under paragraph (7)(f), the obligor may cure the default 
438  and redeem the timeshare interest by paying the amounts secured 
439  by the lien in cash or certified funds to the trustee. There is 
440  no right of redemption after the trustee issues the certificate 
441  of sale. 
442         (4) CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A 
443  trustee may sell an encumbered timeshare interest foreclosed 
444  under this section if: 
445         (a) The trustee has received the affidavit from the 
446  lienholder under paragraph (2)(c); 
447         (b) The trustee has not received a written objection to the 
448  use of the trustee foreclosure procedure under paragraph (3)(a) 
449  and the timeshare interest was not redeemed under paragraph 
450  (3)(b); 
451         (c) There is no lis pendens recorded and pending against 
452  the same timeshare interest and the trustee has not been served 
453  notice of the filing of any action to enjoin the trustee 
454  foreclosure sale; 
455         (d) The trustee has provided written notice of default and 
456  intent to foreclose as required under subsection (5) and at 
457  least 30 calendar days has elapsed after such notice is deemed 
458  perfected under subsection (5); and 
459         (e) The notice of sale required under subsection (6) has 
460  been recorded in the official records of the county or counties 
461  in which the timeshare interest is located. 
462         (5) NOTICE OF DEFAULT AND INTENT TO FORECLOSE.— 
463         (a) In any foreclosure proceeding under this section, the 
464  trustee must notify the obligor of the proceeding by sending the 
465  obligor a written notice of default and intent to foreclose to 
466  the notice address of the obligor by certified mail, registered 
467  mail, or permitted delivery service, return receipt requested, 
468  and by first-class mail or permitted delivery service, postage 
469  prepaid, as follows: 
470         1. The notice of default and intent to foreclose must 
471  identify the obligor, the notice address of the obligor, the 
472  legal description of the timeshare interest, the nature of the 
473  default, the amounts secured by the lien, and a per diem amount 
474  to account for further accrual of the amounts secured by the 
475  lien and state the method by which the obligor may cure the 
476  default, including the period of time after the date of the 
477  notice of default and intent to foreclose within which the 
478  obligor may cure the default. 
479         2. The notice of default and intent to foreclose must 
480  include an objection form with which the obligor can object to 
481  the use of the trustee foreclosure procedure by signing and 
482  returning the objection form to the trustee. The objection form 
483  must identify the obligor, the notice address of the obligor, 
484  the timeshare interest, and the return address of the trustee 
485  and state: “The undersigned obligor exercises the obligor’s 
486  right to object to the use of the trustee foreclosure procedure 
487  contained in s. 721.855, Florida Statutes.” 
488         3. The notice of default and intent to foreclose shall also 
489  contain a statement in substantially the following form: 
490 
491         If you fail to cure the default as set forth in this 
492         notice or take other appropriate action with regard to 
493         this foreclosure matter, you risk losing ownership of 
494         your timeshare interest through the trustee 
495         foreclosure procedure established in section 721.855, 
496         Florida Statutes. You may choose to sign and send to 
497         the trustee the enclosed objection form, exercising 
498         your right to object to the use of the trustee 
499         foreclosure procedure. Upon the trustee’s receipt of 
500         your signed objection form, the foreclosure of the 
501         lien with respect to the default specified in this 
502         notice shall be subject to the judicial foreclosure 
503         procedure only. You have the right to cure your 
504         default in the manner set forth in this notice at any 
505         time before the trustee’s sale of your timeshare 
506         interest. If you do not object to the use of the 
507         trustee foreclosure procedure, you will not be subject 
508         to a deficiency judgment even if the proceeds from the 
509         sale of your timeshare interest are insufficient to 
510         offset the amounts secured by the lien. 
511 
512         4. The trustee shall also mail a copy of the notice of 
513  default and intent to foreclose, without the objection form, to 
514  the notice address of any junior interestholder by certified 
515  mail, registered mail, or permitted delivery service, return 
516  receipt requested, and by first-class mail or permitted delivery 
517  service, postage prepaid. 
518         5. Notice under this paragraph is considered perfected upon 
519  the trustee receiving the return receipt bearing the signature 
520  of the obligor or junior interestholder, as applicable, within 
521  30 calendar days after the trustee sent the notice. Notice is 
522  not perfected if the notice is returned as undeliverable within 
523  30 calendar days after the trustee sent the notice, if the 
524  trustee cannot ascertain from the receipt that the obligor or 
525  junior interestholder is the person who signed the receipt, or 
526  if the receipt from the obligor or junior interestholder is 
527  returned or refused within 30 calendar days after the trustee 
528  sent the notice. 
529         (b) If the notice required by paragraph (a) is returned as 
530  undeliverable within 30 calendar days after the trustee sent the 
531  notice, the trustee shall perform a diligent search and inquiry 
532  to obtain a different address for the obligor or junior 
533  interestholder. For purposes of this paragraph, any address 
534  known and used by the lienholder for sending regular mailings or 
535  other communications from the lienholder to the obligor or 
536  junior interestholder, as applicable, shall be included with 
537  other addresses produced from the diligent search and inquiry, 
538  if any. 
539         1. If the trustee’s diligent search and inquiry produces an 
540  address different from the notice address, the trustee shall 
541  mail a copy of the notice by certified mail, registered mail, or 
542  permitted delivery service, return receipt requested, and by 
543  first-class mail or permitted delivery service, postage prepaid, 
544  to the new address. Notice is considered perfected upon the 
545  trustee receiving the return receipt bearing the signature of 
546  the obligor or junior interestholder, as applicable, within 30 
547  calendar days after the trustee sent the notice under this 
548  subparagraph. Notice is not perfected if the trustee cannot 
549  ascertain from the receipt that the obligor or junior 
550  interestholder is the person who signed the receipt or the 
551  receipt from the obligor or junior interestholder is returned 
552  refused. If the trustee does not perfect notice under this 
553  subparagraph, the trustee shall perfect service under paragraph 
554  (c). 
555         2. If the trustee’s diligent search and inquiry does not 
556  locate a different address for the obligor or junior 
557  interestholder, as applicable, the trustee may perfect notice 
558  against that person under paragraph (c). 
559         (c) If the notice is not perfected under subparagraph (a)5. 
560  and was not returned as undeliverable, or if the notice was not 
561  perfected under subparagraph (b)1., the trustee may perfect 
562  notice by publication in a newspaper of general circulation in 
563  the county or counties in which the timeshare interest is 
564  located. The notice must appear at least once a week for 2 
565  consecutive weeks. The trustee may group an unlimited number of 
566  notices in the same publication, if all of the notices pertain 
567  to the same timeshare plan. Notice is considered perfected upon 
568  publication as required in this paragraph. 
569         (d) If notice is perfected under subparagraph (a)5., the 
570  trustee shall execute an affidavit in recordable form setting 
571  forth the manner in which notice was perfected and attach the 
572  affidavit to the certificate of compliance set forth in 
573  subsection (9). The affidavit must state the nature of the 
574  notice, the date on which the notice was mailed, the name and 
575  address on the envelope containing the notice, the manner in 
576  which the notice was mailed, and the basis for that knowledge. 
577         (e) If notice is perfected under subparagraph (b)1., the 
578  trustee shall execute an affidavit in recordable form setting 
579  forth the manner in which notice was perfected and attach the 
580  affidavit to the certificate of compliance set forth in 
581  subsection (9). The affidavit must state the nature of the 
582  notice, the dates on which the notice was mailed, the name and 
583  addresses on the envelopes containing the notice, the manner in 
584  which the notices were mailed, the fact that a signed receipt 
585  from the certified mail, registered mail, or permitted delivery 
586  service was timely received, and the name and address on the 
587  envelopes containing the notice. 
588         (f) If notice is perfected by publication under paragraph 
589  (c), the trustee shall execute an affidavit in recordable form 
590  setting forth the manner in which notice was perfected and 
591  attach the affidavit to the certificate of compliance set forth 
592  in subsection (9). The affidavit must include all the 
593  information contained in paragraph (d) or paragraph (e), as 
594  applicable, state that the notice was perfected by publication 
595  after diligent search and inquiry was made for the current 
596  address for the person, include a statement that notice was 
597  perfected by publication, and shall set forth the information 
598  required by s. 49.041 in the case of a natural person or s. 
599  49.051 in the case of a corporation, as applicable. No other 
600  action of the trustee is necessary to perfect notice. 
601         (6) NOTICE OF SALE.— 
602         (a) The notice of sale must include: 
603         1. The name and notice addresses of the obligor and any 
604  junior interestholder. 
605         2. The legal description of the timeshare interest. 
606         3. The name and address of the trustee. 
607         4. A description of the default that is the basis for the 
608  foreclosure. 
609         5. The official records book and page numbers where the 
610  claim of lien is recorded. 
611         6. The amounts secured by the lien and a per diem amount to 
612  account for further accrual of the amounts secured by the lien. 
613         7. The date, location, and starting time of the trustee’s 
614  sale. 
615         8. The right of and the method by which the obligor may 
616  cure the default or the right of any junior interestholder to 
617  redeem its interest up to the date the trustee issues the 
618  certificate of sale in accordance with paragraph (7)(f). 
619         (b) The trustee shall send a copy of the notice of sale 
620  within 3 business days after the date it is submitted for 
621  recording, by first-class mail or permitted delivery service, 
622  postage prepaid, to the notice addresses of the obligor and any 
623  junior interestholder. 
624         (c) After the date of recording the notice of sale, notice 
625  does not have to be given to any person claiming an interest in 
626  the timeshare interest except as provided in this section. The 
627  recording of the notice of sale has the same force and effect as 
628  the filing of a lis pendens in a judicial proceeding under s. 
629  48.23. 
630         (d) The trustee shall publish the notice of sale in a 
631  newspaper of general circulation in the county or counties in 
632  which the timeshare interest is located at least once a week for 
633  2 consecutive weeks before the date of the sale. The last 
634  publication must occur at least 5 calendar days before the sale. 
635  The trustee may group an unlimited number of notices of sale in 
636  the same publication, if all of the notices of sale pertain to 
637  the same timeshare plan. 
638         (7) MANNER OF SALE.— 
639         (a) The sale of a timeshare interest by the trustee in a 
640  public auction shall be held in the county in which the 
641  timeshare interest is located, on the date, location, and 
642  starting time designated in the notice of sale, which must be 
643  after 9 a.m. but before 4 p.m. on a business day at least 30 
644  calendar days after the recording of the notice of sale. The 
645  trustee’s sale may occur online at a specific website on the 
646  Internet or in any other manner used by the clerk of the court 
647  for a judicial foreclosure sales procedure in the county or 
648  counties in which the timeshare interest is located. 
649         (b) The trustee shall conduct the sale and act as the 
650  auctioneer. 
651         (c) The lienholder and any person other than the trustee 
652  may bid at the sale. In lieu of participating in the sale, the 
653  lienholder may send the trustee written bidding instructions 
654  that the trustee shall announce as appropriate during the sale. 
655         (d) The trustee may postpone the sale, in which case, 
656  notice of postponement must be given by the trustee at the date, 
657  time, and location contained in the notice of sale. The notice 
658  of sale for the postponed sale must be mailed under paragraph 
659  (6)(b), recorded under paragraph (4)(e), and published under 
660  paragraph (6)(d). The effective date of the initial notice of 
661  sale is not affected by a postponed sale. 
662         (e) The highest bidder of the timeshare interest shall pay 
663  the price bid to the trustee in cash or certified funds on the 
664  day of the sale. If the lienholder is the highest bidder, the 
665  lienholder shall receive a credit up to the amount set forth in 
666  the notice of sale as required under subparagraph (6)(a)6. 
667         (f) On the date of the sale and upon receipt of the cash or 
668  certified funds due from the highest bidder, the trustee shall 
669  issue to the highest bidder a certificate of sale stating that a 
670  foreclosure conforming to the requirements of this section has 
671  occurred, including the time, location, and date of the sale, 
672  that the timeshare interest was sold, the amounts secured by the 
673  lien, and the amount of the highest bid. A copy of the 
674  certificate of sale shall be mailed by certified mail, 
675  registered mail, or permitted delivery service, return receipt 
676  requested, to all persons entitled to receive a notice of sale 
677  under subsection (6). 
678         (g) Before a sale conducted under this subsection, a junior 
679  interestholder may pursue adjudication by court, by 
680  interpleader, or in any other authorized manner respecting any 
681  matter that is disputed by the junior interestholder. 
682         (8) EFFECT OF TRUSTEE’S SALE.— 
683         (a) A sale conducted under subsection (7) forecloses and 
684  terminates all interests of any person to whom notice is given 
685  under paragraphs (4)(d) and (6)(b), and any other person 
686  claiming interests by, through, or under any such person, in the 
687  affected timeshare interest. A failure to give notice to any 
688  person entitled to notice does not affect the validity of the 
689  sale as to the interests of persons properly notified. A person 
690  entitled to notice but not given notice has the rights of a 
691  person not made a defendant in a judicial foreclosure. 
692         (b) On the issuance of a certificate of sale under 
693  paragraph (7)(f), all rights of redemption that are foreclosed 
694  under this section terminate. 
695         (c) A sale conducted under subsection (7) releases the 
696  obligor’s liability for all amounts secured by the lien. The 
697  lienholder does not have a right to any deficiency judgment 
698  against the obligor after a sale of the obligor’s timeshare 
699  interest under this section. 
700         (d) The issuance and recording of the trustee’s deed is 
701  presumed valid and may be relied upon by third parties without 
702  actual knowledge of irregularities in the foreclosure 
703  proceedings. If for any reason there is an irregularity in the 
704  foreclosure proceedings, a purchaser becomes subrogated to all 
705  the rights of the lienholder to the indebtedness that it secured 
706  to the extent necessary to reforeclose the assessment lien in 
707  order to correct the irregularity and becomes entitled to an 
708  action de novo for the foreclosure of the assessment lien. Any 
709  subsequent reforeclosure required to correct an irregularity may 
710  be conducted under this section. 
711         (9) TRUSTEE’S CERTIFICATE OF COMPLIANCE.— 
712         (a) Within 10 calendar days after the trustee conducts a 
713  sale, the trustee shall execute and acknowledge a certificate of 
714  compliance that: 
715         1. Confirms delivery of the notice of default and intent to 
716  foreclose and attaches the affidavit required under subsection 
717  (5). 
718         2. States that the default was not cured, that the trustee 
719  did not receive any written objection under paragraph (3)(a), 
720  and that the timeshare interest was not redeemed under paragraph 
721  (3)(b). 
722         3. Confirms that the notice of sale was published as 
723  required under paragraph (6)(d) and attaches an affidavit of 
724  publication for the notice of sale. 
725         4. Confirms that the notice of sale was mailed under 
726  paragraph (6)(b) together with a list of the parties to whom the 
727  notice of sale was mailed. 
728         (b) In furtherance of the execution of the certificate of 
729  compliance required under this subsection, the trustee is 
730  entitled to rely upon an affidavit or certification from the 
731  lienholder as to the facts and circumstances of default and 
732  failure to cure the default. 
733         (10) TRUSTEE’S DEED.— 
734         (a) The trustee’s deed must include the name and address of 
735  the trustee, the name and address of the highest bidder, the 
736  name of the former owner, a legal description of the timeshare 
737  interest, and the name and address of the preparer of the 
738  trustee’s deed. The trustee’s deed must recite that the 
739  certificate of compliance was recorded and may not contain 
740  warranties of title from the trustee. The certificate of 
741  compliance shall be attached as an exhibit to the trustee’s 
742  deed. 
743         (b) Ten calendar days after a sale, absent the prior filing 
744  and service on the trustee of a judicial action to enjoin 
745  issuance of the trustee’s deed to the timeshare interest, the 
746  trustee shall: 
747         1. Issue a trustee’s deed to the highest bidder. 
748         2. Record the trustee’s deed in the official records of the 
749  county or counties in which the timeshare interest is located. 
750         (c) The certificate of compliance and trustee’s deed 
751  together are presumptive evidence of the truth of the matters 
752  set forth in them, and an action to set aside the sale and void 
753  the trustee’s deed may not be filed or otherwise pursued against 
754  any person acquiring the timeshare interest for value. 
755         1. The trustee’s deed conveys to the highest bidder all 
756  rights, title, and interest in the timeshare interest that the 
757  former owner had, or had the power to convey, at the time of the 
758  recording of the claim of lien, together with all rights, title, 
759  and interest that the former owner or his or her successors in 
760  interest acquired after the recording of the claim of lien. 
761         2. The issuance and recording of a trustee’s deed has the 
762  same force and effect as the issuance and recording of a 
763  certificate of title by the clerk of the court in a judicial 
764  foreclosure action. 
765         (11) DISPOSITION OF PROCEEDS OF SALE.— 
766         (a) The trustee shall apply the proceeds of the sale as 
767  follows: 
768         1. To the expenses of the sale, including compensation of 
769  the trustee. 
770         2. To the amount owed and set forth in the notice as 
771  required in subparagraph (6)(a)6. 
772         3. If there are junior interestholders, the trustee may 
773  file an action in interpleader, pay the surplus to a court, name 
774  the competing junior interestholders, and ask the court to 
775  determine the proper distribution of the surplus. In an 
776  interpleader action, the trustee shall recover reasonable 
777  attorney’s fees and costs. 
778         4. If there are no junior interestholders, or if all junior 
779  interestholders have been paid, any surplus shall be paid to the 
780  former owner. If the trustee is unable to locate the former 
781  owner within 1 year after the sale, the surplus, if any, shall 
782  be deposited with the Chief Financial Officer under chapter 717. 
783         (b) In disposing of the proceeds of the sale, the trustee 
784  may rely on the information provided in the affidavit of the 
785  lienholder under paragraph (2)(c) and, if there is a dispute or 
786  uncertainty over such claims, the trustee may submit the matter 
787  to adjudication by court, by interpleader, or in any other 
788  authorized manner and shall recover reasonable attorney’s fees 
789  and costs. 
790         (12) TRUSTEE FORECLOSURE ACTIONS.—The trustee foreclosure 
791  procedure established in this section does not impair or 
792  otherwise affect the lienholder’s continuing right to bring a 
793  judicial foreclosure action, in lieu of using the trustee 
794  foreclosure procedure, with respect to any assessment lien. 
795         (13) APPLICATION.—This section applies to any default 
796  giving rise to the imposition of an assessment lien which occurs 
797  after the effective date of this section. 
798         (14) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE 
799  PROCEDURE.—An action for actual damages for a material violation 
800  of this section may be brought by an obligor against the 
801  lienholder for the failure to follow the trustee foreclosure 
802  procedure contained in this section. 
803         Section 10. Section 721.856, Florida Statutes, is created 
804  to read: 
805         721.856 Procedure for the trustee foreclosure of mortgage 
806  liens.—This section establishes a trustee foreclosure procedure 
807  for mortgage liens. 
808         (1) APPOINTMENT OF TRUSTEE.— 
809         (a) A trustee or a substitute trustee may be appointed by a 
810  lienholder by recording a notice of appointment of trustee or 
811  notice of substitution of trustee in the official records of the 
812  county or counties in which the timeshare interest is located. A 
813  lienholder may appoint multiple trustees in a single 
814  appointment, and an appointed trustee may be used by the 
815  lienholder regarding the trustee foreclosure of any mortgage 
816  lien. 
817         (b) A trustee shall use good faith, skill, care, and 
818  diligence in discharging all of the trustee duties under this 
819  section and deal honestly and fairly with all parties. 
820         (c) The recorded notice of appointment of trustee or notice 
821  of substitution of trustee must contain the name and address of 
822  the trustee or substitute trustee, the name and address of the 
823  lienholder, and the name and address of the timeshare plan. 
824         (2) INITIATING THE TRUSTEE FORECLOSURE OF MORTGAGE LIENS.— 
825         (a) Before initiating the trustee foreclosure against a 
826  timeshare interest, the mortgage, or an amendment to a mortgage 
827  executed by the obligor before the effective date of this 
828  section, must contain a statement in substantially the following 
829  form: 
830 
831         If the mortgagor fails to make timely payments under 
832         the obligation secured by this mortgage, or is 
833         otherwise deemed in uncured default of this mortgage, 
834         the lien against the mortgagor’s timeshare interest 
835         created by this mortgage may be foreclosed in 
836         accordance with a judicial foreclosure procedure or a 
837         trustee foreclosure procedure and may result in the 
838         loss of your timeshare interest. If the mortgagee 
839         initiates a trustee foreclosure procedure, the 
840         mortgagor may object and the mortgagee may proceed 
841         only by filing a judicial foreclosure action. 
842 
843         (b) In order to initiate a trustee foreclosure procedure 
844  against a timeshare interest, the lienholder shall deliver an 
845  affidavit to the trustee that identifies the obligor, the notice 
846  address of the obligor, the timeshare interest, the official 
847  records book and page number where the mortgage is recorded, and 
848  the name and notice address of any junior interestholder. The 
849  affidavit must be accompanied by a title search of the timeshare 
850  interest identifying any junior interestholders of record, and 
851  the effective date of the title search must be a date that is 
852  within 60 calendar days before the date of the affidavit. The 
853  affidavit must also: 
854         1. State the facts that establish that the obligor has 
855  defaulted in the obligation to make a payment under a specified 
856  provision of the mortgage or is otherwise deemed in uncured 
857  default under a specified provision of the mortgage. 
858         2. Specify the amounts secured by the lien as of the date 
859  of the affidavit and a per diem amount to account for further 
860  accrual of the amounts secured by the lien. 
861         3. State that the appropriate amount of documentary stamp 
862  tax and intangible taxes has been paid upon recording the 
863  mortgage, or otherwise paid to the state. 
864         4. State that the lienholder is the holder of the note, and 
865  has complied with all preconditions in the note and mortgage to 
866  determine the amounts secured by the lien and to initiate the 
867  use of the trustee foreclosure procedure. 
868         (3) OBLIGOR’S RIGHTS.— 
869         (a) The obligor may object to the lienholder’s use of the 
870  trustee foreclosure procedure for a specific default before the 
871  sale of the timeshare interest under subsection (7) by 
872  delivering a written objection to the trustee using the 
873  objection form provided in subsection (5). If the trustee 
874  receives the written objection from the obligor, the trustee may 
875  not proceed with the trustee foreclosure procedure as to the 
876  default specified in the notice of default and intent to 
877  foreclose under subsection (5), and the lienholder may proceed 
878  only with a judicial foreclosure action as to that specified 
879  default. 
880         (b) Before the trustee issues the certificate of sale under 
881  paragraph (7)(f), the obligor may cure the default and redeem 
882  the timeshare interest by paying the amounts secured by the lien 
883  in cash or certified funds to the trustee. There is no right of 
884  redemption after the trustee issues the certificate of sale. 
885         (4) CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A 
886  trustee may sell an encumbered timeshare interest foreclosed 
887  under this section if: 
888         (a) The trustee has received the affidavit from the 
889  lienholder under paragraph (2)(b); 
890         (b) The trustee has not received a written objection to the 
891  use of the trustee foreclosure procedure under paragraph (3)(a) 
892  and the timeshare interest was not redeemed under paragraph 
893  (3)(b); 
894         (c) There is no lis pendens recorded and pending against 
895  the same timeshare interest, and the trustee has not been served 
896  notice of the filing of any action to enjoin the trustee 
897  foreclosure sale; 
898         (d) The trustee is in possession of the original promissory 
899  note executed by the mortgagor and secured by the mortgage lien; 
900         (e) The trustee has provided written notice of default and 
901  intent to foreclose as required under subsection (5) and at 
902  least 30 calendar days have elapsed after the notice is deemed 
903  perfected under subsection (5); and 
904         (f) The notice of sale required under subsection (6) has 
905  been recorded in the official records of the county in which the 
906  mortgage was recorded. 
907         (5) NOTICE OF DEFAULT AND INTENT TO FORECLOSE.— 
908         (a) In any foreclosure proceeding under this section, the 
909  trustee must notify the obligor of the proceeding by sending the 
910  obligor a written notice of default and intent to foreclose to 
911  the notice address of the obligor by certified mail, registered 
912  mail, or permitted delivery service, return receipt requested, 
913  and by first-class mail or permitted delivery service, postage 
914  prepaid, as follows: 
915         1. The notice of default and intent to foreclose must 
916  identify the obligor, the notice address of the obligor, the 
917  legal description of the timeshare interest, the nature of the 
918  default, the amounts secured by the lien, and a per diem amount 
919  to account for further accrual of the amounts secured by the 
920  lien and state the method by which the obligor may cure the 
921  default, including the period of time after the date of the 
922  notice of default and intent to foreclose within which the 
923  obligor may cure the default. 
924         2. The notice of default and intent to foreclose must 
925  include an objection form with which the obligor can object to 
926  the use of the trustee foreclosure procedure by signing and 
927  returning the objection form to the trustee. The objection form 
928  must identify the obligor, the notice address of the obligor, 
929  the timeshare interest, and the return address of the trustee 
930  and state: “The undersigned obligor exercises the obligor’s 
931  right to object to the use of the trustee foreclosure procedure 
932  contained in s. 721.856, Florida Statutes.” 
933         3. The notice of default and intent to foreclose must also 
934  contain a statement in substantially the following form: 
935 
936         If you fail to cure the default as set forth in this 
937         notice or take other appropriate action with regard to 
938         this foreclosure matter, you risk losing ownership of 
939         your timeshare interest through the trustee 
940         foreclosure procedure established in s. 721.856, 
941         Florida Statutes. You may sign and send the enclosed 
942         objection form to the trustee, exercising your right 
943         to object to the use of the trustee foreclosure 
944         procedure. Upon the trustee’s receipt of your signed 
945         objection form, the foreclosure of the lien with 
946         respect to the default specified in this notice is 
947         subject to the judicial foreclosure procedure only. 
948         You have the right to cure your default in the manner 
949         set forth in this notice at any time before the 
950         trustee’s sale of your timeshare interest. If you do 
951         not object to the use of the trustee foreclosure 
952         procedure, you will not be subject to a deficiency 
953         judgment even if the proceeds from the sale of your 
954         timeshare interest are insufficient to offset the 
955         amounts secured by the lien. 
956 
957         4. The trustee shall also mail a copy of the notice of 
958  default and intent to foreclose, without the objection form, to 
959  the notice address of any junior interestholder by certified 
960  mail, registered mail, or permitted delivery service, return 
961  receipt requested, and by first-class mail or permitted delivery 
962  service, postage prepaid. 
963         5. Notice under this paragraph is considered perfected upon 
964  the trustee receiving the return receipt bearing the signature 
965  of the obligor or junior interestholder, as applicable, within 
966  30 calendar days after the trustee sent the notice. Notice is 
967  not perfected if the notice is returned as undeliverable within 
968  30 calendar days after the trustee sent the notice, if the 
969  trustee cannot ascertain from the receipt that the obligor or 
970  junior interestholder is the person who signed the receipt, or 
971  if the receipt from the obligor or junior interestholder is 
972  returned or refused within 30 calendar days after the trustee 
973  sent the notice. 
974         (b) If the notice required by paragraph (a) is returned as 
975  undeliverable within 30 calendar days after the trustee sent the 
976  notice, the trustee shall perform a diligent search and inquiry 
977  to obtain a different address for the obligor or junior 
978  interestholder. For purposes of this paragraph, any address 
979  known and used by the lienholder for sending regular mailings or 
980  other communications from the lienholder to the obligor or 
981  junior interestholder, as applicable, must be included with 
982  other addresses produced from the diligent search and inquiry, 
983  if any. 
984         1. If the trustee’s diligent search and inquiry produces an 
985  address different from the notice address, the trustee shall 
986  mail a copy of the notice by certified mail, registered mail, or 
987  permitted delivery service, return receipt requested, and by 
988  first-class mail or permitted delivery service, postage prepaid, 
989  to the new address. Notice under this subparagraph is considered 
990  perfected upon the trustee receiving the return receipt bearing 
991  the signature of the obligor or junior interestholder, as 
992  applicable, within 30 calendar days after the trustee sent the 
993  notice under this subparagraph. Notice is not perfected if the 
994  trustee cannot ascertain from the receipt that the obligor or 
995  junior interestholder is the person who signed the receipt or 
996  the receipt from the obligor or junior interestholder is 
997  returned refused. If the trustee does not perfect notice, the 
998  trustee shall perfect service under paragraph (c). 
999         2. If the trustee’s diligent search and inquiry does not 
1000  locate a different address for the obligor or junior 
1001  interestholder, as applicable, the trustee may perfect notice 
1002  against that person under paragraph (c). 
1003         (c) If the notice is not perfected under subparagraph 
1004  (a)5., and the notice was not returned as undeliverable, or if 
1005  the notice was not perfected under subparagraph (b)1., the 
1006  trustee may perfect notice by publication in a newspaper of 
1007  general circulation in the county or counties in which the 
1008  timeshare interest is located. The notice must appear at least 
1009  once a week for 2 consecutive weeks. The trustee may group an 
1010  unlimited number of notices in the same publication, if all of 
1011  the notices pertain to the same timeshare plan. Notice is 
1012  considered perfected upon publication as required in this 
1013  paragraph. 
1014         (d) If notice is perfected under subparagraph (a)5., the 
1015  trustee shall execute an affidavit in recordable form setting 
1016  forth the manner in which notice was perfected and attach the 
1017  affidavit to the certificate of compliance set forth in 
1018  subsection (9). The affidavit must state the nature of the 
1019  notice, the date on which the notice was mailed, the name and 
1020  address on the envelope containing the notice, the manner in 
1021  which the notice was mailed, and the basis for that knowledge. 
1022         (e) If notice is perfected under subparagraph (b)1., the 
1023  trustee shall execute an affidavit in recordable form setting 
1024  forth the manner in which notice was perfected and attach the 
1025  affidavit to the certificate of compliance set forth in 
1026  subsection (9). The affidavit must state the nature of the 
1027  notice, the dates on which the notice was mailed, the name and 
1028  addresses on the envelopes containing the notice, the manner in 
1029  which the notice was mailed, the fact that a signed receipt from 
1030  the certified mail, registered mail, or permitted delivery 
1031  service was timely received, and the name and address on the 
1032  envelopes containing the notice. 
1033         (f) If notice is perfected under paragraph (c), the trustee 
1034  shall execute an affidavit in recordable form setting forth the 
1035  manner in which notice was perfected and attach the affidavit to 
1036  the certificate of compliance set forth in subsection (9). The 
1037  affidavit must include all the information contained in 
1038  paragraph (d) or paragraph (e), as applicable, state that the 
1039  notice was perfected by publication after diligent search and 
1040  inquiry was made for the current address for the person, include 
1041  a statement that notice was perfected by publication, and set 
1042  forth the information required by s. 49.041 in the case of a 
1043  natural person or s. 49.051 in the case of a corporation, 
1044  whichever is applicable. No other action of the trustee is 
1045  necessary to perfect notice. 
1046         (6) NOTICE OF SALE.— 
1047         (a) The notice of sale must contain: 
1048         1. The name and notice addresses of the obligor and any 
1049  junior interestholder. 
1050         2. The legal description of the timeshare interest. 
1051         3. The name and address of the trustee. 
1052         4. A description of the default that is the basis for the 
1053  foreclosure. 
1054         5. The official records book and page numbers where the 
1055  mortgage is recorded. 
1056         6. The amounts secured by the lien and a per diem amount to 
1057  account for further accrual of the amounts secured by the lien. 
1058         7. The date, location, and starting time of the trustee’s 
1059  sale. 
1060         8. The right of and the method by which the obligor may 
1061  cure the default or the right of any junior interestholder to 
1062  redeem its interest up to the date the trustee issues the 
1063  certificate of sale in accordance with paragraph (7)(f). 
1064         (b) The trustee shall send a copy of the notice of sale 
1065  within 3 business days after the date it is submitted for 
1066  recording, by first-class mail or permitted delivery service, 
1067  postage prepaid, to the notice addresses of the obligor and any 
1068  junior interestholder. 
1069         (c) After the date of recording of the notice of sale, 
1070  notice is not required to be given to any person claiming an 
1071  interest in the timeshare interest except as provided in this 
1072  section. The recording of the notice of sale has the same force 
1073  and effect as the filing of a lis pendens in a judicial 
1074  proceeding under s. 48.23. 
1075         (d) The trustee shall publish the notice of sale in a 
1076  newspaper of general circulation in the county or counties in 
1077  which the timeshare interest is located at least once a week for 
1078  2 consecutive weeks before the date of the sale. The last 
1079  publication must occur at least 5 calendar days before the sale. 
1080  The trustee may group an unlimited number of notices of sale in 
1081  the same publication, if all of the notices of sale pertain to 
1082  the same timeshare plan. 
1083         (7) MANNER OF SALE.— 
1084         (a) The sale of a timeshare interest by the trustee in a 
1085  public auction shall be held in the county in which the 
1086  timeshare interest is located, on the date, location, and 
1087  starting time designated in the notice of sale, which must be 
1088  after 9 a.m. but before 4 p.m. on a business day at least 30 
1089  calendar days after the recording of the notice of sale. The 
1090  trustee’s sale may occur online at a specific website on the 
1091  Internet or in any other manner used by the clerk of the court 
1092  for a judicial foreclosure sales procedure in the county or 
1093  counties in which the timeshare interest is located. 
1094         (b) The trustee shall conduct the sale and act as the 
1095  auctioneer. 
1096         (c) The lienholder and any person other than the trustee 
1097  may bid at the sale. In lieu of participating in the sale, the 
1098  lienholder may send the trustee written bidding instructions 
1099  that the trustee shall announce as appropriate during the sale. 
1100         (d) The trustee may postpone the sale. In such case, notice 
1101  of postponement must be given by the trustee at the date, time, 
1102  and location contained in the notice of sale. The notice of sale 
1103  for the postponed sale must be mailed under paragraph (6)(b), 
1104  recorded under paragraph (4)(f), and published under paragraph 
1105  (6)(d). The effective date of the initial notice of sale is not 
1106  affected by a postponed sale. 
1107         (e) The highest bidder of the timeshare interest shall pay 
1108  the price bid to the trustee in cash or certified funds on the 
1109  day of the sale. If the lienholder is the highest bidder, the 
1110  lienholder shall receive a credit up to the amount set forth in 
1111  the notice of sale as required under subparagraph (6)(a)6. 
1112         (f) On the date of the sale and upon receipt of the cash or 
1113  certified funds due from the highest bidder, the trustee shall 
1114  issue to the highest bidder a certificate of sale stating that a 
1115  foreclosure conforming to the requirements of this section has 
1116  occurred, including the time, location, and date of the sale, 
1117  that the timeshare interest was sold, the amounts secured by the 
1118  lien, and the amount of the highest bid. A copy of the 
1119  certificate of sale shall be mailed by certified mail, 
1120  registered mail, or permitted delivery service, return receipt 
1121  requested, to all persons entitled to receive a notice of sale 
1122  under subsection (6). 
1123         (g) Before a sale conducted pursuant to this subsection, a 
1124  junior interestholder may pursue adjudication by court, by 
1125  interpleader, or in any other authorized manner respecting any 
1126  matter that is disputed by the junior interestholder. 
1127         (8) EFFECT OF TRUSTEE’S SALE.— 
1128         (a) A sale conducted under subsection (7) forecloses and 
1129  terminates all interests of any person to whom notice is given 
1130  under paragraphs (4)(e) and (6)(b), and of any other person 
1131  claiming interests by, through, or under any such person, in the 
1132  affected timeshare interest. A failure to give notice to any 
1133  person entitled to notice does not affect the validity of the 
1134  sale as to the interests of any person properly notified. A 
1135  person entitled to notice but not given notice has the rights of 
1136  a person not made a defendant in a judicial foreclosure. 
1137         (b) All rights of redemption that have been foreclosed 
1138  under this section terminate on the issuance of a certificate of 
1139  sale under paragraph (7)(f). 
1140         (c) A sale conducted under subsection (7) releases the 
1141  obligor’s liability for all amounts secured by the lien. The 
1142  lienholder does not have a right to any deficiency judgment 
1143  against the obligor after a sale of the obligor’s timeshare 
1144  interest under this section. 
1145         (d) The issuance and recording of the trustee’s deed is 
1146  presumed valid and may be relied upon by third parties without 
1147  actual knowledge of any irregularities in the foreclosure 
1148  proceedings. If for any reason there is an irregularity in the 
1149  foreclosure proceedings, a purchaser becomes subrogated to all 
1150  the rights of the lienholder to the indebtedness that it secured 
1151  to the extent necessary to reforeclose the mortgage lien in 
1152  order to correct the irregularity and becomes entitled to an 
1153  action de novo for the foreclosure of such mortgage lien. Any 
1154  subsequent reforeclosure required to correct an irregularity may 
1155  be conducted under this section. 
1156         (9) TRUSTEE’S CERTIFICATE OF COMPLIANCE.— 
1157         (a) Within 10 calendar days after the trustee conducts a 
1158  sale, the trustee shall execute and acknowledge a certificate of 
1159  compliance which: 
1160         1. Confirms delivery of the notice of default and intent to 
1161  foreclose and attaches the affidavit required under subsection 
1162  (5). 
1163         2. States that the default was not cured, that the trustee 
1164  did not receive any written objection under paragraph (3)(a), 
1165  and that the timeshare interest was not redeemed under paragraph 
1166  (3)(b). 
1167         3. States that the trustee is in possession of the original 
1168  promissory note executed by the mortgagor and secured by the 
1169  mortgage lien. 
1170         4. Confirms that the notice of sale was published as 
1171  required under paragraph (6)(d) and attaches an affidavit of 
1172  publication for the notice of sale. 
1173         5. Confirms that the notice of sale was mailed under 
1174  paragraph (6)(b) together with a list of the parties to whom the 
1175  notice of sale was mailed. 
1176         (b) In furtherance of the execution of the certificate of 
1177  compliance required under this subsection, the trustee is 
1178  entitled to rely upon an affidavit or certification from the 
1179  lienholder as to the facts and circumstances of default and 
1180  failure to cure the default. 
1181         (10) TRUSTEE’S DEED.— 
1182         (a) The trustee’s deed must include the name and address of 
1183  the trustee, the name and address of the highest bidder, the 
1184  name of the former owner, a legal description of the timeshare 
1185  interest, and the name and address of the preparer of the 
1186  trustee’s deed. The trustee’s deed must recite that the 
1187  certificate of compliance was recorded and may not contain 
1188  warranties of title from the trustee. The certificate of 
1189  compliance must be attached as an exhibit to the trustee’s deed. 
1190         (b) Ten calendar days after a sale, absent the prior filing 
1191  and service on the trustee of a judicial action to enjoin 
1192  issuance of the trustee’s deed to the timeshare interest, the 
1193  trustee shall: 
1194         1. Cancel the original promissory note executed by the 
1195  mortgagor and secured by the mortgage lien. 
1196         2. Issue a trustee’s deed to the highest bidder. 
1197         3. Record the trustee’s deed in the official records of the 
1198  county or counties in which the timeshare interest is located. 
1199         (c) The certificate of compliance and trustee’s deed 
1200  together are presumptive evidence of the truth of the matters 
1201  set forth in them, and an action to set aside the sale and void 
1202  the trustee’s deed may not be filed or otherwise pursued against 
1203  any person acquiring the timeshare interest for value. 
1204         1. The trustee’s deed conveys to the highest bidder all 
1205  rights, title, and interest in the timeshare interest that the 
1206  former owner had, or had the power to convey, together with all 
1207  rights, title, and interest that the former owner or his or her 
1208  successors in interest acquired after the execution of the 
1209  mortgage. 
1210         2. The issuance and recording of a trustee’s deed has the 
1211  same force and effect as the issuance and recording of a 
1212  certificate of title by the clerk of the court in a judicial 
1213  foreclosure action. 
1214         (11) DISPOSITION OF PROCEEDS OF SALE.— 
1215         (a) The trustee shall apply the proceeds of the sale as 
1216  follows: 
1217         1. To the expenses of the sale, including compensation of 
1218  the trustee. 
1219         2. To the amount owed and set forth in the notice as 
1220  required under subparagraph (6)(a)6. 
1221         3. If there are junior interestholders, the trustee may 
1222  file an action in interpleader, pay the surplus to a court of 
1223  competent jurisdiction, name the competing junior 
1224  interestholders, and ask the court to determine the proper 
1225  distribution of the surplus. In any interpleader action, the 
1226  trustee shall recover reasonable attorney’s fees and costs. 
1227         4. If there are no junior interestholders, or if all junior 
1228  interestholders have been paid, any surplus shall be paid to the 
1229  former owner. If the trustee is unable to locate the former 
1230  owner within 1 year after the sale, the surplus, if any, shall 
1231  be deposited with the Chief Financial Officer under chapter 717. 
1232         (b) In disposing of the proceeds of the sale, the trustee 
1233  may rely on the information provided in the affidavit of the 
1234  lienholder under paragraph (2)(b), and if there is a dispute or 
1235  uncertainty over such claims, the trustee may submit the matter 
1236  to adjudication by court, by interpleader, or in any other 
1237  authorized manner and shall recover reasonable attorney’s fees 
1238  and costs. 
1239         (12) JUDICIAL FORECLOSURE ACTIONS.—The trustee foreclosure 
1240  procedure established in this section does not impair or 
1241  otherwise affect the lienholder’s continuing right to bring a 
1242  judicial foreclosure action, in lieu of using the trustee 
1243  foreclosure procedure, with respect to any mortgage lien. 
1244         (13) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE 
1245  PROCEDURE.—An action for actual damages for a material violation 
1246  of this section may be brought by an obligor against the 
1247  lienholder for the failure to follow the trustee foreclosure 
1248  procedure contained in this section. 
1249         Section 11. Subsections (1) and (4) of section 721.86, 
1250  Florida Statutes, are amended to read: 
1251         721.86 Miscellaneous provisions.— 
1252         (1) If there is a conflict between the provisions of this 
1253  part and the other provisions of this chapter, chapter 702, or 
1254  other applicable law, the provisions of this part prevail. The 
1255  procedures in this part must be given effect in the context of 
1256  any foreclosure proceedings against timeshare interests estates 
1257  governed by this chapter, chapter 702, chapter 718, or chapter 
1258  719. 
1259         (4) In addition to assessment liens and mortgage liens 
1260  arising after the effective date of this part, except as 
1261  provided in s. 721.855(13), the provisions of this part apply to 
1262  all assessment liens and mortgage liens existing before prior to 
1263  the effective date of this act regarding which a foreclosure 
1264  proceeding has not yet commenced. 
1265         Section 12. Subsection (2) of section 721.20, Florida 
1266  Statutes, is amended to read: 
1267         721.20 Licensing requirements; suspension or revocation of 
1268  license; exceptions to applicability; collection of advance fees 
1269  for listings unlawful.— 
1270         (2) Solicitors who engage only in the solicitation of 
1271  prospective purchasers and any purchaser who refers no more than 
1272  20 people to a developer or managing entity per year or who 
1273  otherwise provides testimonials on behalf of a developer or 
1274  managing entity are exempt from the provisions of chapter 475. 
1275         Section 13. This act shall take effect upon becoming a law.