September 26, 2020
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       Florida Senate - 2010                                    SB 1688
       
       
       
       By Senator Joyner
       
       
       
       
       18-01615-10                                           20101688__
    1                        A bill to be entitled                      
    2         An act relating to judicial and execution sales of
    3         property; creating s. 702.55, F.S.; requiring a
    4         lienholder to serve a certain notice on a homestead
    5         owner before a foreclosure sale; specifying that the
    6         notice must inform the owner that bankruptcy is a
    7         potential alternative to foreclosure and warn against
    8         foreclosure “saving” schemes; providing for an
    9         affirmative defense from foreclosure for failure to
   10         provide notice; amending s. 56.021, F.S., relating to
   11         the required service of notice of potential relief
   12         through bankruptcy; conforming provisions to changes
   13         made by the act; providing for application; providing
   14         an effective date.
   15  
   16  Be It Enacted by the Legislature of the State of Florida:
   17  
   18         Section 1. Section 702.55, Florida Statutes, is created to
   19  read:
   20         702.55 Notice of bankruptcy alternative to judicial or
   21  sheriff’s sale.—
   22         (1) In any foreclosure of a mortgage lien or other lien
   23  against homestead property owned by a natural person or persons,
   24  the mortgagee or lienholder must serve a separate notice to the
   25  natural person property owner or owners containing the following
   26  statement in conspicuous type:
   27  
   28              NOTICE REGARDING REQUESTED PROPERTY SALE             
   29         If you are an individual owner of property that may be
   30         affected by this action, and if any portion of the
   31         property is your home or personal property, please
   32         read the following notice carefully: A judicial or
   33         sheriff’s sale of your property that is subject to the
   34         lien of the plaintiff in this case may occur shortly.
   35         UNDER CERTAIN CIRCUMSTANCES, the United States
   36         Bankruptcy Code may provide a property owner with the
   37         ability to retain the liened property and reorganize
   38         the claimed indebtedness if a bankruptcy petition is
   39         filed before the judicial or sheriff’s sale occurs. In
   40         most cases, an individual will be required to complete
   41         a credit counseling briefing before being eligible to
   42         file a bankruptcy case.
   43  
   44         Further, a mortgage foreclosure is a complex process.
   45         People may approach you about “saving” your home. YOU
   46         SHOULD BE CAREFUL ABOUT ANY SUCH PROMISES. There are
   47         government agencies and nonprofit organizations you
   48         may contact for helpful information about the
   49         foreclosure process. For the name and telephone number
   50         of an organization near you, please call the United
   51         States Department of Housing and Urban Development.
   52  
   53         (2) The notice required by this section must be served
   54  together with the original process and in the manner permitted
   55  for service of the complaint, and, if so served, the fact of
   56  service of the notice must be noted on the summons and the
   57  return of service so that the clerk of the court and the
   58  judicial officer may ascertain whether the notice has been
   59  served. In the case of service of process by publication, the
   60  notice need not be separate if the published service of process
   61  includes the statement set forth in subsection (1), and such
   62  publication of the statement constitutes compliance with this
   63  section. If the foreclosing mortgagee or lienholder fails to
   64  serve the notice required by this section with the original
   65  process or with the original publication of service of process,
   66  the mortgagee or lienholder may cure such failure by
   67  subsequently serving the notice in the manner specified in this
   68  subsection at any time up to 5 business days before the natural
   69  person property owner’s answer is due to be served. The notice
   70  need not be served on any defendant other than the natural
   71  person or persons who are the record owner of the property at
   72  the time the notice of lis pendens is recorded.
   73         (3) The failure of the mortgagee or lienholder to serve the
   74  notice required by this section constitutes an affirmative
   75  defense available to a natural person property owner in an
   76  action to foreclose the mortgage or other lien against homestead
   77  property, and a natural person property owner who raises that
   78  defense has the burden of proving that the property was the
   79  homestead of such property owner on the date that the
   80  foreclosure action was filed. If the defense is timely raised
   81  and proved by the natural person property owner, an in personam
   82  or deficiency judgment may not be entered against the property
   83  owner, but an in rem final judgment of foreclosure may be
   84  entered against the property owner. If the affirmative defense
   85  is not timely raised and proved, the failure of the mortgagee or
   86  lienholder to timely serve the notice required by this section
   87  is not a bar to the entry of an in personam or deficiency
   88  judgment.
   89         (4) Failure to serve the notice required by this section
   90  does not affect the validity or finality of the judgment of
   91  foreclosure, the validity of title or marketability of the real
   92  property subject to the judicial sale, or the validity of title
   93  conveyed by the judicial sale.
   94         Section 2. Section 56.021, Florida Statutes, is amended to
   95  read:
   96         56.021 Executions; issuance and return, alias, etc.—When
   97  issued, an execution is valid and effective during the life of
   98  the judgment or decree on which it is issued. When fully paid,
   99  the officer executing it shall make his or her return and file
  100  it in the court that which issued the execution. If the
  101  execution is lost or destroyed, the party entitled thereto may
  102  have an alias, pluries, or other copies on making proof of such
  103  loss or destruction by affidavit and filing it in the court
  104  issuing the execution. However, if the judgment debtor or
  105  property owner is a natural person, execution may not be issued
  106  before the judgment creditor has filed and served a notice upon
  107  such judgment debtor or property owner in the same form as
  108  required by s. 702.55.
  109         Section 3. This act shall take effect July 1, 2010, and
  110  applies only to foreclosure proceedings commenced, and to writs
  111  of execution issued, on or after that date.

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