Florida Senate - 2012                                    SB 1672
       
       
       
       By Senator Fasano
       
       
       
       
       11-00563-12                                           20121672__
    1                        A bill to be entitled                      
    2         An act relating to mortgages; amending s. 697.02,
    3         F.S.; providing that a mortgage instrument recorded in
    4         the name of a nominee does not provide sufficient
    5         notice of the existence of a lien; amending s. 701.02,
    6         F.S.; defining terms; providing that the use of the
    7         term “nominee” in a mortgage instrument does not
    8         provide sufficient notice of the actual economic
    9         ownership of interests in the real property; requiring
   10         that an assignment of mortgage be recorded upon each
   11         transfer of the beneficial ownership of a mortgage;
   12         conforming cross-references; amending s. 702.01, F.S.;
   13         requiring that an assignment of a mortgage be recorded
   14         upon each transfer of beneficial ownership of the
   15         mortgage before a foreclosure action may be initiated;
   16         providing that the use of the term “nominee” in a
   17         mortgage instrument does not provide sufficient notice
   18         of the actual economic ownership of interests in the
   19         real property; providing an effective date.
   20  
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Section 697.02, Florida Statutes, is amended to
   24  read:
   25         697.02 Nature of a mortgage.—A mortgage shall be held to be
   26  a specific lien on the property therein described, and not a
   27  conveyance of the legal title or of the right of possession.
   28  However, a mortgage instrument recorded in the name of a nominee
   29  does not provide sufficient notice of the existence of a lien.
   30         Section 2. Section 701.02, Florida Statutes, is amended to
   31  read:
   32         701.02 Assignment not effectual against creditors unless
   33  recorded and indicated in title of document; applicability.—
   34         (1) As used in this section, the term:
   35         (a) “Assignment of mortgage” includes, but is not limited
   36  to, the transfer of a mortgage to all subsequent mortgage
   37  holders and lenders and all other financial subcontractors and
   38  investors.
   39         (b) “Mortgagee” includes the lender or the entity entitled
   40  to receive payments on the loan. The term does not include a
   41  person designated as a “nominee” in a mortgage instrument.
   42         (2)(1) An assignment of a mortgage upon real property or of
   43  any interest therein, is not good or effectual in law or equity,
   44  against creditors or subsequent purchasers, for a valuable
   45  consideration, and without notice, unless the assignment is
   46  contained in a document that, in its title, indicates an
   47  assignment of mortgage and is recorded according to law. Upon
   48  each transfer of the beneficial ownership of a mortgage, an
   49  assignment of mortgage must be in the official records of the
   50  county in which the mortgaged property is located.
   51         (3)(2) This section also applies to assignments of
   52  mortgages resulting from transfers of all or any part or parts
   53  of the debt, note or notes secured by mortgage, and none of same
   54  is effectual in law or in equity against creditors or subsequent
   55  purchasers for a valuable consideration without notice, unless a
   56  duly executed assignment be recorded according to law.
   57         (4)(3) Any assignment of a mortgage, duly executed and
   58  recorded according to law, purporting to assign the principal of
   59  the mortgage debt or the unpaid balance of such principal,
   60  shall, as against subsequent purchasers and creditors for value
   61  and without notice, be held and deemed to assign any and all
   62  accrued and unpaid interest secured by such mortgage, unless
   63  such interest is specifically and affirmatively reserved in such
   64  an assignment by the assignor, and a reservation of such
   65  interest or any part thereof may not be implied.
   66         (5)(4) Notwithstanding subsections (2), (3), and (4) (1),
   67  (2), and (3) governing the assignment of mortgages, chapters
   68  670-680 of the Uniform Commercial Code of this state govern the
   69  attachment and perfection of a security interest in a mortgage
   70  upon real property and in a promissory note or other right to
   71  payment or performance secured by that mortgage. The assignment
   72  of such a mortgage need not be recorded under this section for
   73  purposes of attachment or perfection of a security interest in
   74  the mortgage under the Uniform Commercial Code.
   75         (6)(5) Notwithstanding subsection (5) (4), a creditor or
   76  subsequent purchaser of real property or any interest therein,
   77  for valuable consideration and without notice, is entitled to
   78  rely on a full or partial release, discharge, consent, joinder,
   79  subordination, satisfaction, or assignment of a mortgage upon
   80  such property made by the mortgagee of record, without regard to
   81  the filing of any Uniform Commercial Code financing statement
   82  that purports to perfect a security interest in the mortgage or
   83  in a promissory note or other right to payment or performance
   84  secured by the mortgage, and the filing of any such financing
   85  statement does not constitute notice for the purposes of this
   86  section. For the purposes of this subsection, the term
   87  “mortgagee of record” means the person named as the mortgagee in
   88  the recorded mortgage or, if an assignment of the mortgage has
   89  been recorded in accordance with this section, the term
   90  “mortgagee of record” means the assignee named in the recorded
   91  assignment.
   92         Section 3. Section 702.01, Florida Statutes, is amended to
   93  read:
   94         702.01 Equity.—All mortgages shall be foreclosed in equity.
   95  In a mortgage foreclosure action, the court shall sever for
   96  separate trial all counterclaims against the foreclosing
   97  mortgagee. The foreclosure claim shall, if tried, be tried to
   98  the court without a jury. An assignment of a mortgage must be
   99  recorded in the official records of the county in which the real
  100  property is located upon each transfer of beneficial ownership
  101  of the mortgage before a foreclosure action may be initiated.
  102  The use of the term “nominee” in a mortgage instrument does not
  103  provide sufficient notice of the actual economic ownership of
  104  interests in the real property.
  105         Section 4. This act shall take effect July 1, 2012.