South Carolina General Assembly
113th Session, 1999-2000

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Bill 777


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                      777
Type of Legislation:              General Bill GB
Introducing Body:                 Senate
Introduced Date:                  19990429
Primary Sponsor:                  Elliott
All Sponsors:                     Elliott and Rankin
Drafted Document Number:          l:\council\bills\kgh\15627dc99.doc
Companion Bill Number:            3889
Residing Body:                    Senate
Current Committee:                Judiciary Committee 11 SJ
Subject:                          Timeshare Lien Foreclosure Act, Vacation 
                                  time sharing plans; Property


                        History

Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
Senate  19990429  Introduced, read first time,           11 SJ
                  referred to Committee


                             Versions of This Bill

View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND CHAPTER 32, TITLE 27, CODE OF LAWS OF SOUTH CAROLINA, 1976, AS AMENDED, RELATING TO VACATION TIMESHARING PLANS, BY ADDING ARTICLE 3, SO AS TO PROVIDE PROCEDURES FOR THE FORECLOSURE OF LIENS ON TIMESHARE ESTATES; AND TO DESIGNATE SECTIONS 27-32-10 THROUGH 27-32-250 AS ARTICLE 1, CHAPTER 32, TITLE 27, ENTITLED "VACATION TIME SHARING PLANS".

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Chapter 32, Title 27 of the 1976 Code is amended by adding:

"Article 3

Timeshare Lien Foreclosures

Section 27-32-300. This article may be cited as the 'Timeshare Lien Foreclosure Act'.

Section 27-32-305. The purposes of this article are to:

(1) recognize that timeshare estates are interests in real property used for vacation experience rather than for homestead purposes and that there are numerous timeshare estates in South Carolina;

(2) recognize that the economic health and efficient operation of the vacation ownership industry are in part dependent upon the availability of an efficient and economical process for foreclosure;

(3) recognize the need to assist vacation ownership resort owners' associations by simplifying and expediting the process of foreclosure of assessment liens and mortgage liens;

(4) reduce court congestion and cost to taxpayers by establishing streamlined procedures for foreclosure of assessment liens and mortgage liens against timeshare estates;

(5) establish those streamlined procedures by giving statutory recognition to the right of persons to privately contract for a power of sale as their remedy in lieu of a judicial foreclosure of liens on timeshare estates while specifically limiting the application of such nonjudicial foreclosure procedures to timeshare estates only.

Section 27-32-310. As used in this article:

(1) 'Assessment lien' means:

(a) a lien for delinquent assessments as to timeshare condominiums; or

(b) a lien for unpaid taxes and special assessments.

(2) 'Claim of lien' means a claim of a recorded assessment lien.

(3) 'Junior interest holder' means any person who has a lien or interest of record prior to the recording of the notice of sale against a timeshare estate in the county in which the timeshare estate is located which is inferior to the mortgage lien or assessment lien being foreclosed under this article.

(4) 'Lienholder' means a holder of an assessment lien or a holder of a mortgage lien, as applicable.

(5) 'Mortgage' means an instrument that creates a lien on a particular timeshare.

(6) 'Mortgage lien' means a security interest in a timeshare estate created by a mortgage encumbering the timeshare estate.

(7) 'Mortgagee' means a person holding a mortgage lien.

(8) 'Mortgagor' means a person granting a mortgage lien.

(9) 'Notice address' means:

(a) as to an assessment lien, the address of the current owner of a timeshare estate as reflected by the books and records of the timeshare plan.

(b) as to a mortgage lien:

(i) the address of the mortgagor set forth in the mortgage, the promissory note or a separate document executed by the mortgagor at the time the mortgage lien was created, or the most current address of the mortgagor according to the records of the mortgagee; and

(ii) the address of the current owner of the timeshare estate as reflected by the books and records of the timeshare plan.

(c) as to a 'junior interest holder', the address set forth in the recorded instrument creating the junior interest or lien or any recorded supplement thereto changing the address and written notification by the 'junior interest holder' to the foreclosing lienholder of such change in address.

(10) 'Obligor' means either the mortgagor, the person obligated under a claim of lien, or the record owner of the timeshare estate as the context requires.

(11) 'Power of sale' means:

(a) an express written agreement in a mortgage identifying the mortgagor, mortgagee, and the trustee; or

(b) an express written provision in a timeshare instrument identifying the managing entity and the trustee which authorizes the trustee to sell the timeshare estate without judicial action at a foreclosure sale regularly conducted and duly held in accordance with this article. However, as to assessment liens only, no written agreement is required for a receiver appointed for the association to sell a timeshare estate without judicial action at a foreclosure sale regularly conducted and duly held in accordance with this article.

(12) 'Trustee' means any person entitled to exercise a power of sale.

Section 27-32-315. (A) A trustee may be any:

(1) attorney who is an active licensed member of the South Carolina Bar in good standing or a law firm among those whose members include such an attorney; or

(2) title insurance company, title insurance agent, or title insurance agency licensed to do business in this State.

(B) An attorney who is a trustee under subsection (A)(1) may represent the lienholder foreclosing under this article in addition to performing the duties of a trustee under a power of sale.

(C) Successor trustees may be appointed by a lienholder at any time by recording a notice of substitution of trustee in the public records for the county in which the timeshare estate is located. From the time the substitution of trustee is recorded, the successor trustee shall succeed to all the powers, duties, and authority of the original trustee and successor trustees, if any.

(D) The recorded notice of substitution of trustee must identify:

(1) the mortgage or timeshare instrument.

(2) the names of the original parties to the mortgage or timeshare instrument.

(3) the date of recordation of the mortgage or timeshare instrument.

(4) the official record book and page number where the mortgage or timeshare instrument is recorded.

(5) the name of the successor trustee.

(6) the name of the trustee being replaced. The notice must recite acceptance by the successor trustee of his or her duties and must be dated, signed, and acknowledged by the lienholder and the successor trustee. A notice of substitution of trustee is valid for purposes of this article when made and recorded in accordance with this section. A resignation of the original or prior trustee is not required.

(E) The lienholder may not serve as the trustee.

Section 27-32-320. (A) In order to foreclose a mortgage lien pursuant to this article, the following conditions must have been met:

(1) The mortgage recorded in the public records of the county in which the timeshare estate being foreclosed is located must contain a statement in conspicuous type in substantially the following form:

'There is a mortgage lien against your timeshare estate which must be repaid in accordance with this mortgage. Your failure to make timely payments required by this mortgage may result in foreclosure of the mortgage lien. Mortgagor acknowledges that if the obligations established by this mortgage are not satisfied and mortgagor does not cure such default in accordance with the terms hereof, then the mortgage lien created by this mortgage can be foreclosed through a nonjudicial procedure in accordance with Section 27-32-345, Code of Laws of South Carolina, 1976, as amended. Mortgagor understands that he or she will not be subject to a deficiency judgment or personal liability resulting from a nonjudicial foreclosure procedure even if the sale of his or her timeshare estate resulting from the foreclosure is insufficient to satisfy the amount of the debt. Mortgagor further acknowledges that trustee will send the notice required by such procedure to the mortgagor's notice address and mortgagor agrees to inform mortgagee of address changes. Mortgagor consents to notification by certified or registered mail and agrees that any person at the mortgagor's notice address may acknowledge receipt of any correspondence received in connection with such procedure. Mortgagor understands that trustee may notify mortgagor of the commencement of the procedure by publication if delivery of the notice is not accepted at the notice address. If mortgagor sends trustee a written objection to the nonjudicial procedure stating the reasons for such objection, the matter will be transferred to a judicial procedure, but mortgagor understands and agrees that in the judicial foreclosure procedure, he or she may be subject to a deficiency judgment or personal liability if the sale of his or her timeshare estate resulting from the foreclosure is insufficient to satisfy the amount of the debt. Mortgagor further understands and agrees that in the judicial procedure if the court finds that there is a complete absence of a justifiable issue of either law or fact raised by the objection or defense, then mortgagor may be personally liable for the costs and attorney's fees incurred by the lienholder in the judicial foreclosure.'

(2) The mortgage, promissory note, or a separate instrument signed by the mortgagor must contain the mortgagor's notice address.

(B) In order to foreclose an assessment lien pursuant to this article, the following conditions must have been met:

(1) The timeshare instrument recorded in the public records of the county in which the timeshare estate being foreclosed is located must contain a statement in conspicuous type in substantially the following form:

'Each owner understands that if the obligations owed for assessments of the association and for ad valorem taxes and special assessments are not satisfied and owner does not timely cure such default, then the lien securing the payment of such obligations can be foreclosed through a nonjudicial procedure in accordance with Article 3, Chapter 32, Title 27, Code of Laws of South Carolina, 1976, as amended. Owner understands that he or she will not be subject to a deficiency judgment or personal liability resulting from a nonjudicial foreclosure procedure, even if the sale of his or her timeshare estate resulting from the foreclosure is insufficient to offset the amount of the default. Owner acknowledges trustee will send the notice required by such procedure to the owner's notice address, and owner agrees to inform the managing entity of address changes. Owner consents to notification by certified or registered mail and agrees that any person at the owner's notice address may acknowledge receipt of any correspondence received in connection with such procedure. Owner understands that trustee may notify owner of the commencement of the procedure by publication if delivery of the notice is not accepted at the notice address. If owner sends the trustee a written objection to the nonjudicial procedure stating the reasons for such objection, the matter will be transferred to a judicial procedure, but owner understands and agrees that in the judicial foreclosure procedure, the owner may be subject to a deficiency judgment or personal liability if the sale of his or her timeshare estate resulting from the foreclosure is insufficient to offset the amount of the default. Owner further understands and agrees that in the judicial procedure if the court finds that there is a complete absence of a justifiable issue of either law or fact raised by the owner's objection or defense, then owner may be personally liable for the costs and attorney's fees incurred by the lienholder in the judicial foreclosure.'

(2) The public offering statement text must contain a statement in conspicuous type in substantially the following form:

'There is a lien or lien right against each timeshare estate to secure the payment of assessments or other amounts due from owners to the association in accordance with the operating budget and special assessments and to secure payment of assessments for ad valorem real estate taxes. A purchaser's failure to make such required payments may result in foreclosure of an assessment lien. Assessment liens may be foreclosed in accordance with judicial procedures established by law or a nonjudicial procedure established by Article 3, Chapter 32, Title 27, Code of Laws of South Carolina, 1976, as amended. By purchasing a timeshare estate in the timeshare plan described in this public offering statement, purchaser acknowledges and agrees that any assessment lien against the timeshare estate owned by purchaser may be foreclosed by a nonjudicial procedure and agrees that the notice of a foreclosure by a nonjudicial procedure may be made by the use of certified or registered mail. Purchaser is required to provide an address for the delivery of all notices required by law and to inform the managing entity of any changes in the purchaser's notice address.'

(3) As to any timeshare instrument recorded prior to the effective date of this article, an amendment to the timeshare instrument must include the notice required by subparagraph (1) of this subsection and upon approval of the amendment to the timeshare instrument, a copy of the amendment must be sent by the managing entity to each timeshare estate owner. The amendment must be approved by the association by the vote required for amendments to the timeshare instrument as provided in the timeshare instrument or, if there is no such provision, on the affirmative vote of a majority of the owners of the association. If an amendment is adopted, the notice required under subparagraph (2) of this subsection is not required to be given to existing owners.

(C) Notwithstanding anything to the contrary in this article, a receiver for the association may exercise a power of sale as to assessment liens regardless of whether the notices or the acknowledgment required by subsection (B) have been given.

Section 27-32-325. A trustee may exercise a power of sale provided that:

(1) the requirements of Section 27-32-320 have been met and any substitution of trustee is filed for record in the public records of the county in which the timeshare estate is located.

(2) there is a default by the obligor under the mortgage, the timeshare instrument, or applicable law, the performance of which is secured by the mortgage or required under the timeshare instrument, or applicable law, with respect to any provision in the mortgage, the timeshare instrument, or applicable law that authorizes foreclosure in the event of default of the provision.

(3) there is no lis pendens recorded and pending regarding a judicial action for foreclosure of the mortgage lien or the assessment lien against the same timeshare estate, and the trustee has not been served notice of the filing of any action to enjoin the power of sale procedure.

(4) a claim of lien, together with all amendments and assignments, if any, is recorded in the public records of the county in which the timeshare estate is located when an assessment lien is to be foreclosed.

(5) the trustee has sent written notice of default and intent to sell the timeshare estate to the obligor's and junior interest holder's notice addresses as required by Section 27-32-330 with a statement in conspicuous type in substantially the following form:

'If you fail to cure the default or take other appropriate action with regard to this matter within thirty calendar days after the date of this notice, you will risk losing your interest in this timeshare estate through a nonjudicial foreclosure procedure. However, under the nonjudicial procedure, you will not be subject to a deficiency judgment or personal liability even if the sale of your timeshare estate resulting from the nonjudicial foreclosure is insufficient to satisfy the amount in which you are in debt. You may object to the sale of your timeshare estate through the nonjudicial foreclosure procedure and require foreclosure of your timeshare interest to proceed through the judicial process. Such an objection must be made in writing and received by the trustee before the end of the thirty-day time period. You must state the reason for your objection and include your address on the written objection. In a judicial foreclosure proceeding that results from your objection, you may be subject to a deficiency judgment and personal liability if the sale of your timeshare estate resulting from the judicial foreclosure is insufficient to satisfy the amount in which you are in debt. Furthermore, you also may be subject to a personal money judgment for the costs and attorney's fees incurred by your mortgagee or by the managing entity, as applicable, in the judicial foreclosure proceeding if the court finds that there is a complete absence of a justifiable issue of either law or fact raised by your objections or defenses. You have the right to cure your default at any time before the sale of your timeshare estate by payment of all past due loan payments or assessments, accrued interest, late fees, taxes, and all fees and costs incurred by the lienholder and trustee, including attorney's fees and costs, in connection with the default.'

(6) A period of at least thirty calendar days has elapsed since the sending of the notice of default and intent to sell by the trustee without receipt by the trustee of a written objection to the sale.

(a) If the trustee receives a written objection to the sale from the obligor setting forth a specific objection to a sale of the timeshare estate by the trustee, the trustee may not proceed under this article. When a trustee is prohibited from proceeding under this article the lienholder is required to file a foreclosure action as provided in Article 7, Chapter 3, Title 29.

(b) If the court determines that there was a complete absence of justifiable issues of either law or fact raised by the objection received by the trustee under this section or the defenses raised in the subsequent judicial foreclosure proceeding, the lienholder is entitled to entry of a separate personal judgment against the obligor for reasonable attorney's fees and costs incurred by the mortgagee or managing entity, as applicable, in the judicial foreclosure action.

(7) The notice of sale required by Section 27-32-335 has been recorded in the public records of the county in which the timeshare estate is located.

Section 27-32-330. (A) In any foreclosure proceeding under this article, the trustee is required to notify the obligor including persons in this State, outside of this State, or in foreign countries by delivering a written notice of default and intent to sell under Section 27-32-325 to the notice addresses of the obligor and junior interest holder, as applicable, by certified or registered mail, as follows:

(1) The trustee must place a copy of the notice of default and intent to sell in a sealed envelope with adequate postage addressed to the obligor, including the record owner of the timeshare estate, if different, and the junior interest holder.

(2) The envelope must be placed in the mail as certified or registered mail, return receipt requested.

(3) Notice under this section is considered perfected upon the signing of the return receipt by a person at the notice address.

(B) If the certified or registered mail which is sent as provided in subsection (A) is returned with an endorsement or stamp showing 'refused', the trustee may send the notice by first class mail to the notice address. The failure to claim certified or registered mail is not refusal of notice within the meaning of this subsection. Notice pursuant to this subsection must be delivered as follows:

(1) The trustee must place a copy of the notice of default and intent to sell in a sealed envelope with adequate postage addressed to the obligor and junior interest holder;

(2) The envelope must be mailed by first class mail with the return address of the trustee on the envelope;

(3) Notice under this subsection is considered perfected upon the mailing of the envelope.

(C) If notice is perfected under subsection (A), the trustee must file an affidavit setting forth the manner of notice as part of the certificate of compliance set forth in Section 27-32-340. The affidavit must state the nature of the process, the date on which the process was mailed by certified or registered mail, the name and address on the envelope containing the notice, the fact that the notice was mailed certified or registered mail, return receipt requested, the name of the person who signed the return receipt if known, and the basis for that knowledge. The return receipt from the certified or registered mail must be attached to the affidavit.

(D) If notice is perfected under subsection (B), the trustee must file an affidavit setting forth the manner of notice as part of the certificate of compliance set forth in Section 27-32-340. The affidavit must state the nature of the notice, the date on which the notice was mailed by certified or registered mail, the name and address on the envelope containing the notice, the fact that the notice was mailed certified or registered mail and was returned with the endorsement or stamped 'refused', the date if known on which the notice was 'refused', the date on which the notice was mailed by first class mail, the name and address on the envelope containing the notice that was mailed by first class mail, and the fact that the notice was mailed by first class mail with the return address of the trustee on the envelope. The return envelope from the attempt to mail notice by certified or registered mail and the return envelope, if any, from the attempt to mail the envelope by first class mail must be attached to the affidavit.

(E) If the trustee is unable to perfect notice pursuant to either subsection (A) or subsection (B) because the copy of the notice mailed by certified or registered mail is returned by the United States Post Office as 'undeliverable' or for any other reason and if by a diligent search and inquiry the trustee cannot obtain a different address for the obligor with which the trustee must repeat the mailing required by subsection (A), the trustee may perfect notice by publication in a newspaper of general circulation in the county in which the timeshare estate is located, once a week for two successive weeks, and by delivery of a copy of the notice to the obligor by first class mail to the notice address of the obligor and to any other address of the obligor obtained through the trustee's diligent search and inquiry. If notice is perfected by publication under this subsection, the trustee must attach an affidavit of publication to the certificate of compliance set forth in Section 27-32-340 and must state that the notice was perfected by publication after diligent search and inquiry was made for the obligor's address, attaching the returned envelope with the notation from the United States Post Office. No other action of the trustee is necessary to perfect notice. If the diligent search and inquiry has produced a different address than the notice address, such address may then be used in lieu of the notice address of the obligor for subsequent mailings required under this article.

Section 27-32-335. (A) The notice of sale must set forth:

(1) the names and notice addresses of the obligor including the record owner of the timeshare estate if different, and the junior interest holders;

(2) the name and address of the trustees;

(3) a description of the existence of a default under the mortgage, the timeshare instrument, or applicable law;

(4) the official record book and page numbers where the mortgage or the claim of lien is recorded;

(5) the legal description of the timeshare estate;

(6) the amount secured by the mortgage or the assessment lien, accrued interest, and late charges as of the date of notice of sale and including a per diem amount to account for further accrual of interest and late charges, advances for the payment of taxes, insurance, and maintenance of the timeshare estate, and cost of the sale including a title search fee and reasonable trustee's and attorney's fees and costs;

(7) a statement of the trustee's attention to sell the timeshare estate to satisfy the obligation;

(8) the date, time, and place of sale to be held after 9:00 a.m. and before 4:00 p.m. on a regular business day not less than thirty days after the recording of the notice of sale.

The right of the obligor to cure the default or the right of the junior interest holder to redeem its interest continues up to the date the trustee issues the certificate of sale in accordance with Section 27-32-345.

(B) The trustee must send a copy of the notice of sale on the date it is submitted for recording, by first class mail, postage prepaid, to the notice addresses of the obligor and the junior interest holder. In addition, a copy of the notice of sale must be sent by certified or registered mail to the lienholder.

(C) Except as provided in this article, no notice is required to be given to any person claiming an interest subsequent to the recording of the notice of sale as set forth in this section. The recording of the notice of sale shall have the same force and effect as the filing of a lis pendens in a judicial proceeding.

(D) The trustee must publish the notice of sale in a newspaper of general circulation in the county in which the sale is to be held once a week for two consecutive weeks prior to the date of the sale. The last publication must occur at least five days prior to the sale.

Section 27-32-340. (A) On the date the trustee conducts a sale, the trustee must execute a duly acknowledged certificate of compliance and must record the certificate of compliance in the public records of the county in which the timeshare estate is located.

(B) In the certificate of compliance, the trustee must:

(1) set forth the manner of delivery of the notice of default and intent to sell under Section 27-32-330 with the required affidavit, state that the notice contained the conspicuous language required by Section 27-32-325, state that the default was not cured and the timeshare estate was not redeemed, and state that the trustee did not receive any written objection within the period required under Section 27-32-325.

(2) confirm that the notice of sale was published as required by subsection (D) of Section 27-32-335 and attach an affidavit of publication for the notice of sale.

(3) confirm that the notice of sale was mailed pursuant to Section 27-32-335 together with a list of the parties to whom the notice of sale was mailed and the address used for each such party.

(C) In furtherance of the execution and recording of the certificate of compliance required pursuant to this section, the trustee is entitled to rely upon an affidavit or certification from the lienholder as to the facts and circumstances of default and failure to curb the default.

Section 27-32-345. (A) The sale of a timeshare estate by public auction must be held on the date and at the time and place designated in the notice of sale, provided such auction must take place in the county in which the timeshare estate is located.

(B) Any person, including the lienholder, may bid at the sale. The trustee may bid for the lienholder but not for himself or herself. The attorney for the trustee may conduct the sale and may act at the sale as the auctioneer for the trustee.

(C) The person conducting the sale may postpone the sale from time to time. In every such case, notice of postponement shall be given by oral public proclamation thereof by such person at the time and place last appointed for the sale. The notice of sale regarding the postponed sale must be mailed and recorded pursuant to Section 27-32-330. The effective date of the initial notice of sale for purposes of Section 27-32-330 shall not be affected by a postponed sale.

(D) The buyer must pay in cash or certified funds at the day of sale the price bid to the trustee or to the attorney for the trustee acting as the auctioneer. The lienholder must receive a credit on its bid for the amount set forth in the notice of sale as required by Section 27-32-330.

(E) Upon the issuance of the trustee's deed, the buyer at the sale is entitled to possession and use of the timeshare estate in accordance with the timeshare instrument. Any other person thereafter claiming possession of the timeshare estate shall be deemed to be a tenant at sufferance, and the buyer be entitled, upon application to a court of competent jurisdiction, to a writ of possession.

(F) On the date of the sale and upon receipt of the amount bid, the trustee must issue to the buyer a certificate of sale stating that a foreclosure conforming to the requirements of this article has occurred, including the time, place, and date of the sale, that the property was sold, the amount of the mortgage lien or the assessment lien, as applicable, the amount of the purchase price, and the name and address of the successful bidder. A copy of the certificate of sale must be mailed by certified or registered mail, postage prepaid, to all persons entitled to receive a notice of sale under Section 27-32-330.

Section 27-32-350. (A) A sale conducted by a trustee or the attorney for the trustee shall foreclose and terminate all interest in the timeshare estate of all persons to whom notice is given under Sections 27-32-325 and 27-32-330 and of any other person claiming by, through, or under such person. The assessment lien or mortgage lien does not merge into the trustee's deed to any extent that a subsequent judicial foreclosure or reforeclosure of the assessment lien or mortgage lien under this article becomes necessary or is required. A failure to give notice to any person entitled to notice shall not affect the validity of the sale as to persons notified. A person entitled to notice but not given notice shall have the rights of a person not made a defendant in a judicial foreclosure. Any subsequent foreclosure required by failure to notify a party under Section 27-32-330 may be conducted under this article.

(B) On the issuance of a certificate of sale pursuant to Section 27-32-345, all rights of redemption foreclosed pursuant to this article shall terminate.

(C) The lienholder shall have no right to any deficiency judgment against the obligor after a sale of the obligor's timeshare estate under this article as to the obligation foreclosed on.

(D) The validity of the sale is presumed upon the recording of the certificate of compliance and issuance of the certificate of sale.

Section 27-32-355. Ten days after a sale, absent the filing and service on the trustee of a judicial action to enjoin issuance of the trustee's deed to the timeshare estate or objecting to the sale on the grounds that the requirements of this article were not met by the trustee, the trustee must issue a trustee's deed to the purchaser at the sale. Such deed shall be recorded in the public records of the county in which the timeshare estate is located.

Section 27-32-360. (A) The trustee must apply the proceeds of the sale as follows:

(1) to the expenses of the sale, including compensation of the trustee and a reasonable fee by the trustee's attorney, if applicable;

(2) to the amount owed set forth in the notice as required by Section 27-32-335;

(3) to all junior interest holders as their liens or interests may appear of record in the order of priority;

(4) the surplus, if any, to an obligor entitled to such surplus.

(B) In disposing of the proceeds of sale, the trustee may rely on the information provided in the public records as to the claims of junior interest holders and, in the event of a dispute or uncertainty over such claims, the trustee shall have the discretion to submit the matter to adjudication by court, by interpleader, or otherwise. All costs and fees, including attorney's fees and costs, of adjudication must be paid out of the proceeds of sale after payment of the amounts required to be paid by subparagraphs (1) and (2) of subsection (A).

Section 27-32-365. (A) The trustee's deed must include the name and address of the trustee, the name and address of the buyer, the name of the obligor, including the owner of the timeshare estate on the date of the recordation of the notice of sale, and the name and address of the preparer of the trustee's deed. The trustee's deed must recite that the certificate of compliance was recorded and the regular conduct of a sale and shall contain no warranties of title from the trustee.

(B) Upon the recording of the trustee's deed, the certificate of compliance and trustee's deed together shall be conclusive evidence of the truth of the matters set forth therein.

(C) The trustee's deed shall convey to the purchaser all right, title, and interest in the timeshare estate that the owner had, or had the power to convey, at the time of the execution of the mortgage or recording of the claim of lien together with all right, title, and interest in the owner or his successors in interest acquired after the execution of the mortgage or recording of the claim of lien.

(D) If an action is filed based on any claim that the trustee failed to follow the procedures in this article or that the sale was otherwise improper, it shall be presumed that the trustee was acting solely as the agent of the lienholder, and any liability resulting therefrom is the sole responsibility of the mortgagee or managing entity and not the trustee.

Section 27-32-370. (A) The procedures set forth in this article shall not impair or otherwise affect the continuing right to bring a judicial action to foreclose a mortgage lien or claim of lien regardless of whether such mortgage or the timeshare instrument, as the case may be, provides a trustee with a power of sale.

(B) Nothing in this article shall be construed to impair the right of any person to assert his or her legal and equitable rights in a court of competent jurisdiction; however, no such action may be pursued to set aside a sale or void a trustee's deed subsequent to the recordation of the trustee's deed.

(C) The procedures in this article shall be given effect in the context of any reference to judicial foreclosure proceedings or procedures set forth in this chapter.

(D) If any provision of this article or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this article which can be given effect without the invalid provision or application. To this end, the provisions of this article are declared severable.

(E) The division has no authority to regulate, enforce, or ensure compliance with any provision of this article.

(F) Notwithstanding anything to the contrary, a managing entity shall release the address of the owner of a timeshare estate to a lienholder who can demonstrate that the timeshare estate is subject to an assessment lien or a mortgage lien held by such lienholder. Such information may be used by the lienholder solely for purposes of complying with the foreclosure procedures described in this article."

SECTION 2. Sections 27-32-10 through 27-32-250 of the 1976 Code are designated as Article 1 of Chapter 32, Title 27, and entitled "Vacation Time Sharing Plans".

SECTION 3. This act takes effect upon approval by the Governor.

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