PART III

FORECLOSURE OF LIENS ON TIMESHARE ESTATES

721.80  Short title.

721.81  Legislative purpose.

721.82  Definitions.

721.83  Consolidation of foreclosure actions.

721.84  Appointment of a registered agent; duties.

721.85  Service to notice address or on registered agent.

721.86  Miscellaneous provisions

721.80  Short title.--This part may be cited as the "Timeshare Lien Foreclosure Act."

History.--s. 13, ch. 98-36.

721.81  Legislative purpose.--The purposes of this part are to:

(1)  Recognize that timeshare estates are parcels of real property used for vacation experience rather than for homestead purposes and that there are numerous timeshare estates in the state.

(2)  Recognize that the economic health and efficient operation of the vacation ownership industry are in part dependent upon the availability of an efficient and economical process for foreclosure.

(3)  Recognize the need to assist owners' associations and mortgagees by simplifying and expediting the process of foreclosure of assessment liens and mortgage liens against timeshare estates.

(4)  Reduce court congestion and the cost to taxpayers by establishing streamlined procedures for the foreclosure of assessment liens and mortgage liens against timeshare estates.

History.--s. 13, ch. 98-36; s. 42, ch. 2000-302.

721.82  Definitions.--As used in this part, the term:

(1)  "Assessment lien" means:

(a)  A lien for delinquent assessments as provided in ss. 721.16, 718.116, and 719.108 as to timeshare condominiums; or

(b)  A lien for unpaid taxes and special assessments as provided in s. 192.037(8).

(2)  "Junior interestholder" means any person who has a lien or interest of record against a timeshare estate in the county in which the timeshare estate is located, which is inferior to the mortgage lien or assessment lien being foreclosed under this part.

(3)  "Lienholder" means a holder of an assessment lien or a holder of a mortgage lien, as applicable. A receiver appointed under s. 721.26 is a lienholder for purposes of this part.

(4)  "Mortgage" has the same meaning set forth in s. 697.01.

(5)  "Mortgage lien" means a security interest in a timeshare estate created by a mortgage encumbering the timeshare estate.

(6)  "Mortgagee" means a person holding a mortgage lien.

(7)  "Mortgagor" means a person granting a mortgage lien or a person who has assumed the obligation secured by a mortgage lien.

(8)  "Notice address" means:

(a)  As to an assessment lien, the address of the current owner of a timeshare estate as reflected by the books and records of the timeshare plan under ss. 721.13(4) and 721.15(7).

(b)  As to a mortgage lien:

1.  The address of the mortgagor as set forth in the mortgage, the promissory note or a separate document executed by the mortgagor at the time the mortgage lien was created, or the most current address of the mortgagor according to the records of the mortgagee; and

2.  If the current owner of the timeshare estate is different from the mortgagor, the address of the current owner of the timeshare estate as reflected by the books and records of the mortgagee.

(c)  As to a junior interestholder, the address as set forth in the recorded instrument creating the junior interest or lien, or any recorded supplement thereto changing the address, or written notification by the junior interestholder to the foreclosing lienholder of such change in address.

(9)  "Obligor" means the mortgagor, the person subject to an assessment lien, or the record owner of the timeshare estate.

(10)  "Registered agent" means an agent duly appointed by the obligor under s. 721.84 for the purpose of accepting all notices and service of process under this part. A registered agent may be an individual resident in this state whose business office qualifies as a registered office, or a domestic or foreign corporation or a not-for-profit corporation as defined in chapter 617 authorized to transact business or to conduct its affairs in this state, whose business office qualifies as a registered office. A registered agent for any obligor may not be the lienholder or the attorney for the lienholder.

(11)  "Registered office" means the street address of the business office of the registered agent appointed under s. 721.84, located in this state.

History.--s. 13, ch. 98-36; s. 43, ch. 2000-302.

721.83  Consolidation of foreclosure actions.--

(1)  A complaint in a foreclosure proceeding involving timeshare estates may join in the same action multiple defendant obligors and junior interestholders of separate timeshare estates, provided:

(a)  The foreclosure proceeding involves a single timeshare property.

(b)  The foreclosure proceeding is filed by a single plaintiff.

(c)  The default and remedy provisions in the written instruments on which the foreclosure proceeding is based are substantially the same for each defendant.

(d)  The nature of the defaults alleged is the same for each defendant.

(e)  No more than 15 timeshare estates, without regard to the number of defendants, are joined within the same consolidated foreclosure action.

(2)  In any foreclosure proceeding involving multiple defendants filed under subsection (1), the court shall sever for separate trial any count of the complaint in which a defense or counterclaim is timely raised by a defendant.

(3)  A consolidated timeshare foreclosure action shall be considered a single action, suit, or proceeding for the payment of filing fees and service charges pursuant to general law. In addition to the payment of such filing fees and service charges, an additional filing fee of up to $5 for each timeshare estate joined in that action shall be paid to the clerk of court.

History.--s. 13, ch. 98-36; s. 112, ch. 2003-402; s. 74, ch. 2004-265.

721.84  Appointment of a registered agent; duties.--

(1)  Any obligor may appoint a registered agent on whom notices and process may be served under s. 721.85. The statement of appointment must be in writing signed by the obligor and must:

(a)  Provide the name of the registered agent and the street address for the registered office;

(b)  Identify the obligor for whom the registered agent serves;

(c)  Indicate the purpose of the appointment;

(d)  Specify the instruments out of which the liens arise;

(e)  Designate the address the obligor wishes to use to receive mail from the registered agent; and

(f)  Contain the obligor's undertaking to inform the registered agent of any change in such designated address.

The statement of appointment must also provide for the registered agent's acceptance of the appointment, which must confirm that the registered agent is familiar with and accepts the obligations of that position as set forth in this section.

(2)  An obligor may change but not revoke its appointment of registered agent and registered office under this chapter by executing a written statement of change that identifies the former registered agent and registered address and also satisfies all of the requirements of subsection (1). A copy of the statement of change must be promptly provided to the former registered agent and the affected lienholder and becomes effective upon receipt by the affected lienholder.

(3)  A registered agent appointed under subsection (1) or a successor registered agent appointed under subsection (2) shall provide the lienholder with a copy of the obligor's appointment and the executed acceptance of the appointment by the registered agent promptly following the registered agent's receipt of the statement of appointment or statement of change executed by the obligor. The statement of appointment or statement of change becomes effective upon receipt by the lienholder of the fully executed form. A successor registered agent shall promptly provide a copy of a statement of change to the former registered agent.

(4)  A registered agent may change its business name or the street address of the registered office for any obligor for which it serves as registered agent by:

(a)  Notifying all obligors of the specific change in writing at the address such obligor designated for receipt of mail from the registered agent; and

(b)  Delivering to each respective lienholder a statement that updates the information on the original appointment or change of appointment, identifies the names of all affected obligors, and states that each such affected obligor has been notified of the change.

(5)  A registered agent may resign his or her agency appointment for any obligor for which he or she serves as registered agent, provided that:

(a)  The resigning registered agent executes a written statement of resignation that identifies himself or herself and the street address of his or her registered office, and identifies the obligors affected by his or her resignation;

(b)  A successor registered agent is appointed and such successor registered agent executes an acceptance of appointment as successor registered agent and satisfies all of the requirements of subsection (1). The resigning registered agent may designate the successor registered agent; however, if the resigning registered agent fails to designate a successor registered agent or the designated successor registered agent fails to accept, the successor registered agent for the affected obligors may be designated by the mortgagee as to the mortgage lien and by the owners' association as to the assessment lien; and

(c)  Copies of the statement of resignation and acceptance of appointment as successor registered agent are promptly mailed to the affected obligors at the obligors' last designated address shown on the records of the resigning registered agent and to the affected lienholders. The agency and registered office of the resigning registered agent are terminated and the agency and registered office of the successor registered agent are effective as of the 10th day after the date on which the statement of resignation and acceptance of appointment as successor registered agent are received by the lienholder, unless a longer period is provided in the statement of resignation and acceptance of appointment as successor registered agent.

(6)  Unless otherwise provided in this section, a registered agent in receipt of any notice or other document addressed from the lienholder to the obligor in care of the registered agent at the registered office must mail, by first class mail if the obligor's address is within the United States, and by international air mail if the obligor's address is outside the United States, with postage fees prepaid, such notice or documents to the obligor at the obligor's last designated address within 5 days after receipt.

(7)  In the absence of a written agreement to the contrary, a registered agent is not liable for the failure to give notice to the obligor of the receipt of any document under this part if, such registered agent has complied in a timely manner with the procedures and duties in this section.

History.--s. 13, ch. 98-36; s. 77, ch. 99-3; s. 55, ch. 99-7; s. 44, ch. 2000-302; s. 30, ch. 2004-279.

721.85  Service to notice address or on registered agent.--

(1)  Service of process for a foreclosure proceeding involving a timeshare estate may be made by any means recognized by law. In addition, substituted service on a party who has appointed a registered agent under s. 721.84 may be made on such registered agent at the registered office. Also, when using s. 48.194 where in rem or quasi in rem relief only is sought, such service of process provisions are modified in connection with a foreclosure proceeding against a timeshare estate to provide that:

(a)  Such service of process may be made on any person whether the person is located inside or outside this state, by certified or registered mail, addressed to the person to be served at the notice address, or on the party's registered agent duly appointed under s. 721.84, at the registered office; and

(b)  Service shall be considered obtained upon the signing of the return receipt by any person at the notice address, or by the registered agent.

(2)  The current owner and the mortgagor of a timeshare estate must promptly notify the owners' association and the mortgagee of any change of address.

History.--s. 13, ch. 98-36; s. 45, ch. 2000-302.

721.86  Miscellaneous provisions.--

(1)  The procedures in this part must be given effect in the context of any foreclosure proceedings against timeshare estates governed by this chapter, chapter 702, chapter 718, or chapter 719.

(2)  If any provision of this part, or the application thereof to any person or circumstances, is held invalid, such invalidity does not affect other provisions or applications of this part which can be given effect without the invalid provision or application. To this end, the provisions of this part are declared severable.

(3)  The division has no authority to regulate, enforce, or ensure compliance with any provision of this part.

(4)  In addition to assessment liens and mortgage liens arising after the effective date of this part, the provisions of this part apply to all assessment liens and mortgage liens existing prior to the effective date of this act regarding which a foreclosure proceeding has not yet commenced.

History.--s. 13, ch. 98-36; s. 46, ch. 2000-302.

721.96  Purpose.

721.97  Timeshare commissioner of deeds.

721.98  Powers of the division.

721.96  Purpose.--The purpose of this part is to provide for the appointment of commissioners of deeds to take acknowledgments, proofs of execution, and oaths outside the United States in connection with the execution of any deed, mortgage, deed of trust, contract, power of attorney, or any other agreement, instrument or writing concerning, relating to, or to be used or recorded in connection with a timeshare estate, personal property timeshare interest, timeshare license, any property subject to a timeshare plan, or the operation of a timeshare plan located within this state.

History.--s. 14, ch. 98-36; s. 31, ch. 2004-279.

721.97  Timeshare commissioner of deeds.--

(1)  The Governor may appoint commissioners of deeds to take acknowledgments, proofs of execution, or oaths in any foreign country, in international waters, or in any possession, territory, or commonwealth of the United States outside the 50 states. The term of office is 4 years. Commissioners of deeds shall have authority to take acknowledgments, proofs of execution, and oaths in connection with the execution of any deed, mortgage, deed of trust, contract, power of attorney, or any other writing to be used or recorded in connection with a timeshare estate, personal property timeshare interest, timeshare license, any property subject to a timeshare plan, or the operation of a timeshare plan located within this state; provided such instrument or writing is executed outside the United States. Such acknowledgments, proofs of execution, and oaths must be taken or made in the manner directed by the laws of this state, including but not limited to s. 117.05(4), (5)(a), and (6), Florida Statutes 1997, and certified by a commissioner of deeds. The certification must be endorsed on or annexed to the instrument or writing aforesaid and has the same effect as if made or taken by a notary public licensed in this state.

(2)  Any person seeking to be appointed a commissioner of deeds must take and subscribe to an oath, before a notary public in this state or any other state, or a person authorized to take oaths in another country, to well and faithfully execute and perform the duties of such commissioner of deeds. The oath must be filed with the Department of State prior to the person being commissioned.

(3)  Official acts performed by any previously appointed commissioners of deeds, between May 30, 1997, and the effective date of this part, are declared valid as though such official acts were performed in accordance with and under the authority of this part.

History.--s. 14, ch. 98-36; s. 18, ch. 98-322; s. 32, ch. 2004-279; s. 13, ch. 2007-75.

721.98  Powers of the division.--The division has no duty or authority to regulate, enforce, or ensure compliance with any provision of this part.

History.--s. 14, ch. 98-36.