Florida Senate - 2022                        COMMITTEE AMENDMENT
       Bill No. SB 1016
       
       
       
       
       
       
                                Ì184796_Î184796                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/10/2022           .                                
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       The Committee on Banking and Insurance (Burgess) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 701.04, Florida Statutes, is amended to
    6  read:
    7         701.04 Cancellation of mortgages, liens, and judgments.—
    8         (1)(a) Within 10 14 days after receipt of the written
    9  request of a mortgagor, a record title owner of the property, a
   10  fiduciary or trustee lawfully acting on behalf of a record title
   11  owner, or any other person lawfully authorized to act on behalf
   12  of a mortgagor or record title owner of the property, the
   13  mortgagee holder of a mortgage shall deliver or mortgage cause
   14  the servicer shall send or cause to be sent of the mortgage to
   15  deliver to the person making the request at a place designated
   16  in the written request an estoppel letter setting forth the
   17  unpaid balance of the loan secured by the mortgage. If the
   18  written request is made by a person other than the mortgagor,
   19  the request must include a copy of the instrument showing such
   20  person’s title in the property or other lawful authorization,
   21  and the mortgagee or mortgage servicer must notify the mortgagor
   22  of the request.
   23         (a)If the mortgagor, or any person lawfully authorized to
   24  act on behalf of the mortgagor, makes the request, the estoppel
   25  letter must include an itemization of the principal, interest,
   26  and any other charges properly due under or secured by the
   27  mortgage and interest on a per-day basis for the unpaid balance.
   28         (b) If a record title owner of the property, or any person
   29  lawfully authorized to act on behalf of a mortgagor or record
   30  title owner of the property, makes the request:
   31         1.The request must include a copy of the instrument
   32  showing title in the property or lawful authorization.
   33         2. The estoppel letter may include the itemization of
   34  information required under paragraph (a), but must at a minimum
   35  include:
   36         1. The total unpaid balance of the loan due under or
   37  secured by the mortgage as of the date specified in the estoppel
   38  letter, including an itemization of the principal, interest, and
   39  any other charges comprising the unpaid balance; and
   40         2.Interest accruing on a per-day basis for the unpaid
   41  balance, if applicable.
   42         (c)1.Except for mortgages for which a notice of lis
   43  pendens in a foreclosure action or a suggestion of bankruptcy
   44  has been properly filed and recorded, the mortgagee or mortgage
   45  servicer may not qualify, reserve the right to change, or
   46  condition or disclaim the reliance of others on the information
   47  provided in an estoppel letter under paragraph (b), and any
   48  attempt to do so is void and unenforceable. However, if the
   49  mortgagee or mortgage servicer determines that any of the
   50  information provided in the estoppel letter under paragraph (b)
   51  was inaccurate, the mortgagee or mortgage servicer may send a
   52  corrected estoppel letter to the person who requested the
   53  estoppel letter.
   54         2.If the person who requested the original estoppel letter
   55  under subparagraph (f)1. receives a corrected estoppel letter by
   56  3 p.m. in such person’s time zone at least 1 business day before
   57  a payment is issued in reliance on the previous estoppel letter,
   58  the corrected estoppel letter supersedes all prior estoppel
   59  letters.
   60         3.If any of the information provided in the estoppel
   61  letter under paragraph (b) was inaccurate, but the person who
   62  requested the estoppel letter did not timely receive a corrected
   63  estoppel letter as provided in subparagraph 2., the mortgagee or
   64  mortgage servicer may not deny the accuracy of such information
   65  as against any person who relied on it. This subparagraph does
   66  not affect the right of a mortgagee to recover any sum that it
   67  did not include in an estoppel letter from any person liable for
   68  payment of the loan or other obligations secured by the
   69  mortgage, nor does it limit any claim or defense to recovery
   70  that such person may have at law or in equity on a per-day
   71  basis.
   72         (d)3. The mortgagee or mortgage servicer of the mortgagee
   73  acting in accordance with a request in substantial compliance
   74  with this subsection paragraph is expressly discharged from any
   75  obligation or liability to any person on account of the release
   76  of the requested information, other than the obligation to
   77  comply with the terms of the estoppel letter.
   78         (e)If a payment is received at the location and in the
   79  manner specified by the mortgagee or mortgage servicer, the
   80  mortgagee or mortgage servicer must accept and may not return
   81  any payment received in reliance on an estoppel letter and must
   82  promptly apply such payment to the unpaid balance of the loan
   83  properly due under or secured by the mortgage.
   84         (f)1.A written request for an estoppel letter under
   85  paragraph (a) must be sent to the mortgagee or mortgage servicer
   86  by first-class mail, postage prepaid; by common carrier delivery
   87  service; or by e-mail, facsimile, or other electronic means at
   88  the address made available by the mortgagee or mortgage servicer
   89  for such purpose or through an automated system provided by the
   90  mortgagee or mortgage servicer for requesting an estoppel
   91  letter. The written request is considered received by the
   92  mortgagee or mortgage servicer:
   93         a.Five business days after the request sent by first-class
   94  mail is deposited with the United States Postal Service;
   95         b.The day the request is delivered by a common carrier
   96  delivery service; or
   97         c.The day the request is sent by e-mail, facsimile, or
   98  other electronic means or through an automated system provided
   99  by the mortgagee or mortgage servicer for requesting an estoppel
  100  letter.
  101  
  102  If any of the days in sub-subparagraph a., sub-subparagraph b.,
  103  or sub-subparagraph c. falls on a Saturday, Sunday, or legal
  104  holiday under the laws of this state or the United States, the
  105  request for an estoppel letter is considered timely received by
  106  the mortgagee or mortgage servicer on the next business day.
  107         2.The mortgagee or mortgage servicer must send an estoppel
  108  letter by first-class mail; by common carrier delivery service;
  109  or by e-mail, facsimile, or other electronic means, as directed
  110  in the written request, or through an automated system provided
  111  by the mortgagee or mortgage servicer for this purpose. However,
  112  the mortgagee or mortgage servicer is not required to pay for a
  113  common carrier delivery service. If the 10-day period after a
  114  written request is received by the mortgagee or mortgage
  115  servicer ends on a Saturday, Sunday, or legal holiday under the
  116  laws of this state or the United States, the estoppel letter is
  117  considered timely if it is sent by the close of business on the
  118  next business day.
  119         (g)(c)Notwithstanding s. 655.059, a mortgagee or mortgage
  120  servicer mortgage holder may provide the financial information
  121  required under this subsection to a person authorized under this
  122  subsection to request the financial information notwithstanding
  123  s. 655.059.
  124         (2)(a)Within 60 days after the unpaid balance of a loan
  125  secured by a mortgage has been fully paid or paid pursuant to an
  126  estoppel letter under subsection (1), whichever is earlier, the
  127  mortgagee or mortgage servicer shall execute in writing an
  128  instrument acknowledging release of the mortgage; have the
  129  instrument acknowledged, or proven, and send it or cause it to
  130  be sent for recording in the official records of the proper
  131  county; and send or cause to be sent the recorded release to the
  132  mortgagor or record title owner of the property. The prevailing
  133  party in a civil action brought against the mortgagee or
  134  mortgage servicer to enforce the requirements of this paragraph
  135  is entitled to reasonable attorney fees and costs.
  136         (b)The recorded release of the mortgage does not relieve
  137  the mortgagor, or the mortgagor’s successors or assigns, from
  138  any personal liability on the loan or other obligations
  139  previously secured by the mortgage.
  140         (3)(2)Within 60 days after the unpaid balance Whenever the
  141  amount of money due on a any mortgage, lien, or judgment has
  142  been fully paid to the person or party entitled to the payment
  143  thereof, the mortgagee, creditor, or assignee, or the attorney
  144  of record in the case of a judgment, to whom the payment was
  145  made, shall execute in writing an instrument acknowledging
  146  satisfaction of the mortgage, lien, or judgment; and have the
  147  instrument acknowledged, or proven, and duly entered in the
  148  official records of the proper county; and. Within 60 days after
  149  the date of receipt of the full payment of the mortgage, lien,
  150  or judgment, the person required to acknowledge satisfaction of
  151  the mortgage, lien, or judgment shall send or cause to be sent
  152  the recorded satisfaction to the person who has made the full
  153  payment. In the case of a civil action arising out of this
  154  section, The prevailing party in a civil action brought against
  155  the creditor or assignee, or the attorney of record in the case
  156  of a judgment, to enforce the requirements of this subsection is
  157  entitled to reasonable attorney fees and costs.
  158         (4)(3)When Whenever a writ of execution has been issued,
  159  docketed, and indexed with a sheriff and the judgment upon which
  160  it was issued has been fully paid, it is the responsibility of
  161  the person party receiving payment to request, in writing,
  162  addressed to the sheriff, return of the writ of execution as
  163  fully satisfied.
  164         Section 2. Paragraph (a) of subsection (1) and subsection
  165  (2) of section 701.041, Florida Statutes, are amended to read:
  166         701.041 Title insurer; mortgage release certificate.—
  167         (1) DEFINITIONS.—For purposes of this section:
  168         (a) “Estoppel letter” means a statement containing, at a
  169  minimum, the information required in s. 701.04(1)(b) of the
  170  amount of:
  171         1.The unpaid balance of a loan secured by a mortgage,
  172  including principal, interest, and any other charges properly
  173  due under or secured by the mortgage.
  174         2.Interest on a per-day basis for the unpaid balance.
  175         (2) CERTIFICATE OF RELEASE.—An officer or duly appointed
  176  agent of a title insurer may, on behalf of a mortgagor or a
  177  person who acquired from the mortgagor title to all or a part of
  178  the property described in a mortgage, execute a certificate of
  179  release that complies with the requirements of this section and
  180  record the certificate of release in the real property records
  181  of each county in which the mortgage is recorded if a
  182  satisfaction or release of the mortgage has not been executed
  183  and recorded after the date payment in full of the loan properly
  184  due under or secured by the mortgage was made in accordance with
  185  an estoppel letter a payoff statement furnished by the mortgagee
  186  or the mortgage servicer.
  187         Section 3. The Legislature finds that the timeliness and
  188  accuracy of an estoppel letter is critical because the parties
  189  to a real estate transaction must rely on the estoppel letter to
  190  establish the loan payoff amount necessary to release the
  191  mortgage, which in turn will allow the owner to confer clean
  192  title to a buyer or to refinance the property. The Legislature
  193  further finds that estoppel letters increasingly contain
  194  conditional language disclaiming the ability of an owner to rely
  195  on the stated loan payoff amounts, extending even to the return
  196  of such payments submitted by owners, creating unnecessary
  197  delays in the efficient operation of this state’s real estate
  198  market, which is a vital economic contributor to this state, and
  199  imposing needless costs and burdens on property owners and
  200  buyers. In addition, the Legislature finds that real estate
  201  lending, mortgages, real estate transactions, and estoppel
  202  letters are extensively regulated under both Florida and federal
  203  law. The Legislature finds and determines that this act makes
  204  changes to state law that appropriately balance the parties’
  205  interests, are reasonable and necessary to serve and achieve an
  206  important state interest, are necessary for the prosperity and
  207  welfare of the state and its property owners and inhabitants,
  208  and must be applied to existing mortgages in order to provide
  209  effective relief.
  210         Section 4. This act shall take effect October 1, 2022, and
  211  applies to all mortgages existing as of that date and entered
  212  into on or after that date, as well as to all loans secured by
  213  such mortgages.
  214  
  215  ================= T I T L E  A M E N D M E N T ================
  216  And the title is amended as follows:
  217         Delete everything before the enacting clause
  218  and insert:
  219                        A bill to be entitled                      
  220         An act relating to mortgage payoff letters; amending
  221         s. 701.04, F.S.; revising the timeframe within which a
  222         mortgagee or mortgage servicer must send or cause to
  223         be sent an estoppel letter containing specified
  224         information; revising the circumstances under which a
  225         copy of the instrument showing title in the property
  226         or other lawful authorization must be included in a
  227         request for an estoppel letter; requiring notice to
  228         the mortgagor of a request for an estoppel letter
  229         under certain circumstances; revising requirements for
  230         an estoppel letter; prohibiting certain actions by the
  231         mortgagee or mortgage servicer; authorizing the
  232         mortgagee or mortgage servicer to send a corrected
  233         estoppel letter under certain circumstances; providing
  234         that a corrected estoppel letter supersedes any
  235         previous estoppel letter under certain circumstances;
  236         prohibiting the mortgagee or mortgage servicer from
  237         denying the accuracy of certain information provided
  238         in an estoppel letter under certain circumstances;
  239         providing construction; prohibiting payments received
  240         pursuant to an estoppel letter from being returned and
  241         requiring such payments to be promptly applied to any
  242         unpaid balance of the loan properly due under or
  243         secured by a mortgage; providing methods for sending a
  244         written request for an estoppel letter and for sending
  245         an estoppel letter; providing that the mortgagee or
  246         mortgage servicer is not required to pay for a common
  247         carrier delivery service; requiring the mortgagee or
  248         mortgage servicer to take certain actions within a
  249         specified time after the unpaid balance of a loan
  250         properly secured by a mortgage has been fully paid or
  251         paid pursuant to an estoppel letter; authorizing
  252         reasonable attorney fees and costs; providing that
  253         certain persons may still be personally liable after
  254         the recording of a release of a mortgage; amending s.
  255         701.041, F.S.; revising the definition of the term
  256         “estoppel letter”; conforming provisions to changes
  257         made by the act; providing legislative findings;
  258         providing for retroactive applicability; providing an
  259         effective date.