Bill Text: FL S1672 | 2012 | Regular Session | Introduced
Bill Title: Mortgages
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2012-03-09 - Died in Banking and Insurance [S1672 Detail]
Download: Florida-2012-S1672-Introduced.html
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.
