CS for SB 1016 First Engrossed 20221016e1 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; 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; providing that 38 certain persons may still be personally liable after 39 the recording of a release of a mortgage; conforming 40 provisions to changes made by the act; amending s. 41 701.041, F.S.; revising the definition of the term 42 estoppel letter; conforming provisions to changes 43 made by the act; providing legislative findings; 44 providing for retroactive applicability; providing an 45 effective date. 46 47 Be It Enacted by the Legislature of the State of Florida: 48 49 Section 1.Section 701.04, Florida Statutes, is amended to 50 read: 51 701.04Cancellation of mortgages, liens, and judgments. 52 (1)(a)Within 10 14 days after receipt of the written 53 request of a mortgagor, a record title owner of the property, a 54 fiduciary or trustee lawfully acting on behalf of a record title 55 owner, or any other person lawfully authorized to act on behalf 56 of a mortgagor or record title owner of the property, the 57 mortgagee holder of a mortgage shall deliver or mortgage cause 58 the servicer shall send or cause to be sent of the mortgage to 59 deliver to the person making the request at a place designated 60 in the written request an estoppel letter setting forth the 61 unpaid balance of the loan secured by the mortgage. If the 62 written request is made by a person other than the mortgagor, 63 the request must include a copy of the instrument showing such 64 persons title in the property or other lawful authorization, 65 and the mortgagee or mortgage servicer must notify the mortgagor 66 of the request. 67 (a)If the mortgagor, or any person lawfully authorized to 68 act on behalf of the mortgagor, makes the request, the estoppel 69 letter must include an itemization of the principal, interest, 70 and any other charges properly due under or secured by the 71 mortgage and interest on a per-day basis for the unpaid balance. 72 (b)If a record title owner of the property, or any person 73 lawfully authorized to act on behalf of a mortgagor or record 74 title owner of the property, makes the request: 75 1.The request must include a copy of the instrument 76 showing title in the property or lawful authorization. 77 2.The estoppel letter may include the itemization of 78 information required under paragraph (a), but must at a minimum 79 include: 80 1.The total unpaid balance of the loan due under or 81 secured by the mortgage as of the date specified in the estoppel 82 letter, including an itemization of the principal, interest, and 83 any other charges comprising the unpaid balance; and 84 2.Interest accruing on a per-day basis for the unpaid 85 balance from and after the date specified in the estoppel 86 letter, if applicable. 87 (c)1.Except for mortgages for which a notice of lis 88 pendens in a foreclosure action or a suggestion of bankruptcy 89 has been properly filed and recorded, the mortgagee or mortgage 90 servicer may not qualify, reserve the right to change, or 91 condition or disclaim the reliance of others on the information 92 provided in an estoppel letter under paragraph (b), and any 93 attempt to do so is void and unenforceable. However, if the 94 mortgagee or mortgage servicer determines that any of the 95 information provided in the estoppel letter under paragraph (b) 96 was inaccurate, the mortgagee or mortgage servicer may send a 97 corrected estoppel letter to the person who requested the 98 estoppel letter in the same manner as used to respond to the 99 original written request. If the original written request is 100 made by a person other than the mortgagor, the mortgagee or 101 mortgage servicer must also provide a copy of any corrected 102 estoppel letter to the mortgagor. 103 2.If the person who requested the original estoppel letter 104 under subparagraph (f)1. receives a corrected estoppel letter by 105 3 p.m. in such persons time zone at least 1 business day before 106 a payment is issued in reliance on the previous estoppel letter, 107 the corrected estoppel letter supersedes all prior estoppel 108 letters. 109 3.If any of the information provided in the estoppel 110 letter under paragraph (b) was inaccurate, but the person who 111 requested the estoppel letter did not timely receive a corrected 112 estoppel letter as provided in subparagraph 2., the mortgagee or 113 mortgage servicer may not deny the accuracy of such information 114 as against any person who relied on it. This subparagraph does 115 not affect the right of a mortgagee to recover any sum that it 116 did not include in an estoppel letter from any person liable for 117 payment of the loan or other obligations secured by the 118 mortgage, nor does it limit any claim or defense to recovery 119 that such person may have at law or in equity on a per-day 120 basis. 121 (d)3.The mortgagee or mortgage servicer of the mortgagee 122 acting in accordance with a request in substantial compliance 123 with this subsection paragraph is expressly discharged from any 124 obligation or liability to any person on account of the release 125 of the requested information, other than the obligation to 126 comply with the terms of the estoppel letter. 127 (e)If a payment is received at the location and in the 128 manner specified by the mortgagee or mortgage servicer, the 129 mortgagee or mortgage servicer must accept and may not return 130 any payment received in reliance on an estoppel letter and must 131 promptly apply such payment to the unpaid balance of the loan 132 properly due under or secured by the mortgage. 133 (f)1.A written request for an estoppel letter under 134 paragraph (a) must be sent to the mortgagee or mortgage servicer 135 by first-class mail, postage prepaid; by common carrier delivery 136 service; or by e-mail, facsimile, or other electronic means at 137 the address made available by the mortgagee or mortgage servicer 138 for such purpose or through an automated system provided by the 139 mortgagee or mortgage servicer for requesting an estoppel 140 letter. The written request is considered received by the 141 mortgagee or mortgage servicer: 142 a.Five business days after the request sent by first-class 143 mail is deposited with the United States Postal Service; 144 b.The day the request is delivered by a common carrier 145 delivery service; or 146 c.The day the request is sent by e-mail, facsimile, or 147 other electronic means or through an automated system provided 148 by the mortgagee or mortgage servicer for requesting an estoppel 149 letter. 150 151 If any of the days in sub-subparagraph a., sub-subparagraph b., 152 or sub-subparagraph c. falls on a Saturday, Sunday, or legal 153 holiday under the laws of this state or the United States, the 154 request for an estoppel letter is considered timely received by 155 the mortgagee or mortgage servicer on the next business day. 156 2.The mortgagee or mortgage servicer must send an estoppel 157 letter by first-class mail; by common carrier delivery service; 158 or by e-mail, facsimile, or other electronic means, as directed 159 in the written request, or through an automated system provided 160 by the mortgagee or mortgage servicer for this purpose. However, 161 the mortgagee or mortgage servicer is not required to pay for a 162 common carrier delivery service. If the 10-day period after a 163 written request is received by the mortgagee or mortgage 164 servicer ends on a Saturday, Sunday, or legal holiday under the 165 laws of this state or the United States, the estoppel letter is 166 considered timely if it is sent by the close of business on the 167 next business day. 168 (g)(c)Notwithstanding s. 655.059, a mortgagee or mortgage 169 servicer mortgage holder may provide the financial information 170 required under this subsection to a person authorized under this 171 subsection to request the financial information notwithstanding 172 s. 655.059. 173 (2)(a)Within 60 days after the unpaid balance of a loan 174 secured by a mortgage has been fully paid or paid pursuant to an 175 estoppel letter under subsection (1), whichever is earlier, the 176 mortgagee or mortgage servicer shall execute in writing an 177 instrument acknowledging release of the mortgage; have the 178 instrument acknowledged, or proven, and send it or cause it to 179 be sent for recording in the official records of the proper 180 county; and send or cause to be sent the recorded release to the 181 mortgagor or record title owner of the property. The prevailing 182 party in a civil action brought against the mortgagee or 183 mortgage servicer to enforce the requirements of this paragraph 184 is entitled to reasonable attorney fees and costs. 185 (b)The recorded release of the mortgage does not relieve 186 the mortgagor, or the mortgagors successors or assigns, from 187 any personal liability on the loan or other obligations 188 previously secured by the mortgage. 189 (3)(2)Whenever the amount of money due on a any mortgage, 190 lien, or judgment has been fully paid to the person or party 191 entitled to the payment thereof, the mortgagee, creditor, or 192 assignee, or the attorney of record in the case of a judgment, 193 to whom the payment was made, shall execute in writing an 194 instrument acknowledging satisfaction of the mortgage, lien, or 195 judgment and have the instrument acknowledged, or proven, and 196 duly entered in the official records of the proper county. 197 Within 60 days after the date of receipt of the full payment of 198 the mortgage, lien, or judgment, the person required to 199 acknowledge satisfaction of the mortgage, lien, or judgment 200 shall send or cause to be sent the recorded satisfaction to the 201 person who has made the full payment. In the case of a civil 202 action regarding a lien or judgment arising out of this section, 203 the prevailing party is entitled to attorney fees and costs. 204 (4)(3)When Whenever a writ of execution has been issued, 205 docketed, and indexed with a sheriff and the judgment upon which 206 it was issued has been fully paid, it is the responsibility of 207 the person party receiving payment to request, in writing, 208 addressed to the sheriff, return of the writ of execution as 209 fully satisfied. 210 Section 2.Paragraph (a) of subsection (1) and subsection 211 (2) of section 701.041, Florida Statutes, are amended to read: 212 701.041Title insurer; mortgage release certificate. 213 (1)DEFINITIONS.For purposes of this section: 214 (a)Estoppel letter means a statement containing, at a 215 minimum, the information required in s. 701.04(1)(b) of the 216 amount of: 217 1.The unpaid balance of a loan secured by a mortgage, 218 including principal, interest, and any other charges properly 219 due under or secured by the mortgage. 220 2.Interest on a per-day basis for the unpaid balance. 221 (2)CERTIFICATE OF RELEASE.An officer or duly appointed 222 agent of a title insurer may, on behalf of a mortgagor or a 223 person who acquired from the mortgagor title to all or a part of 224 the property described in a mortgage, execute a certificate of 225 release that complies with the requirements of this section and 226 record the certificate of release in the real property records 227 of each county in which the mortgage is recorded if a 228 satisfaction or release of the mortgage has not been executed 229 and recorded after the date payment in full of the loan properly 230 due under or secured by the mortgage was made in accordance with 231 an estoppel letter a payoff statement furnished by the mortgagee 232 or the mortgage servicer. 233 Section 3.The Legislature finds that the timeliness and 234 accuracy of an estoppel letter is critical because the parties 235 to a real estate transaction must rely on the estoppel letter to 236 establish the loan payoff amount necessary to release the 237 mortgage, which in turn will allow the owner to confer clean 238 title to a buyer or to refinance the property. The Legislature 239 further finds that estoppel letters increasingly contain 240 conditional language disclaiming the ability of an owner to rely 241 on the stated loan payoff amounts, extending even to the return 242 of such payments submitted by owners, creating unnecessary 243 delays in the efficient operation of this states real estate 244 market, which is a vital economic contributor to this state, and 245 imposing needless costs and burdens on property owners and 246 buyers. In addition, the Legislature finds that real estate 247 lending, mortgages, real estate transactions, and estoppel 248 letters are extensively regulated under both Florida and federal 249 law. The Legislature finds and determines that this act makes 250 changes to state law that appropriately balance the parties 251 interests, are reasonable and necessary to serve and achieve an 252 important state interest, are necessary for the prosperity and 253 welfare of the state and its property owners and inhabitants, 254 and must be applied to existing mortgages in order to provide 255 effective relief. 256 Section 4.This act shall take effect October 1, 2022, and 257 applies to all mortgages existing as of that date and entered 258 into on or after that date, as well as to all loans secured by 259 such mortgages.