1997 Florida Code
TITLE XL REAL AND PERSONAL PROPERTY
Chapter 697 Instruments Deemed Mortgages And The Nature Of A Mortgage  
697.205   Recoveries from the trust fund.

697.205  Recoveries from the trust fund.--

(1)

(a)  Any person is eligible to seek recovery from the Home Equity Conversion Mortgage Guaranty Fund if:

1.  Such person was the mortgagee of a home equity conversion mortgage which was foreclosed upon termination, and the proceeds from the foreclosure sale were insufficient to repay the full loan amount due;

2.  Such person has caused to be issued a writ of execution upon a decree rendered pursuant to chapter 702, and the officer executing the writ has made a return showing that no real or personal property of the judgment debtor can be found which is liable to be levied upon in satisfaction of the decree or that the amount realized on the sale of the judgment debtor's property pursuant to such execution was insufficient to satisfy the judgment;

3.  Such person has made all searches and inquiries which are reasonable to ascertain whether the judgment debtor possesses real or personal property or other assets subject to being sold or applied in satisfaction of the judgment, and such person through her or his search has discovered no property or assets or has discovered property and assets and taken all necessary action and proceedings for the application of such property and assets in satisfaction of the judgment but the amounts thereby realized were insufficient to satisfy the judgment;

4.  Such person has applied any amounts recovered from the judgment debtor, or from any other source, to the deficiency decree; or

5.  The mortgage on which recovery is sought was insured pursuant to s. 697.204 prior to July 1, 1993.

(b)  Any person who meets all of the conditions prescribed in subsection (1) may apply to the department for payment to be made to such person from the Home Equity Conversion Mortgage Guaranty Fund in an amount equal to the unsatisfied portion of such person's deficiency decree. In no event shall such amount exceed the difference between the amount of the proceeds from a foreclosure sale and the loan amount due, including principal and interest.

(c)  Upon receipt by the mortgagee of the payment from the Home Equity Conversion Mortgage Guaranty Fund, the mortgagee shall assign to the department any additional right, title, and interest in the judgment, to the extent of such payment.

(2)

1(a)  In the event that a search is made by the mortgagee to determine all of the debtor's real and personal property which may be applied towards payment of the debt and it is determined that foreclosure of the home equity conversion mortgage would not result in recovering any significant additional assets of the debtor which may be used to satisfy the mortgage, the mortgagee may still be able to recover from the fund without having to foreclose, provided that such mortgage was insured pursuant to s. 697.204 prior to July 1, 1993.

(b)  Any person who meets all of the conditions set by rule for recovery under this subsection may apply to the department for payment to be made to such person from the Home Equity Conversion Mortgage Guaranty Fund in an amount equal to the maximum recovery as provided herein.

History.--s. 4, ch. 84-251; s. 44, ch. 85-62; s. 2, ch. 85-162; s. 4, ch. 86-267; s. 3, ch. 87-84; s. 56, ch. 95-211; s. 778, ch. 97-102.

1Note.--Section 4, ch. 86-267, purported to amend "paragraph (a) of subsection (2)," but did not set out in full the amended paragraph to include subparagraphs 1. and 2. Because their omission is not otherwise supported by affirmative evidence that the Legislature intended to repeal subparagraphs 1. and 2., the subparagraphs are set out as follows for reference purposes, pending clarification by further action by the Legislature:

1.  Such recovery shall be provided for by rule promulgated pursuant to s. 697.203; shall be conditioned on the mortgagee acquiring the mortgaged property by deed; and shall be based on a reasonable appraised value of the property. The rules promulgated for such recovery shall include provisions for requiring the mortgagee to determine the total assets of the debtor; provisions for determining whether foreclosure would result in recovering any additional assets of the debtor which may be used to satisfy the mortgage; and provisions for determining what constitutes a reasonable appraised value of the property.

2.  The maximum recovery to be allowed by this section shall be the difference between the loan amount due, including principal and interest, and the appraised value of the property.