Florida Senate - 2022 CS for SB 1016 By the Committee on Banking and Insurance; and Senator Burgess 597-02838-22 20221016c1 1 A bill to be entitled 2 An act relating to mortgage payoff letters; amending 3 s. 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; providing 16 that a corrected estoppel letter supersedes any 17 previous estoppel letter under certain circumstances; 18 prohibiting the mortgagee or mortgage servicer from 19 denying the accuracy of certain information provided 20 in an estoppel letter under certain circumstances; 21 providing construction; prohibiting payments received 22 pursuant to an estoppel letter from being returned and 23 requiring such payments to be promptly applied to any 24 unpaid balance of the loan properly due under or 25 secured by a mortgage; providing methods for sending a 26 written request for an estoppel letter and for sending 27 an estoppel letter; providing that the mortgagee or 28 mortgage servicer is not required to pay for a common 29 carrier delivery service; requiring the mortgagee or 30 mortgage servicer to take certain actions within a 31 specified time after the unpaid balance of a loan 32 properly secured by a mortgage has been fully paid or 33 paid pursuant to an estoppel letter; authorizing 34 reasonable attorney fees and costs; providing that 35 certain persons may still be personally liable after 36 the recording of a release of a mortgage; amending s. 37 701.041, F.S.; revising the definition of the term 38 estoppel letter; conforming provisions to changes 39 made by the act; providing legislative findings; 40 providing for retroactive applicability; providing an 41 effective date. 42 43 Be It Enacted by the Legislature of the State of Florida: 44 45 Section 1.Section 701.04, Florida Statutes, is amended to 46 read: 47 701.04Cancellation of mortgages, liens, and judgments. 48 (1)(a)Within 10 14 days after receipt of the written 49 request of a mortgagor, a record title owner of the property, a 50 fiduciary or trustee lawfully acting on behalf of a record title 51 owner, or any other person lawfully authorized to act on behalf 52 of a mortgagor or record title owner of the property, the 53 mortgagee holder of a mortgage shall deliver or mortgage cause 54 the servicer shall send or cause to be sent of the mortgage to 55 deliver to the person making the request at a place designated 56 in the written request an estoppel letter setting forth the 57 unpaid balance of the loan secured by the mortgage. If the 58 written request is made by a person other than the mortgagor, 59 the request must include a copy of the instrument showing such 60 persons title in the property or other lawful authorization, 61 and the mortgagee or mortgage servicer must notify the mortgagor 62 of the request. 63 (a)If the mortgagor, or any person lawfully authorized to 64 act on behalf of the mortgagor, makes the request, the estoppel 65 letter must include an itemization of the principal, interest, 66 and any other charges properly due under or secured by the 67 mortgage and interest on a per-day basis for the unpaid balance. 68 (b)If a record title owner of the property, or any person 69 lawfully authorized to act on behalf of a mortgagor or record 70 title owner of the property, makes the request: 71 1.The request must include a copy of the instrument 72 showing title in the property or lawful authorization. 73 2.The estoppel letter may include the itemization of 74 information required under paragraph (a), but must at a minimum 75 include: 76 1.The total unpaid balance of the loan due under or 77 secured by the mortgage as of the date specified in the estoppel 78 letter, including an itemization of the principal, interest, and 79 any other charges comprising the unpaid balance; and 80 2.Interest accruing on a per-day basis for the unpaid 81 balance, if applicable. 82 (c)1.Except for mortgages for which a notice of lis 83 pendens in a foreclosure action or a suggestion of bankruptcy 84 has been properly filed and recorded, the mortgagee or mortgage 85 servicer may not qualify, reserve the right to change, or 86 condition or disclaim the reliance of others on the information 87 provided in an estoppel letter under paragraph (b), and any 88 attempt to do so is void and unenforceable. However, if the 89 mortgagee or mortgage servicer determines that any of the 90 information provided in the estoppel letter under paragraph (b) 91 was inaccurate, the mortgagee or mortgage servicer may send a 92 corrected estoppel letter to the person who requested the 93 estoppel letter. 94 2.If the person who requested the original estoppel letter 95 under subparagraph (f)1. receives a corrected estoppel letter by 96 3 p.m. in such persons time zone at least 1 business day before 97 a payment is issued in reliance on the previous estoppel letter, 98 the corrected estoppel letter supersedes all prior estoppel 99 letters. 100 3.If any of the information provided in the estoppel 101 letter under paragraph (b) was inaccurate, but the person who 102 requested the estoppel letter did not timely receive a corrected 103 estoppel letter as provided in subparagraph 2., the mortgagee or 104 mortgage servicer may not deny the accuracy of such information 105 as against any person who relied on it. This subparagraph does 106 not affect the right of a mortgagee to recover any sum that it 107 did not include in an estoppel letter from any person liable for 108 payment of the loan or other obligations secured by the 109 mortgage, nor does it limit any claim or defense to recovery 110 that such person may have at law or in equity on a per-day 111 basis. 112 (d)3.The mortgagee or mortgage servicer of the mortgagee 113 acting in accordance with a request in substantial compliance 114 with this subsection paragraph is expressly discharged from any 115 obligation or liability to any person on account of the release 116 of the requested information, other than the obligation to 117 comply with the terms of the estoppel letter. 118 (e)If a payment is received at the location and in the 119 manner specified by the mortgagee or mortgage servicer, the 120 mortgagee or mortgage servicer must accept and may not return 121 any payment received in reliance on an estoppel letter and must 122 promptly apply such payment to the unpaid balance of the loan 123 properly due under or secured by the mortgage. 124 (f)1.A written request for an estoppel letter under 125 paragraph (a) must be sent to the mortgagee or mortgage servicer 126 by first-class mail, postage prepaid; by common carrier delivery 127 service; or by e-mail, facsimile, or other electronic means at 128 the address made available by the mortgagee or mortgage servicer 129 for such purpose or through an automated system provided by the 130 mortgagee or mortgage servicer for requesting an estoppel 131 letter. The written request is considered received by the 132 mortgagee or mortgage servicer: 133 a.Five business days after the request sent by first-class 134 mail is deposited with the United States Postal Service; 135 b.The day the request is delivered by a common carrier 136 delivery service; or 137 c.The day the request is sent by e-mail, facsimile, or 138 other electronic means or through an automated system provided 139 by the mortgagee or mortgage servicer for requesting an estoppel 140 letter. 141 142 If any of the days in sub-subparagraph a., sub-subparagraph b., 143 or sub-subparagraph c. falls on a Saturday, Sunday, or legal 144 holiday under the laws of this state or the United States, the 145 request for an estoppel letter is considered timely received by 146 the mortgagee or mortgage servicer on the next business day. 147 2.The mortgagee or mortgage servicer must send an estoppel 148 letter by first-class mail; by common carrier delivery service; 149 or by e-mail, facsimile, or other electronic means, as directed 150 in the written request, or through an automated system provided 151 by the mortgagee or mortgage servicer for this purpose. However, 152 the mortgagee or mortgage servicer is not required to pay for a 153 common carrier delivery service. If the 10-day period after a 154 written request is received by the mortgagee or mortgage 155 servicer ends on a Saturday, Sunday, or legal holiday under the 156 laws of this state or the United States, the estoppel letter is 157 considered timely if it is sent by the close of business on the 158 next business day. 159 (g)(c)Notwithstanding s. 655.059, a mortgagee or mortgage 160 servicer mortgage holder may provide the financial information 161 required under this subsection to a person authorized under this 162 subsection to request the financial information notwithstanding 163 s. 655.059. 164 (2)(a)Within 60 days after the unpaid balance of a loan 165 secured by a mortgage has been fully paid or paid pursuant to an 166 estoppel letter under subsection (1), whichever is earlier, the 167 mortgagee or mortgage servicer shall execute in writing an 168 instrument acknowledging release of the mortgage; have the 169 instrument acknowledged, or proven, and send it or cause it to 170 be sent for recording in the official records of the proper 171 county; and send or cause to be sent the recorded release to the 172 mortgagor or record title owner of the property. The prevailing 173 party in a civil action brought against the mortgagee or 174 mortgage servicer to enforce the requirements of this paragraph 175 is entitled to reasonable attorney fees and costs. 176 (b)The recorded release of the mortgage does not relieve 177 the mortgagor, or the mortgagors successors or assigns, from 178 any personal liability on the loan or other obligations 179 previously secured by the mortgage. 180 (3)(2)Within 60 days after the unpaid balance Whenever the 181 amount of money due on a any mortgage, lien, or judgment has 182 been fully paid to the person or party entitled to the payment 183 thereof, the mortgagee, creditor, or assignee, or the attorney 184 of record in the case of a judgment, to whom the payment was 185 made, shall execute in writing an instrument acknowledging 186 satisfaction of the mortgage, lien, or judgment; and have the 187 instrument acknowledged, or proven, and duly entered in the 188 official records of the proper county; and. Within 60 days after 189 the date of receipt of the full payment of the mortgage, lien, 190 or judgment, the person required to acknowledge satisfaction of 191 the mortgage, lien, or judgment shall send or cause to be sent 192 the recorded satisfaction to the person who has made the full 193 payment. In the case of a civil action arising out of this 194 section, The prevailing party in a civil action brought against 195 the creditor or assignee, or the attorney of record in the case 196 of a judgment, to enforce the requirements of this subsection is 197 entitled to reasonable attorney fees and costs. 198 (4)(3)When Whenever a writ of execution has been issued, 199 docketed, and indexed with a sheriff and the judgment upon which 200 it was issued has been fully paid, it is the responsibility of 201 the person party receiving payment to request, in writing, 202 addressed to the sheriff, return of the writ of execution as 203 fully satisfied. 204 Section 2.Paragraph (a) of subsection (1) and subsection 205 (2) of section 701.041, Florida Statutes, are amended to read: 206 701.041Title insurer; mortgage release certificate. 207 (1)DEFINITIONS.For purposes of this section: 208 (a)Estoppel letter means a statement containing, at a 209 minimum, the information required in s. 701.04(1)(b) of the 210 amount of: 211 1.The unpaid balance of a loan secured by a mortgage, 212 including principal, interest, and any other charges properly 213 due under or secured by the mortgage. 214 2.Interest on a per-day basis for the unpaid balance. 215 (2)CERTIFICATE OF RELEASE.An officer or duly appointed 216 agent of a title insurer may, on behalf of a mortgagor or a 217 person who acquired from the mortgagor title to all or a part of 218 the property described in a mortgage, execute a certificate of 219 release that complies with the requirements of this section and 220 record the certificate of release in the real property records 221 of each county in which the mortgage is recorded if a 222 satisfaction or release of the mortgage has not been executed 223 and recorded after the date payment in full of the loan properly 224 due under or secured by the mortgage was made in accordance with 225 an estoppel letter a payoff statement furnished by the mortgagee 226 or the mortgage servicer. 227 Section 3.The Legislature finds that the timeliness and 228 accuracy of an estoppel letter is critical because the parties 229 to a real estate transaction must rely on the estoppel letter to 230 establish the loan payoff amount necessary to release the 231 mortgage, which in turn will allow the owner to confer clean 232 title to a buyer or to refinance the property. The Legislature 233 further finds that estoppel letters increasingly contain 234 conditional language disclaiming the ability of an owner to rely 235 on the stated loan payoff amounts, extending even to the return 236 of such payments submitted by owners, creating unnecessary 237 delays in the efficient operation of this states real estate 238 market, which is a vital economic contributor to this state, and 239 imposing needless costs and burdens on property owners and 240 buyers. In addition, the Legislature finds that real estate 241 lending, mortgages, real estate transactions, and estoppel 242 letters are extensively regulated under both Florida and federal 243 law. The Legislature finds and determines that this act makes 244 changes to state law that appropriately balance the parties 245 interests, are reasonable and necessary to serve and achieve an 246 important state interest, are necessary for the prosperity and 247 welfare of the state and its property owners and inhabitants, 248 and must be applied to existing mortgages in order to provide 249 effective relief. 250 Section 4.This act shall take effect October 1, 2022, and 251 applies to all mortgages existing as of that date and entered 252 into on or after that date, as well as to all loans secured by 253 such mortgages.