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

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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

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Florida Senate - 2010                             CS for SB 2358 
 
By the Committee on Regulated Industries; and Senator Gardiner 
580-03626-10                                          20102358c1 
1                        A bill to be entitled 
2         An act relating to timeshares; amending s. 721.07, 
3         F.S.; providing lien disclosure requirements for filed 
4         public offering statements for certain timeshare 
5         plans; amending s. 721.16, F.S.; authorizing a 
6         managing entity to bring judicial action or a trustee 
7         procedure to foreclose certain liens under specified 
8         conditions; renaming part III of ch. 721, F.S.; 
9         amending s. 721.81, F.S.; revising and providing 
10         legislative purposes of the part; amending s. 721.82, 
11         F.S.; revising and providing definitions; amending s. 
12         721.83, F.S.; revising the application of certain 
13         provisions with respect to judicial foreclosure 
14         actions; amending s. 721.85, F.S.; conforming 
15         provisions to changes made by the act; creating s. 
16         721.855, F.S.; establishing procedure for the trustee 
17         foreclosure of assessment liens; providing for the 
18         appointment of a trustee; providing recording 
19         requirements for such liens; providing procedures for 
20         the initiation of a trustee foreclosure procedure 
21         against a timeshare interest; providing procedures for 
22         an obligor’s objection to the trustee foreclosure 
23         procedure; providing conditions to a trustee’s 
24         exercise of power of sale; providing requirements for 
25         a notice of default and intent to sell; providing 
26         requirements for a notice of sale; providing 
27         requirements for the sale by auction of foreclosed 
28         encumbered timeshare interests; providing requirements 
29         for a trustee’s certificate of compliance; providing 
30         for the effect of a trustee’s sale; providing 
31         requirements for a trustee’s deed; providing for the 
32         disposition of proceeds of the sale; providing that 
33         the trustee foreclosure procedure does not impair or 
34         otherwise affect the right to bring certain actions; 
35         providing for application; providing for actions for 
36         failure to follow the trustee foreclosure procedure; 
37         creating s. 721.856, F.S.; establishing a procedure 
38         for the trustee foreclosure of mortgage liens; 
39         providing for the appointment of a trustee; providing 
40         recording requirements for such liens; providing 
41         procedures for the initiation of a trustee foreclosure 
42         procedure against a timeshare interest; providing 
43         procedures for an obligor’s objection to the trustee 
44         foreclosure procedure; providing conditions to a 
45         trustee’s exercise of a power of sale; providing 
46         requirements for a notice of default and intent to 
47         sell; providing requirements for a notice of sale; 
48         providing requirements for a trustee’s certificate of 
49         compliance; providing requirements for the sale by 
50         auction of foreclosed encumbered timeshare interests; 
51         providing for the effect of a trustee’s sale; 
52         providing requirements for a trustee’s deed; providing 
53         for the disposition of proceeds of the sale; providing 
54         that the trustee foreclosure procedure does not impair 
55         or otherwise affect the right to bring certain 
56         actions; providing for actions for failure to follow 
57         the trustee foreclosure procedure; amending s. 721.86, 
58         F.S.; providing for priority of application in case of 
59         conflict; amending s. 721.20, F.S.; conforming 
60         terminology; providing an effective date. 
61 
62  Be It Enacted by the Legislature of the State of Florida: 
63 
64         Section 1. Paragraph (jj) is added to subsection (5) of 
65  section 721.07, Florida Statutes, to read: 
66         721.07 Public offering statement.—Prior to offering any 
67  timeshare plan, the developer must submit a filed public 
68  offering statement to the division for approval as prescribed by 
69  s. 721.03, s. 721.55, or this section. Until the division 
70  approves such filing, any contract regarding the sale of that 
71  timeshare plan is subject to cancellation by the purchaser 
72  pursuant to s. 721.10. 
73         (5) Every filed public offering statement for a timeshare 
74  plan which is not a multisite timeshare plan shall contain the 
75  information required by this subsection. The division is 
76  authorized to provide by rule the method by which a developer 
77  must provide such information to the division. 
78         (jj) The following statement in conspicuous type: 
79 
80         The managing entity has a lien against each timeshare 
81         interest to secure the payment of assessments, ad 
82         valorem assessments, tax assessments, and special 
83         assessments. Your failure to make any required 
84         payments may result in the judicial or trustee 
85         foreclosure of an assessment lien and the loss of your 
86         timeshare interest. If the managing entity initiates a 
87         trustee procedure, you shall have the option to object 
88         to the use of the trustee foreclosure procedure and 
89         the managing entity may only proceed by filing a 
90         judicial foreclosure action. 
91         Section 2. Subsections (2) and (3) of section 721.16, 
92  Florida Statutes, are amended to read: 
93         721.16 Liens for overdue assessments; liens for labor 
94  performed on, or materials furnished to, a timeshare unit.— 
95         (2) The managing entity may bring a judicial an action in 
96  its name to foreclose a lien under subsection (1) in the manner 
97  a mortgage of real property is foreclosed and may also bring an 
98  action to recover a money judgment for the unpaid assessments 
99  without waiving any claim of lien. As an alternative to 
100  initiating a judicial action, the managing entity may initiate a 
101  trustee procedure to foreclose an assessment lien under s. 
102  721.855. 
103         (3) The lien is effective from the date of recording a 
104  claim of lien in the official public records of the county or 
105  counties in which the timeshare interest is accommodations and 
106  facilities constituting the timeshare plan are located. The 
107  claim of lien shall state the name of the timeshare plan and 
108  identify the timeshare interest for which the lien is effective, 
109  state the name of the purchaser, state the assessment amount 
110  due, and state the due dates. Notwithstanding any provision of 
111  s. 718.116(5) s. 718.116(5)(a) or s. 719.108(4) to the contrary, 
112  the lien is effective until satisfied or until 5 years have 
113  expired after the date the claim of lien is recorded unless, 
114  within that time, an action to enforce the lien is commenced 
115  pursuant to subsection (2). A claim of lien for assessments may 
116  include only assessments which are due when the claim is 
117  recorded. A claim of lien shall be signed and acknowledged by an 
118  officer or agent of the managing entity. Upon full payment, the 
119  person making the payment is entitled to receive a satisfaction 
120  of the lien. 
121         Section 3. Part III of chapter 721, Florida Statutes, 
122  entitled “Foreclosure of Liens on Timeshare Estates,” is renamed 
123  “Foreclosure of Liens on Timeshare Interests.” 
124         Section 4. Section 721.81, Florida Statutes, is amended to 
125  read: 
126         721.81 Legislative purpose.—The purposes of this part are 
127  to: 
128         (1) Recognize that timeshare interests estates are parcels 
129  of real property used for vacation experience rather than for 
130  homestead or investment purposes and that there are numerous 
131  timeshare interests estates in this the state. 
132         (2) Recognize that the economic health and efficient 
133  operation of the vacation ownership industry are in part 
134  dependent upon the availability of an efficient and economical 
135  process for all timeshare interest foreclosures foreclosure. 
136         (3) Recognize the need to assist both owners’ associations 
137  and mortgagees by simplifying and expediting the process for the 
138  judicial and trustee of foreclosure of assessment liens and 
139  mortgage liens against timeshare interests estates. 
140         (4) Improve judicial economy and reduce court congestion 
141  and the cost to taxpayers by establishing streamlined procedures 
142  for the judicial and trustee foreclosure of assessment liens and 
143  mortgage liens against timeshare interests estates. 
144         (5) Recognize that nearly all timeshare interest 
145  foreclosures are uncontested. 
146         (6) Protect the ability of consumers who own timeshare 
147  interests located in this state to choose a judicial proceeding 
148  for the foreclosure of an assessment lien or a mortgage lien 
149  against their timeshare interest. 
150         (7) Recognize that the use of the trustee foreclosure 
151  procedure established by ss. 721.855 and 721.856 shall have the 
152  same force and effect as the use of the judicial foreclosure 
153  procedure against a timeshare interest with respect to the 
154  provisions of this chapter or any other applicable law. However, 
155  obligors shall not be subject to a deficiency judgment even if 
156  the proceeds from the sale of the timeshare interest are 
157  insufficient to offset the amounts secured by the lien. 
158         Section 5. Section 721.82, Florida Statutes, is amended to 
159  read: 
160         721.82 Definitions.—As used in this part, the term: 
161         (1) “Amounts secured by the lien” means all amounts secured 
162  by an assessment lien or mortgage lien, including, but not 
163  limited to, all past due amounts, accrued interest, late fees, 
164  taxes, advances for the payment of taxes, insurance and 
165  maintenance of the timeshare interest, and any fees or costs 
166  incurred by the lienholder or trustee, including any reasonable 
167  attorney’s fees, trustee’s fees, and costs incurred in 
168  connection with the default. 
169         (2)(1) “Assessment lien” means: 
170         (a) A lien for delinquent assessments as provided in ss. 
171  721.16, 718.116, and 719.108, and 721.16 as to timeshare 
172  condominiums; or 
173         (b) A lien for unpaid ad valorem assessments, tax 
174  assessments, taxes and special assessments as provided in s. 
175  192.037(8). 
176         (3)(2) “Junior interestholder” means any person who has a 
177  lien or interest of record against a timeshare interest estate 
178  in the county or counties in which the timeshare interest estate 
179  is located, which is inferior to the mortgage lien or assessment 
180  lien being foreclosed under this part. 
181         (4)(3) “Lienholder” means a holder of an assessment lien or 
182  a holder of a mortgage lien, as applicable. A receiver appointed 
183  under s. 721.26 is a lienholder for purposes of foreclosure of 
184  assessment liens under this part. 
185         (5)(4) “Mortgage” has the same meaning set forth in s. 
186  697.01. 
187         (6)(5) “Mortgage lien” means a security interest in a 
188  timeshare interest estate created by a mortgage encumbering the 
189  timeshare interest estate. 
190         (7)(6) “Mortgagee” means a person holding a mortgage lien. 
191         (8)(7) “Mortgagor” means a person granting a mortgage lien 
192  or a person who has assumed the obligation secured by a mortgage 
193  lien. 
194         (9)(8) “Notice address” means: 
195         (a) As to an assessment lien, the address of the current 
196  owner of a timeshare interest estate as reflected by the books 
197  and records of the timeshare plan under ss. 721.13(4) and 
198  721.15(7). 
199         (b) As to a mortgage lien: 
200         1. The address of the mortgagor as set forth in the 
201  mortgage, the promissory note or a separate document executed by 
202  the mortgagor at the time the mortgage lien was created, or the 
203  most current address of the mortgagor according to the records 
204  of the mortgagee; and 
205         2. If the current owner of the timeshare interest estate is 
206  different from the mortgagor, the address of the current owner 
207  of the timeshare interest estate as reflected by the books and 
208  records of the mortgagee. 
209         (c) As to a junior interestholder, the address as set forth 
210  in the recorded instrument creating the junior lien interest or 
211  interest lien, or in any recorded amendment supplement thereto 
212  changing the address, or in any written notification by the 
213  junior interestholder to the foreclosing lienholder changing the 
214  of such change in address. 
215         (10)(9) “Obligor” means the mortgagor, the person subject 
216  to an assessment lien, or the record owner of the timeshare 
217  interest estate. 
218         (11) “Permitted delivery service” means any nationally 
219  recognized common carrier delivery service or international 
220  airmail service that allows for return receipt service. 
221         (12)(10) “Registered agent” means an agent duly appointed 
222  by the obligor under s. 721.84 for the purpose of accepting all 
223  notices and service of process under this part. A registered 
224  agent may be an individual resident in this state whose business 
225  office qualifies as a registered office, or a domestic or 
226  foreign corporation or a not-for-profit corporation as defined 
227  in chapter 617 authorized to transact business or to conduct its 
228  affairs in this state, whose business office qualifies as a 
229  registered office. A registered agent for any obligor may not be 
230  the lienholder or the attorney for the lienholder. 
231         (13)(11) “Registered office” means the street address of 
232  the business office of the registered agent appointed under s. 
233  721.84, located in this state. 
234         (14) “Trustee” means an attorney who is a member in good 
235  standing of The Florida Bar or his or her law firm, or a title 
236  insurer authorized to transact business in this state under s. 
237  624.401, appointed as trustee or as substitute trustee in 
238  accordance with s. 721.855 or s. 721.856. A receiver appointed 
239  under s. 721.26 may act as a trustee under s. 721.855. A trustee 
240  must be independent as required by s. 721.05(20). 
241         Section 6. Section 721.83, Florida Statutes, is amended to 
242  read: 
243         721.83 Consolidation of judicial foreclosure actions.— 
244         (1) A complaint in a foreclosure proceeding involving 
245  timeshare interests estates may join in the same action multiple 
246  defendant obligors and junior interestholders of separate 
247  timeshare interests estates, provided: 
248         (a) The foreclosure proceeding involves a single timeshare 
249  property. 
250         (b) The foreclosure proceeding is filed by a single 
251  plaintiff. 
252         (c) The default and remedy provisions in the written 
253  instruments on which the foreclosure proceeding is based are 
254  substantially the same for each defendant. 
255         (d) The nature of the defaults alleged is the same for each 
256  defendant. 
257         (e) No more than 15 timeshare interests estates, without 
258  regard to the number of defendants, are joined within the same 
259  consolidated foreclosure action. 
260         (2) In any foreclosure proceeding involving multiple 
261  defendants filed under subsection (1), the court shall sever for 
262  separate trial any count of the complaint in which a defense or 
263  counterclaim is timely raised by a defendant. 
264         (3) A consolidated timeshare foreclosure action shall be 
265  considered a single action, suit, or proceeding for the payment 
266  of filing fees and service charges pursuant to general law. In 
267  addition to the payment of such filing fees and service charges, 
268  an additional filing fee of up to $10 for each timeshare 
269  interest estate joined in that action shall be paid to the clerk 
270  of court. 
271         Section 7. Section 721.85, Florida Statutes, is amended to 
272  read: 
273         721.85 Service to notice address or on registered agent.— 
274         (1) Service of process for a foreclosure proceeding 
275  involving a timeshare interest estate may be made by any means 
276  recognized by law. In addition, substituted service on an 
277  obligor a party who has appointed a registered agent under s. 
278  721.84 may be made on such registered agent at the registered 
279  office. Also, when using s. 48.194 where in rem or quasi in rem 
280  relief only is sought, such service of process provisions are 
281  modified in connection with a foreclosure proceeding against a 
282  timeshare interest estate to provide that: 
283         (a) Such service of process may be made on any person 
284  whether the person is located inside or outside this state, by 
285  certified mail, or registered mail, or permitted delivery 
286  service, return receipt requested, addressed to the person to be 
287  served at the notice address, or on the person’s party’s 
288  registered agent duly appointed under s. 721.84, at the 
289  registered office; and 
290         (b) Service shall be considered obtained upon the signing 
291  of the return receipt by any person at the notice address, or by 
292  the registered agent. 
293         (2) The current owner and the mortgagor of a timeshare 
294  interest estate must promptly notify the owners’ association and 
295  the mortgagee of any change of address. 
296         (3) Substituted notice under s. 721.855 or s. 721.856 for 
297  any party who has appointed a registered agent under s. 721.84 
298  may be made on such registered agent at the registered office. 
299         Section 8. Section 721.855, Florida Statutes, is created to 
300  read: 
301         721.855 Procedure for the trustee foreclosure of assessment 
302  liens.—The provisions of this section establish a trustee 
303  foreclosure procedure for assessment liens. 
304         (1) APPOINTMENT OF TRUSTEE.— 
305         (a) A trustee or a substitute trustee may be appointed by a 
306  lienholder at any time by recording a notice of appointment of 
307  trustee or notice of substitution of trustee in the official 
308  records of the county or counties in which the timeshare 
309  interest is located. A lienholder may appoint multiple trustees 
310  in a single appointment, and any appointed trustee may be used 
311  by the lienholder regarding the trustee foreclosure of any 
312  assessment lien under any timeshare plan for which the trustee 
313  is appointed. 
314         (b) The recorded notice of appointment of trustee or notice 
315  of substitution of trustee shall contain the name and address of 
316  the trustee or substitute trustee, the name and address of the 
317  lienholder, and the name and address of the timeshare plan. 
318         (2) INITIATING THE USE OF A TRUSTEE FORECLOSURE PROCEDURE.— 
319         (a) Before initiating the trustee foreclosure procedure 
320  against any timeshare interest in a given timeshare plan, the 
321  managing entity shall inform owners of timeshare interests in 
322  the timeshare plan in writing that the managing entity has the 
323  right to elect to use the trustee foreclosure procedure with 
324  respect to foreclosure of assessment liens as established in 
325  this section. The managing entity shall be deemed to have 
326  complied with the requirements of this paragraph if the owners 
327  of timeshare interests in the given timeshare plan are informed 
328  by mail sent to each owner’s notice address, in the notice of an 
329  annual or special meeting of the owners, by posting on the 
330  website of the applicable timeshare plan, or by any owner 
331  communication used by the managing entity. 
332         (b) Before initiating the trustee foreclosure procedure 
333  against any timeshare interest, a claim of lien against the 
334  timeshare interest shall be recorded under s. 721.16 or, if 
335  applicable, s. 718.116 or s. 719.108, and the notice of the 
336  intent to file a lien shall be given under s. 718.121 for 
337  timeshare condominiums and s. 719.108 for timeshare 
338  cooperatives. 
339         (c)1. In order to initiate the trustee foreclosure 
340  procedure against a timeshare interest, the lienholder shall 
341  deliver an affidavit to the trustee that identifies the obligor, 
342  the notice address of the obligor, the timeshare interest, the 
343  date that the notice of the intent to file a lien was given, if 
344  applicable, the official records book and page number where the 
345  claim of lien is recorded, and the name and notice address of 
346  any junior interestholder. The affidavit shall be accompanied by 
347  a title search of the timeshare interest identifying any junior 
348  interestholders of record, and the effective date of the title 
349  search must be a date that is within 60 calendar days before the 
350  date of the affidavit. 
351         2. The affidavit shall also state the facts that establish 
352  that the obligor has defaulted in the obligation to make a 
353  payment under a specified provision of the timeshare instrument 
354  or applicable law. 
355         3. The affidavit shall also specify the amounts secured by 
356  the lien as of the date of the affidavit and a per diem amount 
357  to account for further accrual of the amounts secured by the 
358  lien. 
359         (3) OBLIGOR’S RIGHTS.— 
360         (a) The obligor may object to the lienholder’s use of the 
361  trustee foreclosure procedure for a specific default any time 
362  before the sale of the timeshare interest under subsection (7) 
363  by delivering a written objection to the trustee using the 
364  objection form provided for in subsection (5). If the trustee 
365  receives the written objection from the obligor, the trustee may 
366  not proceed with the trustee foreclosure procedure as to the 
367  default specified in the notice of default and intent to 
368  foreclose under subsection (5), and the lienholder may proceed 
369  thereafter only with a judicial foreclosure action as to that 
370  specified default. 
371         (b)	At any time before the trustee issues the certificate 
372  of sale under paragraph (7)(f), the obligor may cure the default 
373  and redeem the timeshare interest by paying to the trustee the 
374  amounts secured by the lien in cash or in certified funds. From 
375  the time the trustee issues the certificate of sale, there is no 
376  right of redemption. 
377         (4) CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A 
378  trustee may sell an encumbered timeshare interest foreclosed 
379  under this section if: 
380         (a) The trustee has received the affidavit from the 
381  lienholder under paragraph (2)(c); 
382         (b) The trustee has not received a written objection to the 
383  use of the trustee foreclosure procedure under paragraph (3)(a) 
384  and the timeshare interest was not redeemed under paragraph 
385  (3)(b); 
386         (c) There is no lis pendens recorded and pending against 
387  the same timeshare interest and the trustee has not been served 
388  notice of the filing of any action to enjoin the trustee 
389  foreclosure sale; 
390         (d) The trustee has provided written notice of default and 
391  intent to foreclose as required by subsection (5) and a period 
392  of at least 30 calendar days has elapsed after such notice is 
393  deemed perfected under subsection (5); and 
394         (e) The notice of sale required by subsection (6) has been 
395  recorded in the official records of the county or counties in 
396  which the timeshare interest is located. 
397         (5) NOTICE OF DEFAULT AND INTENT TO FORECLOSE.— 
398         (a) In any foreclosure proceeding under this section, the 
399  trustee is required to notify the obligor of the proceeding by 
400  sending the obligor a written notice of default and intent to 
401  foreclose to the notice address of the obligor by certified 
402  mail, registered mail, or permitted delivery service, return 
403  receipt requested, and by first-class mail or permitted delivery 
404  service, postage prepaid, as follows: 
405         1. The notice of default and intent to foreclose shall 
406  identify the obligor, the notice address of the obligor, the 
407  legal description of the timeshare interest, the nature of the 
408  default, the amounts secured by the lien, and a per diem amount 
409  to account for further accrual of the amounts secured by the 
410  lien and shall state the method by which the obligor may cure 
411  the default, including the period of time following the date of 
412  the notice of default and intent to foreclose within which the 
413  obligor may cure the default. 
414         2. The notice of default and intent to foreclose shall 
415  include an objection form with which the obligor can object to 
416  the use of the trustee foreclosure procedure by signing and 
417  returning the objection form to the trustee. The objection form 
418  shall identify the obligor, the notice address of the obligor, 
419  the timeshare interest, and the return address of the trustee 
420  and shall state: “The undersigned obligor exercises the 
421  obligor’s right to object to the use of the trustee foreclosure 
422  procedure contained in section 721.855, Florida Statutes.” 
423         3. The notice of default and intent to foreclose shall also 
424  contain a statement in substantially the following form: 
425 
426         If you fail to cure the default as set forth in this 
427         notice or take other appropriate action with regard to 
428         this foreclosure matter, you risk losing ownership of 
429         your timeshare interest through the trustee 
430         foreclosure procedure established in section 721.855, 
431         Florida Statutes. You may choose to sign and send to 
432         the trustee the enclosed objection form, exercising 
433         your right to object to the use of the trustee 
434         foreclosure procedure. Upon the trustee’s receipt of 
435         your signed objection form, the foreclosure of the 
436         lien with respect to the default specified in this 
437         notice shall be subject to the judicial foreclosure 
438         procedure only. You have the right to cure your 
439         default in the manner set forth in this notice at any 
440         time before the trustee’s sale of your timeshare 
441         interest. If you do not object to the use of the 
442         trustee foreclosure procedure, you will not be subject 
443         to a deficiency judgment even if the proceeds from the 
444         sale of your timeshare interest are insufficient to 
445         offset the amounts secured by the lien. 
446 
447         4. The trustee shall also mail a copy of the notice of 
448  default and intent to foreclose, without the objection form, to 
449  the notice address of any junior interestholder by certified 
450  mail, registered mail, or permitted delivery service, return 
451  receipt requested, and by first-class mail or permitted delivery 
452  service, postage prepaid. 
453         5. Notice under this paragraph is considered perfected upon 
454  the trustee receiving the return receipt bearing the signature 
455  of the obligor or junior interestholder, as applicable, within 
456  30 calendar days after the trustee sent the notice under this 
457  paragraph. Notice under this paragraph is not perfected if the 
458  notice is returned as undeliverable within 30 calendar days 
459  after the trustee sent the notice, if the trustee cannot 
460  ascertain from the receipt that the obligor or junior 
461  interestholder, as applicable, is the person who signed the 
462  receipt, or if the receipt from the obligor or junior 
463  interestholder, as applicable, is returned or refused within 30 
464  calendar days after the trustee sent the notice. 
465         (b) If the notice required by paragraph (a) is returned as 
466  undeliverable within 30 calendar days after the trustee sent the 
467  notice, the trustee shall perform a diligent search and inquiry 
468  to obtain a different address for the obligor or junior 
469  interestholder. For purposes of this paragraph, any address 
470  known and used by the lienholder for sending regular mailings or 
471  other communications from the lienholder to the obligor or 
472  junior interestholder, as applicable, shall be included with 
473  other addresses produced from the diligent search and inquiry, 
474  if any.  
475         1. If the trustee’s diligent search and inquiry produces an 
476  address different from the notice address, the trustee shall 
477  mail a copy of the notice by certified mail, registered mail, or 
478  permitted delivery service, return receipt requested, and by 
479  first-class mail or permitted delivery service, postage prepaid 
480  to the new address. Notice under this subparagraph is considered 
481  perfected upon the trustee receiving the return receipt bearing 
482  the signature of the obligor or junior interestholder, as 
483  applicable, within 30 calendar days after the trustee sent the 
484  notice under this paragraph. Notice under this subparagraph is 
485  not perfected if the trustee cannot ascertain from the receipt 
486  that the obligor or junior interestholder, as applicable, is the 
487  person who signed the receipt or the receipt from the obligor or 
488  junior interestholder, as applicable, is returned refused. 
489  Unless the trustee perfects notice under this subparagraph, the 
490  trustee shall perfect service in the manner set forth in 
491  paragraph (c). 
492         2. If the trustee’s diligent search and inquiry does not 
493  locate a different address for the obligor or junior 
494  interestholder, as applicable, the trustee may perfect notice 
495  against that person under paragraph (c). 
496         (c) If the notice is not perfected under subparagraph 
497  (a)5., and such notice was not returned as undeliverable, or if 
498  the notice was not perfected under subparagraph (b)1. or 
499  subparagraph (b)2., the trustee may perfect notice by 
500  publication in a newspaper of general circulation in the county 
501  or counties in which the timeshare interest is located. The 
502  notice shall appear at least once a week for 2 consecutive 
503  weeks. The trustee may group an unlimited number of notices in 
504  the same publication, provided that all of the notices pertain 
505  to the same timeshare plan. Notice under this paragraph is 
506  considered perfected upon publication as required in this 
507  paragraph. 
508         (d) If notice is perfected under subparagraph (a)5., the 
509  trustee shall execute an affidavit in recordable form setting 
510  forth the manner in which notice was perfected and attach the 
511  affidavit to the certificate of compliance set forth in 
512  subsection (9). The affidavit shall state the nature of the 
513  notice, the date on which the notice was mailed, the name and 
514  address on the envelope containing the notice, the manner in 
515  which the notice was mailed, and the basis for that knowledge. 
516         (e) If notice is perfected under subparagraph (b)1., the 
517  trustee shall execute an affidavit in recordable form setting 
518  forth the manner in which notice was perfected and attach the 
519  affidavit to the certificate of compliance set forth in 
520  subsection (9). The affidavit shall state the nature of the 
521  notice, the dates on which the notice was mailed, the name and 
522  addresses on the envelopes containing the notice, the manner in 
523  which the notices were mailed, the fact that a signed receipt 
524  from the certified mail, registered mail, or permitted delivery 
525  service was not timely received, and the name and address on the 
526  envelopes containing the notice. 
527         (f) If notice is perfected under paragraph (c), the trustee 
528  shall execute an affidavit in recordable form setting forth the 
529  manner in which notice was perfected and attach the affidavit to 
530  the certificate of compliance set forth in subsection (9). The 
531  affidavit shall state the nature of the notice, the date on 
532  which the notice was mailed, the name and address on the 
533  envelope containing the notice, the manner in which the notice 
534  was mailed, the fact that a signed receipt from the certified or 
535  registered mail or the permitted delivery service was not timely 
536  received, the date on which a copy of the notice was mailed 
537  again by first-class mail with the return address of the trustee 
538  on the envelope, and the name and address on the envelope 
539  containing the notice. The envelopes from the attempts to mail 
540  notice, if available, shall also be attached to the affidavit. 
541         (g) If notice is perfected by publication under paragraph 
542  (d), the trustee shall execute an affidavit in recordable form 
543  setting forth the manner in which notice was perfected and 
544  attach the affidavit to the certificate of compliance set forth 
545  in subsection (7). The affidavit shall include all the 
546  information contained in either paragraph (d) or paragraph (e), 
547  as applicable, shall state that the notice was perfected by 
548  publication after diligent search and inquiry was made for the 
549  current address for the person, and shall include a statement 
550  that notice was perfected by publication, and shall set forth 
551  the information required by s. 49.041 in the case of a natural 
552  person, or s. 49.051 in the case of a corporation, whichever is 
553  applicable. No other action of the trustee is necessary to 
554  perfect notice. 
555         (6) NOTICE OF SALE.— 
556         (a) The notice of sale shall set forth: 
557         1. The name and notice addresses of the obligor and any 
558  junior interestholder. 
559         2. The legal description of the timeshare interest. 
560         3. The name and address of the trustee. 
561         4. A description of the default that is the basis for the 
562  foreclosure. 
563         5. The official records book and page numbers where the 
564  claim of lien is recorded. 
565         6. The amounts secured by the lien and a per diem amount to 
566  account for further accrual of the amounts secured by the lien. 
567         7. The date, location, and starting time of the trustee’s 
568  sale. 
569         8. The right of and the method by which the obligor may 
570  cure the default or the right of any junior interestholder to 
571  redeem its interest up to the date the trustee issues the 
572  certificate of sale in accordance with paragraph (8)(f). 
573         (b) The trustee shall send a copy of the notice of sale 
574  within 3 business days following the date it is submitted for 
575  recording, by first-class mail or permitted delivery service, 
576  postage prepaid, to the notice addresses of the obligor and any 
577  junior interestholder. 
578         (c) Subsequent to the date of recording of the notice of 
579  sale, no notice is required to be given to any person claiming 
580  an interest in the timeshare interest except as provided in this 
581  section. The recording of the notice of sale has the same force 
582  and effect as the filing of a lis pendens in a judicial 
583  proceeding under s. 48.23. 
584         (d)1. The trustee shall publish the notice of sale in a 
585  newspaper of general circulation in the county or counties in 
586  which the timeshare interest is located at least once a week for 
587  2 consecutive weeks before the date of the sale. The last 
588  publication shall occur at least 5 calendar days before the 
589  sale. 
590         2. The trustee may group an unlimited number of notices of 
591  sale in the same publication, provided that all of the notices 
592  of sale pertain to the same timeshare plan. 
593         (7) MANNER OF SALE.— 
594         (a) The sale of a timeshare interest by the trustee in a 
595  public auction shall be held in the county in which the 
596  timeshare interest is located, on the date, location, and 
597  starting time designated in the notice of sale, which shall be 
598  after 9 a.m. but before 4 p.m. on a business day not less than 
599  30 calendar days after the recording of the notice of sale. The 
600  trustee’s sale may occur online at a specific website on the 
601  Internet or in any other manner used by the clerk of the court 
602  for a judicial foreclosure sales procedure in the county or 
603  counties in which the timeshare interest is located. 
604         (b) The trustee shall conduct the sale and act as the 
605  auctioneer. 
606         (c) The lienholder and any person other than the trustee 
607  may bid at the sale. In lieu of participating in the sale, the 
608  lienholder may send the trustee written bidding instructions 
609  that the trustee shall announce as appropriate during the sale. 
610         (d) The trustee may postpone the sale from time to time. In 
611  such case, notice of postponement must be given by the trustee 
612  at the date, time, and location contained in the notice of sale. 
613  The notice of sale for the postponed sale shall be mailed under 
614  paragraph (6)(b), recorded under paragraph (4)(e), and published 
615  pursuant to paragraph (6)(d). The effective date of the initial 
616  notice of sale under paragraph (6)(b) is not affected by a 
617  postponed sale. 
618         (e) The highest bidder of the timeshare interest shall pay 
619  the price bid to the trustee in cash or certified funds on the 
620  day of the sale. If the lienholder is the highest bidder, the 
621  lienholder shall receive a credit up to the amount set forth in 
622  the notice of sale under subparagraph (6)(a)6. 
623         (f) On the date of the sale the trustee shall issue to the 
624  highest bidder a certificate of sale stating that a foreclosure 
625  conforming to the requirements of this section has occurred, 
626  including the time, location, and date of the sale, that the 
627  timeshare interest was sold, the amounts secured by the lien, 
628  and the amount of the highest bid. A copy of the certificate of 
629  sale shall be mailed by certified mail, registered mail, or 
630  permitted delivery service, return receipt requested, to all 
631  persons entitled to receive a notice of sale under subsection 
632  (6). 
633         (g) Before a sale conducted under this subsection (7), a 
634  junior interestholder may pursue adjudication by court, by 
635  interpleader, or otherwise respecting any matter that is 
636  disputed by the junior interestholder. 
637         (8) EFFECT OF TRUSTEE’S SALE.— 
638         (a) A sale conducted under subsection (7) forecloses and 
639  terminates all interests of any person to whom notice is given 
640  under paragraph (4)(d) and under paragraph (6)(b), and of any 
641  other person claiming by, through, or under any such person, in 
642  the affected timeshare interest. A failure to give notice to any 
643  person entitled to notice does not affect the validity of the 
644  sale as to the interests of any person properly notified. A 
645  person entitled to notice but not given notice has the rights of 
646  a person not made a defendant in a judicial foreclosure. 
647         (b) On the issuance of a certificate of sale under 
648  paragraph (7)(f), all rights of redemption that have been 
649  foreclosed under this section shall terminate. 
650         (c) A sale conducted under subsection (7) releases the 
651  obligor’s liability for all amounts secured by the lien. The 
652  lienholder has no right to any deficiency judgment against the 
653  obligor after a sale of the obligor’s timeshare interest under 
654  this section. 
655         (d) The issuance and recording of the trustee’s deed is 
656  presumed valid and may be relied upon by third parties without 
657  actual knowledge of irregularities in the foreclosure 
658  proceedings. If for any reason there is an irregularity in the 
659  foreclosure proceedings, a purchaser becomes subrogated to all 
660  the rights of the lienholder to the indebtedness that it secured 
661  to the extent necessary to reforeclose the assessment lien in 
662  order to correct the irregularity, and becomes entitled to an 
663  action de novo for the foreclosure of such assessment lien. Any 
664  subsequent reforeclosure required to correct an irregularity may 
665  be conducted under this section. 
666         (9) TRUSTEE’S CERTIFICATE OF COMPLIANCE.— 
667         (a) Within 10 calendar days after the trustee conducts a 
668  sale, the trustee shall execute and acknowledge a certificate of 
669  compliance which shall: 
670         1. Confirm delivery of the notice of default and intent to 
671  foreclose and attach the affidavit required under subsection 
672  (5). 
673         2. State that the default was not cured, that the trustee 
674  did not receive any written objection under paragraph (3)(a), 
675  and that the timeshare interest was not redeemed under paragraph 
676  (3)(b). 
677         3. Confirm that the notice of sale was published as 
678  required under paragraph (6)(d) and attach an affidavit of 
679  publication for the notice of sale. 
680         4. Confirm that the notice of sale was mailed under 
681  paragraph (6)(b) together with a list of the parties to whom the 
682  notice of sale was mailed. 
683         (b) In furtherance of the execution the certificate of 
684  compliance required under this subsection, the trustee is 
685  entitled to rely upon an affidavit or certification from the 
686  lienholder as to the facts and circumstances of default and 
687  failure to cure the default. 
688         (10) TRUSTEE’S DEED.— 
689         (a) The trustee’s deed shall include the name and address 
690  of the trustee, the name and address of the highest bidder, the 
691  name of the former owner, a legal description of the timeshare 
692  interest, and the name and address of the preparer of the 
693  trustee’s deed. The trustee’s deed shall recite that the 
694  certificate of compliance was recorded, and shall contain no 
695  warranties of title from the trustee. The certificate of 
696  compliance shall be attached as an exhibit to the trustee’s 
697  deed. 
698         (b) Ten calendar days after a sale, absent the prior filing 
699  and service on the trustee of a judicial action to enjoin 
700  issuance of the trustee’s deed to the timeshare interest, the 
701  trustee shall: 
702         1. Issue a trustee’s deed to the highest bidder. 
703         2. Record the trustee’s deed in the official records of the 
704  county or counties in which the timeshare interest is located. 
705         (c)1. The certificate of compliance and trustee’s deed 
706  together are presumptive evidence of the truth of the matters 
707  set forth in them, and no action to set aside the sale and void 
708  the trustee’s deed may be filed or otherwise pursued against any 
709  person acquiring the timeshare interest for value. 
710         2. The trustee’s deed conveys to the highest bidder all 
711  rights, title, and interest in the timeshare interest that the 
712  former owner had, or had the power to convey, at the time of the 
713  recording of the claim of lien, together with all rights, title, 
714  and interest that the former owner or his or her successors in 
715  interest acquired after the recording of the claim of lien. 
716         3. The issuance and recording of a trustee’s deed shall 
717  have the same force and effect as the issuance and recording of 
718  a certificate of title by the clerk of the court in a judicial 
719  foreclosure action. 
720         (11) DISPOSITION OF PROCEEDS OF SALE.— 
721         (a) The trustee shall apply the proceeds of the sale as 
722  follows: 
723         1. To the expenses of the sale, including compensation of 
724  the trustee. 
725         2. To the amount owed and set forth in the notice as 
726  required in subparagraph (6)(a)6. 
727         3. If there are junior interestholders, the trustee may 
728  file an action in interpleader, pay the surplus to a court of 
729  competent jurisdiction, name the competing junior 
730  interestholders, and ask the court to determine the proper 
731  distribution of the surplus. In any interpleader action, the 
732  trustee shall recover reasonable attorney’s fees and costs. 
733         4. If there are no junior interestholders, or if all junior 
734  interestholders have been paid, any surplus shall be paid to the 
735  former owner. If the trustee is unable to locate the former 
736  owner 1 year after the sale, the surplus, if any, shall be 
737  deposited with the Chief Financial Officer under chapter 717. 
738         (b) In disposing of the proceeds of the sale, the trustee 
739  may rely on the information provided in the affidavit of the 
740  lienholder under paragraph (2)(c) and, in the event of a dispute 
741  or uncertainty over such claims, the trustee has the discretion 
742  to submit the matter to adjudication by court, by interpleader, 
743  or otherwise and shall recover reasonable attorney’s fees and 
744  costs. 
745         (12) TRUSTEE FORECLOSURE ACTIONS.—The trustee foreclosure 
746  procedure established in this section does not impair or 
747  otherwise affect the lienholder’s continuing right to bring a 
748  judicial foreclosure action, in lieu of using the trustee 
749  foreclosure procedure, with respect to any assessment lien. 
750         (13) APPLICATION.—This section applies to any default 
751  giving rise to the imposition of an assessment lien which occurs 
752  after the effective date of this section. An amendment to a 
753  timeshare instrument is not required to permit a managing entity 
754  lienholder to use the trustee foreclosure procedures of this 
755  section. If a timeshare instrument contains any provision that 
756  prevents the use of the trustee foreclosure procedures, an 
757  amendment to the timeshare instrument permitting the use of the 
758  trustee foreclosure procedure set forth in this section may be 
759  adopted by a majority of those present and voting at a duly 
760  called meeting of the owners’ association at which at least 15 
761  percent of the voting interests are present in person or by 
762  proxy. 
763         (14) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE 
764  PROCEDURE.—An action for actual damages for a material violation 
765  of this section may be brought by an obligor against the 
766  lienholder for the failure to follow the trustee foreclosure 
767  procedure contained in this section. 
768         Section 9. Section 721.856, Florida Statutes, is created to 
769  read: 
770         721.856 Procedure for the trustee foreclosure of mortgage 
771  liens.—The provisions of this section establish a trustee 
772  foreclosure procedure for mortgage liens. 
773         (1) APPOINTMENT OF TRUSTEE.— 
774         (a) A trustee or a substitute trustee may be appointed by a 
775  lienholder at any time by recording a notice of appointment of 
776  trustee or notice of substitution of trustee in the official 
777  records of the county or counties in which the timeshare 
778  interest is located. A lienholder may appoint multiple trustees 
779  in a single appointment, and any appointed trustee may be used 
780  by the lienholder regarding the trustee foreclosure of any 
781  mortgage lien. 
782         (b) The recorded notice of appointment of trustee or notice 
783  of substitution of trustee shall contain the name and address of 
784  the trustee or substitute trustee, the name and address of the 
785  lienholder, and the name and address of the timeshare plan. 
786         (2) INITIATING THE TRUSTEE FORECLOSURE OF MORTGAGE LIENS.— 
787         (a) Before initiating the trustee foreclosure against a 
788  timeshare interest, the mortgage, or an amendment to a mortgage 
789  executed by the obligor before the effective date of this 
790  section, must contain a statement in substantially the following 
791  form: 
792 
793         If the mortgagor fails to make timely payments under 
794         the obligation secured by this mortgage, or is 
795         otherwise deemed in uncured default of this mortgage, 
796         the lien against the mortgagor’s timeshare interest 
797         created by this mortgage may be foreclosed in 
798         accordance with either a judicial foreclosure 
799         procedure or a trustee foreclosure procedure and may 
800         result in the loss of your timeshare interest. If the 
801         mortgagee initiates a trustee foreclosure procedure, 
802         the mortgagor shall have the option to object and the 
803         mortgagee may proceed only by filing a judicial 
804         foreclosure action. 
805 
806         (b)1. In order to initiate a trustee foreclosure procedure 
807  against a timeshare interest, the lienholder shall deliver an 
808  affidavit to the trustee that identifies the obligor, the notice 
809  address of the obligor, the timeshare interest, the official 
810  records book and page number where the mortgage is recorded, and 
811  the name and notice address of any junior interestholder. The 
812  affidavit shall be accompanied by a title search of the 
813  timeshare interest identifying any junior interestholders of 
814  record, and the effective date of the title search must be a 
815  date that is within 60 calendar days before the date of the 
816  affidavit. 
817         2. The affidavit shall also state the facts that establish 
818  that the obligor has defaulted in the obligation to make a 
819  payment under a specified provision of the mortgage or is 
820  otherwise deemed in uncured default under a specified provision 
821  of the mortgage. 
822         3. The affidavit shall also specify the amounts secured by 
823  the lien as of the date of the affidavit and a per diem amount 
824  to account for further accrual of the amounts secured by the 
825  lien. 
826         (3) OBLIGOR’S RIGHTS.— 
827         (a) The obligor may object to the lienholder’s use of the 
828  trustee’s foreclosure procedure for a specific default any time 
829  before the sale of the timeshare interest under subsection (8) 
830  by delivering a written objection to the trustee using the 
831  objection form provided for in subsection (5). If the trustee 
832  receives the written objection from the obligor, the trustee may 
833  not proceed with the trustee foreclosure procedure as to the 
834  default specified in the notice of default and intent to 
835  foreclose under subsection (5), and the lienholder may proceed 
836  thereafter only with a judicial foreclosure action as to that 
837  specified default. 
838         (b) At any time before the trustee issues the certificate 
839  of sale under paragraph (7)(f), the obligor may cure the default 
840  and redeem the timeshare interest by paying the amounts secured 
841  by the lien in cash or certified funds to the trustee. 
842  Otherwise, once the trustee issues the certificate of sale, 
843  there is no right of redemption. 
844         (4) CONDITIONS TO TRUSTEE’S EXERCISE OF POWER OF SALE.—A 
845  trustee may sell an encumbered timeshare interest foreclosed 
846  under this section if: 
847         (a) The trustee has received the affidavit from the 
848  lienholder under paragraph (2)(c); 
849         (b) The trustee has not received a written objection to the 
850  use of the trustee foreclosure procedure under paragraph (3)(a) 
851  and the timeshare interest was not redeemed under paragraph 
852  (3)(b); 
853         (c) There is no lis pendens recorded and pending against 
854  the same timeshare interest, and the trustee has not been served 
855  notice of the filing of any action to enjoin the trustee 
856  foreclosure sale; 
857         (d) The trustee is in possession of the original promissory 
858  note executed by the mortgagor and secured by the mortgage lien; 
859         (e) The trustee has provided written notice of default and 
860  intent to foreclose as required under subsection (5) and a 
861  period of at least 30 calendar days has elapsed after such 
862  notice is deemed perfected under subsection (5); and 
863         (f) The notice of sale required by subsection (6) has been 
864  recorded in the official records of the county in which the 
865  mortgage was recorded. 
866         (5) NOTICE OF DEFAULT AND INTENT TO FORECLOSE.— 
867         (a) In any foreclosure proceeding under this section, the 
868  trustee is required to notify the obligor of the proceeding by 
869  sending the obligor a written notice of default and intent to 
870  foreclose to the notice address of the obligor by certified 
871  mail, registered mail, or permitted delivery service, return 
872  receipt requested, and by first-class mail or permitted service, 
873  postage prepaid, as follows: 
874         1. The notice of default and intent to foreclose shall 
875  identify the obligor, the notice address of the obligor, the 
876  legal description of the timeshare interest, the nature of the 
877  default, the amounts secured by the lien, and a per diem amount 
878  to account for further accrual of the amounts secured by the 
879  lien and shall state the method by which the obligor may cure 
880  the default, including the period of time following the date of 
881  the notice of default and intent to foreclose within which the 
882  obligor may cure the default. 
883         2. The notice of default and intent to foreclose shall 
884  include an objection form with which the obligor can object to 
885  the use of the trustee foreclosure procedure by signing and 
886  returning the objection form to the trustee. The objection form 
887  shall identify the obligor, the notice address of the obligor, 
888  the timeshare interest, and the return address of the trustee 
889  and shall state: “The undersigned obligor exercises the 
890  obligor’s right to object to the use of the trustee foreclosure 
891  procedure contained in section 721.856, Florida Statutes.” 
892         3. The notice of default and intent to foreclose shall also 
893  contain a statement in substantially the following form: 
894 
895         If you fail to cure the default as set forth in this 
896         notice or take other appropriate action with regard to 
897         this foreclosure matter, you risk losing ownership of 
898         your timeshare interest through the trustee 
899         foreclosure procedure established in section 721.856, 
900         Florida Statutes. You may choose to sign and send to 
901         the trustee the enclosed objection form, exercising 
902         your right to object to the use of the trustee 
903         foreclosure procedure. Upon the trustee’s receipt of 
904         your signed objection form, the foreclosure of the 
905         lien with respect to the default specified in this 
906         notice shall be subject to the judicial foreclosure 
907         procedure only. You have the right to cure your 
908         default in the manner set forth in this notice at any 
909         time before the trustee’s sale of your timeshare 
910         interest. If you do not object to the use of the 
911         trustee foreclosure procedure, you will not be subject 
912         to a deficiency judgment even if the proceeds from the 
913         sale of your timeshare interest are insufficient to 
914         offset the amounts secured by the lien. 
915 
916         4. The trustee shall also mail a copy of the notice of 
917  default and intent to foreclose, without the objection form, to 
918  the notice address of any junior interestholder by certified 
919  mail, registered mail, or permitted delivery service, return 
920  receipt requested, and by first-class mail or permitted delivery 
921  service, postage prepaid. 
922         5. Notice under this paragraph is considered perfected upon 
923  the trustee receiving the return receipt bearing the signature 
924  of the obligor or junior interestholder, as applicable, within 
925  30 calendar days after the trustee sent the notice under this 
926  paragraph. Notice under this paragraph is not perfected if the 
927  notice is returned as undeliverable within 30 calendar days 
928  after the trustee sent the notice, if the trustee cannot 
929  ascertain from the receipt that the obligor or junior 
930  interestholder, as applicable, is the person who signed the 
931  receipt, or if the receipt from the obligor or junior 
932  interestholder, as applicable, is returned or refused within 30 
933  calendar days after the trustee sent the notice. 
934         (b) If the notice required by paragraph (a) is returned as 
935  undeliverable within 30 calendar days after the trustee sent the 
936  notice, the trustee shall perform a diligent search and inquiry 
937  to obtain a different address for the obligor or junior 
938  interestholder. For purposes of this paragraph, any address 
939  known and used by the lienholder for sending regular mailings or 
940  other communications from the lienholder to the obligor or 
941  junior interestholder, as applicable, shall be included with 
942  other addresses produced from the diligent search and inquiry, 
943  if any.  
944         1. If the trustee’s diligent search and inquiry produces an 
945  address different from the notice address, the trustee shall 
946  mail a copy of the notice by certified mail, registered mail, or 
947  permitted delivery service, return receipt requested, and by 
948  first-class mail or permitted delivery service, postage prepaid 
949  to the new address. Notice under this subparagraph is considered 
950  perfected upon the trustee receiving the return receipt bearing 
951  the signature of the obligor or junior interestholder, as 
952  applicable, within 30 calendar days after the trustee sent the 
953  notice under this paragraph. Notice under this subparagraph is 
954  not perfected if the trustee cannot ascertain from the receipt 
955  that the obligor or junior interestholder, as applicable, is the 
956  person who signed the receipt or the receipt from the obligor or 
957  junior interestholder, as applicable, is returned refused. 
958  Unless the trustee perfects notice under this subparagraph, the 
959  trustee shall perfect service in the manner set forth in 
960  paragraph (c). 
961         2. If the trustee’s diligent search and inquiry does not 
962  locate a different address for the obligor or junior 
963  interestholder, as applicable, the trustee may perfect notice 
964  against that person under paragraph (c). 
965         (c) If the notice is not perfected under subparagraph 
966  (a)5., and such notice was not returned as undeliverable, or if 
967  the notice was not perfected under subparagraph (b)1. or 
968  subparagraph (b)2., the trustee may perfect notice by 
969  publication in a newspaper of general circulation in the county 
970  or counties in which the timeshare interest is located. The 
971  notice shall appear at least once a week for 2 consecutive 
972  weeks. The trustee may group an unlimited number of notices in 
973  the same publication, provided that all of the notices pertain 
974  to the same timeshare plan. Notice under this paragraph is 
975  considered perfected upon publication as required in this 
976  paragraph. 
977         (d) If notice is perfected under subparagraph (a)5., the 
978  trustee shall execute an affidavit in recordable form setting 
979  forth the manner in which notice was perfected and attach the 
980  affidavit to the certificate of compliance set forth in 
981  subsection (9). The affidavit shall state the nature of the 
982  notice, the date on which the notice was mailed, the name and 
983  address on the envelope containing the notice, the manner in 
984  which the notice was mailed, and the basis for that knowledge. 
985         (e) If notice is perfected under subparagraph (b)1., the 
986  trustee shall execute an affidavit in recordable form setting 
987  forth the manner in which notice was perfected and attach the 
988  affidavit to the certificate of compliance set forth in 
989  subsection (9). The affidavit shall state the nature of the 
990  notice, the dates on which the notice was mailed, the name and 
991  addresses on the envelopes containing the notice, the manner in 
992  which the notices were mailed, the fact that a signed receipt 
993  from the certified mail, registered mail, or permitted delivery 
994  service was not timely received, and the name and address on the 
995  envelopes containing the notice. 
996         (f) If notice is perfected under paragraph (c), the trustee 
997  shall execute an affidavit in recordable form setting forth the 
998  manner in which notice was perfected and attach the affidavit to 
999  the certificate of compliance set forth in subsection (9). The 
1000  affidavit shall include all the information contained in either 
1001  paragraph (d) or paragraph (e), as applicable, shall state that 
1002  the notice was perfected by publication after diligent search 
1003  and inquiry was made for the current address for the person, 
1004  shall include a statement that notice was perfected by 
1005  publication, and shall set forth the information required by s. 
1006  49.041 in the case of a natural person, or s. 49.051 in the case 
1007  of a corporation, whichever is applicable. No other action of 
1008  the trustee is necessary to perfect notice. 
1009         (6) NOTICE OF SALE.— 
1010         (a) The notice of sale shall set forth: 
1011         1. The name and notice addresses of the obligor and any 
1012  junior interestholder. 
1013         2. The legal description of the timeshare interest. 
1014         3. The name and address of the trustee. 
1015         4. A description of the default that is the basis for the 
1016  foreclosure. 
1017         5. The official records book and page numbers where the 
1018  mortgage is recorded. 
1019         6. The amounts secured by the lien and a per diem amount to 
1020  account for further accrual of the amounts secured by the lien. 
1021         7. The date, location, and starting time of the trustee’s 
1022  sale. 
1023         8. The right of and the method by which the obligor may 
1024  cure the default or the right of any junior interestholder to 
1025  redeem its interest up to the date the trustee issues the 
1026  certificate of sale in accordance with paragraph (8)(f). 
1027         (b) The trustee shall send a copy of the notice of sale 
1028  within 3 business days following the date it is submitted for 
1029  recording, by first-class mail, postage prepaid, to the notice 
1030  addresses of the obligor and any junior interestholder. 
1031         (c) Subsequent to the date of recording of the notice of 
1032  sale, no notice is required to be given to any person claiming 
1033  an interest in the timeshare interest except as provided in this 
1034  section. The recording of the notice of sale has the same force 
1035  and effect as the filing of a lis pendens in a judicial 
1036  proceeding under s. 48.23. 
1037         (d)1. The trustee shall publish the notice of sale in a 
1038  newspaper of general circulation in the county or counties in 
1039  which the timeshare interest is located at least once a week for 
1040  two consecutive weeks before the date of the sale. The last 
1041  publication shall occur at least 5 calendar days before the 
1042  sale. 
1043         2. The trustee may group an unlimited number of notices of 
1044  sale in the same publication, provided that all of the notices 
1045  of sale pertain to the same timeshare plan. 
1046         (7) MANNER OF SALE.— 
1047         (a) The sale of a timeshare interest by the trustee in a 
1048  public auction shall be held in the county in which the 
1049  timeshare interest is located, on the date, location, and 
1050  starting time designated in the notice of sale, which shall be 
1051  after 9 a.m. but before 4 p.m. on a business day not less than 
1052  30 calendar days after the recording of the notice of sale. The 
1053  trustee’s sale may occur online at a specific website on the 
1054  Internet or in any other manner used by the clerk of the court 
1055  for a judicial foreclosure sales procedure in the county or 
1056  counties in which the timeshare interest is located. 
1057         (b) The trustee shall conduct the sale and act as the 
1058  auctioneer. 
1059         (c) The lienholder and any person other than the trustee 
1060  may bid at the sale. In lieu of participating in the sale, the 
1061  lienholder may send the trustee written bidding instructions 
1062  that the trustee shall announce as appropriate during the sale. 
1063         (d) The trustee may postpone the sale from time to time. In 
1064  such case, notice of postponement must be given by the trustee 
1065  at the date, time, and location contained in the notice of sale. 
1066  The notice of sale for the postponed sale shall be mailed under 
1067  paragraph (6)(b), recorded under paragraph (4)(f), and published 
1068  under paragraph (6)(d). The effective date of the initial notice 
1069  of sale for purposes of paragraph (4)(b) is not affected by a 
1070  postponed sale. 
1071         (e) The highest bidder of the timeshare interest shall pay 
1072  the price bid to the trustee in cash or certified funds on the 
1073  day of the sale. If the lienholder is the highest bidder, the 
1074  lienholder shall receive a credit up to the amount set forth in 
1075  the notice of sale as required under subparagraph (6)(a)6. 
1076         (f) On the date of the sale and upon receipt of the cash or 
1077  certified funds due from the highest bidder, the trustee shall 
1078  issue to the highest bidder a certificate of sale stating that a 
1079  foreclosure conforming to the requirements of this section has 
1080  occurred, including the time, location, and date of the sale, 
1081  that the timeshare interest was sold, the amounts secured by the 
1082  lien, and the amount of the highest bid. A copy of the 
1083  certificate of sale shall be mailed by certified mail, 
1084  registered mail, or permitted delivery service, return receipt 
1085  requested, to all persons entitled to receive a notice of sale 
1086  under subsection (6). 
1087         (g) Before a sale conducted under this subsection (7), a 
1088  junior interestholder may pursue adjudication by court, by 
1089  interpleader, or otherwise respecting any matter that is 
1090  disputed by the junior interestholder. 
1091         (8) EFFECT OF TRUSTEE’S SALE.— 
1092         (a) A sale conducted under subsection (7) forecloses and 
1093  terminates all interests of any person to whom notice is given 
1094  under paragraph (4)(e) or paragraph (6)(b), and of any other 
1095  person claiming by, through, or under any such person, in the 
1096  affected timeshare interest. A failure to give notice to any 
1097  person entitled to notice does not affect the validity of the 
1098  sale as to the interests of any person properly notified. A 
1099  person entitled to notice but not given notice has the rights of 
1100  a person not made a defendant in a judicial foreclosure. 
1101         (b) On the issuance of a certificate of sale under 
1102  paragraph (7)(f), all rights of redemption that have been 
1103  foreclosed under this section shall terminate. 
1104         (c) A sale conducted under subsection (7) releases the 
1105  obligor’s liability for all amounts secured by the lien. The 
1106  lienholder has no right to any deficiency judgment against the 
1107  obligor after a sale of the obligor’s timeshare interest under 
1108  this section. 
1109         (d) The issuance and recording of the trustee’s deed is 
1110  presumed valid and may be relied upon by third parties without 
1111  actual knowledge of any irregularities in the foreclosure 
1112  proceedings. If for any reason there is an irregularity in the 
1113  foreclosure proceedings, a purchaser becomes subrogated to all 
1114  the rights of the lienholder to the indebtedness that it secured 
1115  to the extent necessary to reforeclose the mortgage lien in 
1116  order to correct the irregularity, and becomes entitled to an 
1117  action de novo for the foreclosure of such mortgage lien. Any 
1118  subsequent reforeclosure required to correct an irregularity may 
1119  be conducted under this section. 
1120         (9) TRUSTEE’S CERTIFICATE OF COMPLIANCE.— 
1121         (a) Within 10 calendar days after the trustee conducts a 
1122  sale, the trustee shall execute and acknowledge a certificate of 
1123  compliance which shall: 
1124         1. Confirm delivery of the notice of default and intent to 
1125  foreclose and attach the affidavit required under subsection 
1126  (5); 
1127         2. State that the default was not cured, that the trustee 
1128  did not receive any written objection under paragraph (3)(a), 
1129  and that the timeshare interest was not redeemed under paragraph 
1130  (3)(b); 
1131         3. State that the trustee is in possession of the original 
1132  promissory note executed by the mortgagor and secured by the 
1133  mortgage lien; 
1134         4. Confirm that the notice of sale was published as 
1135  required under paragraph (6)(d) and attach an affidavit of 
1136  publication for the notice of sale; and 
1137         5. Confirm that the notice of sale was mailed under 
1138  paragraph (6)(b) together with a list of the parties to whom the 
1139  notice of sale was mailed. 
1140         (b) In furtherance of the execution and recording of the 
1141  certificate of compliance required under this subsection, the 
1142  trustee is entitled to rely upon an affidavit or certification 
1143  from the lienholder as to the facts and circumstances of default 
1144  and failure to cure the default. 
1145         (10) TRUSTEE’S DEED.— 
1146         (a) The trustee’s deed shall include the name and address 
1147  of the trustee, the name and address of the highest bidder, the 
1148  name of the former owner, a legal description of the timeshare 
1149  interest, and the name and address of the preparer of the 
1150  trustee’s deed. The trustee’s deed shall recite that the 
1151  certificate of compliance was recorded, and shall contain no 
1152  warranties of title from the trustee. The certificate of 
1153  compliance shall be attached as an exhibit to the trustee’s 
1154  deed. 
1155         (b) Ten calendar days after a sale, absent the prior filing 
1156  and service on the trustee of a judicial action to enjoin 
1157  issuance of the trustee’s deed to the timeshare interest, the 
1158  trustee shall: 
1159         1. Cancel the original promissory note executed by the 
1160  mortgagor and secured by the mortgage lien. 
1161         2. Issue a trustee’s deed to the highest bidder. 
1162         3. Record the trustee’s deed in the official records of the 
1163  county or counties in which the timeshare interest is located. 
1164         (c)1. The certificate of compliance and trustee’s deed 
1165  together are presumptive evidence of the truth of the matters 
1166  set forth in them, and no action to set aside the sale and void 
1167  the trustee’s deed may be filed or otherwise pursued against any 
1168  person acquiring the timeshare interest for value. 
1169         2. The trustee’s deed conveys to the highest bidder all 
1170  rights, title, and interest in the timeshare interest that the 
1171  former owner had, or had the power to convey together with all 
1172  rights, title, and interest that the former owner or his or her 
1173  successors in interest acquired after the execution of the 
1174  mortgage. 
1175         3. The issuance and recording of a trustee’s deed shall 
1176  have the same force and effect as the issuance and recording of 
1177  a certificate of title by the clerk of the court in a judicial 
1178  foreclosure action. 
1179         (11) DISPOSITION OF PROCEEDS OF SALE.— 
1180         (a) The trustee shall apply the proceeds of the sale as 
1181  follows: 
1182         1. To the expenses of the sale, including compensation of 
1183  the trustee. 
1184         2. To the amount owed and set forth in the notice as 
1185  required under subparagraph (6)(a)6. 
1186         3. If there are junior interestholders, the trustee may 
1187  file an action in interpleader, pay the surplus to a court of 
1188  competent jurisdiction, name the competing junior 
1189  interestholders, and ask the court to determine the proper 
1190  distribution of the surplus. In any interpleader action, the 
1191  trustee shall recover reasonable attorney’s fees and costs. 
1192         4. If there are no junior interestholders, or if all junior 
1193  interestholders have been paid, any surplus shall be paid to the 
1194  former owner. If the trustee is unable to locate the former 
1195  owner 1 year after the sale, the surplus, if any, shall be 
1196  deposited with the Chief Financial Officer under chapter 717. 
1197         (b) In disposing of the proceeds of the sale, the trustee 
1198  may rely on the information provided in the affidavit of the 
1199  lienholder under paragraph (2)(c) and, in the event of a dispute 
1200  or uncertainty over such claims, the trustee has the discretion 
1201  to submit the matter to adjudication by court, by interpleader, 
1202  or otherwise and shall recover reasonable attorney’s fees and 
1203  costs. 
1204         (12) JUDICIAL FORECLOSURE ACTIONS.—The trustee foreclosure 
1205  procedure established in this section does not impair or 
1206  otherwise affect the lienholder’s continuing right to bring a 
1207  judicial foreclosure action, in lieu of using the trustee 
1208  foreclosure procedure, with respect to any mortgage lien. 
1209         (13) ACTIONS FOR FAILURE TO FOLLOW THE TRUSTEE FORECLOSURE 
1210  PROCEDURE.—An action for actual damages for a material violation 
1211  of this section may be brought by an obligor against the 
1212  lienholder for the failure to follow the trustee foreclosure 
1213  procedure contained in this section. 
1214         Section 10. Subsections (1) and (4) of section 721.86, 
1215  Florida Statutes, are amended to read: 
1216         721.86 Miscellaneous provisions.— 
1217         (1) In the event of a conflict between the provisions of 
1218  this part and the other provisions of this chapter, chapter 702, 
1219  or other applicable law, the provisions of this part shall 
1220  prevail. The procedures in this part must be given effect in the 
1221  context of any foreclosure proceedings against timeshare 
1222  interests estates governed by this chapter, chapter 702, chapter 
1223  718, or chapter 719. 
1224         (4) In addition to assessment liens and mortgage liens 
1225  arising after the effective date of this part, except as 
1226  provided in s. 721.855(13), the provisions of this part apply to 
1227  all assessment liens and mortgage liens existing prior to the 
1228  effective date of this act regarding which a foreclosure 
1229  proceeding has not yet commenced. 
1230         Section 11. Subsection (2) of section 721.20, Florida 
1231  Statutes, is amended to read: 
1232         721.20 Licensing requirements; suspension or revocation of 
1233  license; exceptions to applicability; collection of advance fees 
1234  for listings unlawful.— 
1235         (2) Solicitors who engage only in the solicitation of 
1236  prospective purchasers and any purchaser who refers no more than 
1237  20 people to a developer or managing entity per year or who 
1238  otherwise provides testimonials on behalf of a developer or 
1239  managing entity are exempt from the provisions of chapter 475. 
1240         Section 12. This act shall take effect upon becoming a law.