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 a provision of the mortgage, the timeshare instrument, or applicable law which authorizes foreclosure in the event of default;
(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) if an assessment lien is to be foreclosed, 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;
(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 the following statement in conspicuous type:
"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 for the lien being foreclosed even if the sale of your timeshare estate resulting from the nonjudicial foreclosure is insufficient to satisfy the amount of the lien being foreclosed. 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. 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 for the lien being foreclosed if the sale of your timeshare estate resulting from the judicial foreclosure is insufficient to satisfy the amount of the lien being foreclosed. Furthermore, you also may be subject to a personal money judgment for the costs and attorney's fees incurred by the lienholder 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) the default being foreclosed, mortgage lien, assessment lien, or both, is clearly identified in the written notice required in item (5);
(7) 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 of Chapter 3 of 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;
(8) 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.
HISTORY: 2000 Act No. 262, Section 1.