ENROLLED
       2023 Legislature                                          SB 708
       
       
       
       
       
       
                                                              2023708er
    1  
    2         An act relating to estoppel letters; amending s.
    3         701.04, F.S.; revising the timeframe within which a
    4         mortgagee or mortgage servicer must send or cause to
    5         be sent an estoppel letter containing specified
    6         information; revising the circumstances under which a
    7         copy of the instrument showing title in the property
    8         or other lawful authorization must be included in a
    9         request for an estoppel letter; requiring notice to
   10         the mortgagor of a request for an estoppel letter
   11         under certain circumstances; revising requirements for
   12         an estoppel letter; prohibiting certain actions by the
   13         mortgagee or mortgage servicer; authorizing the
   14         mortgagee or mortgage servicer to send a corrected
   15         estoppel letter under certain circumstances; requiring
   16         a mortgagee or mortgage servicer to provide a copy of
   17         a corrected estoppel letter to a mortgagor under
   18         certain circumstances; providing that a corrected
   19         estoppel letter supersedes any previous estoppel
   20         letter under certain circumstances; prohibiting the
   21         mortgagee or mortgage servicer from denying the
   22         accuracy of certain information provided in an
   23         estoppel letter under certain circumstances; providing
   24         construction; prohibiting payments received pursuant
   25         to an estoppel letter from being returned and
   26         requiring such payments to be promptly applied to any
   27         unpaid balance of the loan properly due under or
   28         secured by a mortgage; providing methods for sending a
   29         written request for an estoppel letter and for sending
   30         an estoppel letter; providing that the mortgagee or
   31         mortgage servicer is not required to pay for a common
   32         carrier delivery service; requiring the mortgagee or
   33         mortgage servicer to take certain actions within a
   34         specified time after the unpaid balance of a loan
   35         properly secured by a mortgage has been fully paid or
   36         paid pursuant to an estoppel letter; authorizing
   37         reasonable attorney fees and costs for specified
   38         parties in certain civil actions; providing that
   39         certain persons may still be personally liable for a
   40         loan or other obligation after the recording of a
   41         release of a mortgage; conforming provisions to
   42         changes made by the act; amending s. 701.041, F.S.;
   43         revising the definition of the term “estoppel letter”;
   44         conforming provisions to changes made by the act;
   45         providing legislative findings; providing for
   46         retroactive applicability; providing an effective
   47         date.
   48          
   49  Be It Enacted by the Legislature of the State of Florida:
   50  
   51         Section 1. Section 701.04, Florida Statutes, is amended to
   52  read:
   53         701.04 Cancellation of mortgages, liens, and judgments.—
   54         (1)(a) Within 10 14 days after receipt of the written
   55  request of a mortgagor, a record title owner of the property, a
   56  fiduciary or trustee lawfully acting on behalf of a record title
   57  owner, or any other person lawfully authorized to act on behalf
   58  of a mortgagor or record title owner of the property, the
   59  mortgagee holder of a mortgage shall deliver or mortgage cause
   60  the servicer shall send or cause to be sent of the mortgage to
   61  deliver to the person making the request at a place designated
   62  in the written request an estoppel letter setting forth the
   63  unpaid balance of the loan secured by the mortgage. If the
   64  written request is made by a person other than the mortgagor,
   65  the request must include a copy of the instrument showing such
   66  person’s title in the property or other lawful authorization,
   67  and the mortgagee or mortgage servicer must notify the mortgagor
   68  of the request.
   69         (a)If the mortgagor, or any person lawfully authorized to
   70  act on behalf of the mortgagor, makes the request, the estoppel
   71  letter must include an itemization of the principal, interest,
   72  and any other charges properly due under or secured by the
   73  mortgage and interest on a per-day basis for the unpaid balance.
   74         (b) If a record title owner of the property, or any person
   75  lawfully authorized to act on behalf of a mortgagor or record
   76  title owner of the property, makes the request:
   77         1.The request must include a copy of the instrument
   78  showing title in the property or lawful authorization.
   79         2. The estoppel letter may include the itemization of
   80  information required under paragraph (a), but must at a minimum
   81  include:
   82         1. The total unpaid balance of the loan due under or
   83  secured by the mortgage as of the date specified in the estoppel
   84  letter, including an itemization of the principal, interest, and
   85  any other charges comprising the unpaid balance; and
   86         2.Interest accruing on a per-day basis for the unpaid
   87  balance from and after the date specified in the estoppel
   88  letter, if applicable.
   89         (c)1.Except for mortgages for which a notice of lis
   90  pendens in a foreclosure action or a suggestion of bankruptcy
   91  has been properly filed and recorded, the mortgagee or mortgage
   92  servicer may not qualify, reserve the right to change, or
   93  condition or disclaim the reliance of others on the information
   94  provided in an estoppel letter under paragraph (b), and any
   95  attempt to do so is void and unenforceable. However, if the
   96  mortgagee or mortgage servicer determines that any of the
   97  information provided in the estoppel letter under paragraph (b)
   98  was inaccurate, the mortgagee or mortgage servicer may send a
   99  corrected estoppel letter to the person who requested the
  100  estoppel letter in the same manner as used to respond to the
  101  original written request. If the original written request is
  102  made by a person other than the mortgagor, the mortgagee or
  103  mortgage servicer must also provide a copy of any corrected
  104  estoppel letter to the mortgagor.
  105         2.If the person who requested the original estoppel letter
  106  under paragraph (a) receives a corrected estoppel letter by 3
  107  p.m. in such person’s time zone at least 1 business day before a
  108  payment is issued in reliance on the previous estoppel letter,
  109  the corrected estoppel letter supersedes all prior estoppel
  110  letters.
  111         3.If any of the information provided in the estoppel
  112  letter under paragraph (b) was inaccurate, but the person who
  113  requested the estoppel letter did not timely receive a corrected
  114  estoppel letter as provided in subparagraph 2., the mortgagee or
  115  mortgage servicer may not deny the accuracy of such information
  116  as against any person who relied on it. This subparagraph does
  117  not affect the right of a mortgagee to recover any sum that it
  118  did not include in an estoppel letter from any person liable for
  119  payment of the loan or other obligations secured by the
  120  mortgage, nor does it limit any claim or defense to recovery
  121  which such person may have at law or in equity on a per-day
  122  basis.
  123         (d)3. The mortgagee or mortgage servicer of the mortgagee
  124  acting in accordance with a request in substantial compliance
  125  with this subsection paragraph is expressly discharged from any
  126  obligation or liability to any person on account of the release
  127  of the requested information, other than the obligation to
  128  comply with the terms of the estoppel letter.
  129         (e)If a payment is received at the location and in the
  130  manner specified by the mortgagee or mortgage servicer, the
  131  mortgagee or mortgage servicer must accept and may not return
  132  any payment received in reliance on an estoppel letter and must
  133  promptly apply such payment to the unpaid balance of the loan
  134  properly due under or secured by the mortgage.
  135         (f)1.A written request for an estoppel letter under
  136  paragraph (a) must be sent to the mortgagee or mortgage servicer
  137  by first-class mail, postage prepaid; by common carrier delivery
  138  service; or by e-mail, facsimile, or other electronic means at
  139  the address made available by the mortgagee or mortgage servicer
  140  for such purpose or through an automated system provided by the
  141  mortgagee or mortgage servicer for requesting an estoppel
  142  letter. The written request is considered received by the
  143  mortgagee or mortgage servicer:
  144         a.Five business days after the request sent by first-class
  145  mail is deposited with the United States Postal Service;
  146         b.The day the request is delivered by a common carrier
  147  delivery service; or
  148         c.The day the request is sent by e-mail, facsimile, or
  149  other electronic means or through an automated system provided
  150  by the mortgagee or mortgage servicer for requesting an estoppel
  151  letter.
  152  
  153  If any of the days in sub-subparagraph a., sub-subparagraph b.,
  154  or sub-subparagraph c. fall on a Saturday, Sunday, or holiday
  155  specified in s. 110.117(1) or the laws of the United States, the
  156  request for an estoppel letter is considered timely received by
  157  the mortgagee or mortgage servicer on the next business day.
  158         2.The mortgagee or mortgage servicer must send an estoppel
  159  letter by first-class mail, postage prepaid; by common carrier
  160  delivery service; or by e-mail, facsimile, or other electronic
  161  means, as directed in the written request, or through an
  162  automated system provided by the mortgagee or mortgage servicer
  163  for this purpose. However, the mortgagee or mortgage servicer is
  164  not required to pay for a common carrier delivery service. If
  165  the 10-day period after a written request is received by the
  166  mortgagee or mortgage servicer ends on a Saturday, Sunday, or
  167  holiday specified in s. 110.117(1) or the laws of the United
  168  States, the estoppel letter is considered timely if it is sent
  169  by the close of business on the next business day.
  170         (g)(c)Notwithstanding s. 655.059, a mortgagee or mortgage
  171  servicer mortgage holder may provide the financial information
  172  required under this subsection to a person authorized under this
  173  subsection to request the financial information notwithstanding
  174  s. 655.059.
  175         (2)(a)Within 60 days after the unpaid balance of a loan
  176  secured by a mortgage has been fully paid or paid pursuant to an
  177  estoppel letter under subsection (1), whichever is earlier, the
  178  mortgagee or mortgage servicer shall execute in writing an
  179  instrument acknowledging release of the mortgage; have the
  180  instrument acknowledged, or proven, and send it or cause it to
  181  be sent for recording in the official records of the proper
  182  county; and send or cause to be sent the recorded release to the
  183  mortgagor or record title owner of the property. The prevailing
  184  party in a civil action brought against the mortgagee or
  185  mortgage servicer to enforce the requirements of this paragraph
  186  is entitled to reasonable attorney fees and costs.
  187         (b)The recorded release of the mortgage does not relieve
  188  the mortgagor, or the mortgagor’s successors or assigns, from
  189  any personal liability on the loan or other obligations
  190  previously secured by the mortgage.
  191         (3)(2)Within 60 days after the unpaid balance Whenever the
  192  amount of money due on a any mortgage, lien, or judgment has
  193  been fully paid to the person or party entitled to the payment
  194  thereof, the mortgagee, creditor, or assignee, or the attorney
  195  of record in the case of a judgment, to whom the payment was
  196  made, shall execute in writing an instrument acknowledging
  197  satisfaction of the mortgage, lien, or judgment; and have the
  198  instrument acknowledged, or proven, and send it or cause it to
  199  be sent for recording duly entered in the official records of
  200  the proper county; and. Within 60 days after the date of receipt
  201  of the full payment of the mortgage, lien, or judgment, the
  202  person required to acknowledge satisfaction of the mortgage,
  203  lien, or judgment shall send or cause to be sent the recorded
  204  satisfaction to the person who has made the full payment. In the
  205  case of a civil action arising out of this section, The
  206  prevailing party in a civil action brought against the creditor
  207  or assignee, or the attorney of record in the case of a
  208  judgment, to enforce the requirements of this subsection is
  209  entitled to reasonable attorney fees and costs.
  210         (4)(3)When Whenever a writ of execution has been issued,
  211  docketed, and indexed with a sheriff and the judgment upon which
  212  it was issued has been fully paid, it is the responsibility of
  213  the person party receiving payment to request, in writing,
  214  addressed to the sheriff, return of the writ of execution as
  215  fully satisfied.
  216         Section 2. Paragraph (a) of subsection (1) and subsection
  217  (2) of section 701.041, Florida Statutes, are amended to read:
  218         701.041 Title insurer; mortgage release certificate.—
  219         (1) DEFINITIONS.—For purposes of this section:
  220         (a) “Estoppel letter” means a statement containing, at a
  221  minimum, the information required in s. 701.04(1)(b) of the
  222  amount of:
  223         1.The unpaid balance of a loan secured by a mortgage,
  224  including principal, interest, and any other charges properly
  225  due under or secured by the mortgage.
  226         2.Interest on a per-day basis for the unpaid balance.
  227         (2) CERTIFICATE OF RELEASE.—An officer or duly appointed
  228  agent of a title insurer may, on behalf of a mortgagor or a
  229  person who acquired from the mortgagor title to all or a part of
  230  the property described in a mortgage, execute a certificate of
  231  release that complies with the requirements of this section and
  232  record the certificate of release in the real property records
  233  of each county in which the mortgage is recorded if a
  234  satisfaction or release of the mortgage has not been executed
  235  and recorded after the date payment in full of the loan properly
  236  due under or secured by the mortgage was made in accordance with
  237  an estoppel letter a payoff statement furnished by the mortgagee
  238  or the mortgage servicer.
  239         Section 3. The Legislature finds that the timeliness and
  240  accuracy of an estoppel letter is critical because the parties
  241  to a real estate transaction must rely on the estoppel letter to
  242  establish the loan payoff amount necessary to release the
  243  mortgage, which in turn will allow the owner to confer clean
  244  title to a buyer or to refinance the property. The Legislature
  245  further finds that estoppel letters increasingly contain
  246  conditional language disclaiming the ability of an owner to rely
  247  on the stated loan payoff amounts, extending even to the return
  248  of such payments submitted by owners. These practices create
  249  unnecessary delays in the efficient operation of this state’s
  250  real estate market, which is a vital economic contributor to
  251  this state, and impose needless costs and burdens on property
  252  owners and buyers. In addition, the Legislature finds that real
  253  estate lending, mortgages, real estate transactions, and
  254  estoppel letters are extensively regulated under both Florida
  255  and federal law. The Legislature finds and determines that this
  256  act makes changes to state law which appropriately balance the
  257  parties’ interests, are reasonable and necessary to serve and
  258  achieve an important state interest, are necessary for the
  259  prosperity and welfare of the state and its property owners and
  260  inhabitants, and must be applied to existing mortgages in order
  261  to provide effective relief.
  262         Section 4. This act applies to all mortgages, and all loans
  263  secured by such mortgages, existing as of, or entered into on or
  264  after, October 1, 2023.
  265         Section 5. This act shall take effect October 1, 2023.