Senate Bill sb1932
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2007 SB 1932
By Senator Oelrich
14-781-07
1 A bill to be entitled
2 An act relating to service of process; amending
3 s. 48.021, F.S.; providing that criminal
4 witness subpoenas and criminal summonses may be
5 served by a special process server appointed by
6 the local sheriff or by a certified process
7 server; amending s. 56.041, F.S.; providing
8 that all unsatisfied executions in the
9 possession of the sheriff docketed before
10 October 1, 2001, may be returned to the issuing
11 court; amending s. 56.21, F.S.; requiring the
12 submission of an affidavit before levying a
13 judgment upon real property; requiring the
14 sheriff to furnish to the judgment debtor or
15 the debtor's attorney of record a copy of the
16 notice of sale, notice of levy, and affidavit
17 within a specified period before execution of a
18 sale or levy; amending s. 56.27, F.S.;
19 requiring that priority of liens on real
20 property be based on the effective date of the
21 judgment lien; requiring a levying creditor to
22 deliver to the sheriff at the time of the levy
23 request an affidavit setting forth certain
24 information and attestations; amending ss.
25 741.30 and 784.046, F.S., relating to service
26 of process in cases of domestic violence or
27 sexual abuse; authorizing clerks of court to
28 transmit facsimile copies of previously
29 certified injunctions to sheriffs upon request;
30 requiring sheriffs to verify receipt of
31 facsimile copies of injunctions with clerks of
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2007 SB 1932
14-781-07
1 court before attempting service; authorizing
2 law enforcement officers to serve facsimile
3 copies of injunctions in the same manner as
4 certified copies; providing an effective date.
5
6 Be It Enacted by the Legislature of the State of Florida:
7
8 Section 1. Subsection (1) of section 48.021, Florida
9 Statutes, is amended to read:
10 48.021 Process; by whom served.--
11 (1) All process shall be served by the sheriff of the
12 county where the person to be served is found, except initial
13 nonenforceable civil process, criminal witness subpoenas, and
14 criminal summonses may be served by a special process server
15 appointed by the sheriff as provided for in this section or by
16 a certified process server as provided for in ss. 48.25-48.31.
17 Civil witness subpoenas may be served by any person authorized
18 by rules of civil procedure.
19 Section 2. Subsection (2) of section 56.041, Florida
20 Statutes, is amended to read:
21 56.041 Executions; collection and return.--
22 (2) All unsatisfied executions in the hands of the
23 sheriff docketed before October 1, 2001, or 20 years after the
24 date of issuance of final judgment upon which the execution
25 was issued may be returned, to the court issuing the
26 execution, 20 years after the date of issuance of final
27 judgment upon which the execution was issued. Upon such
28 return, the clerk of the court of issuance shall provide a
29 receipt, to the sheriff submitting the return, acknowledging
30 the return of the unsatisfied execution.
31
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2007 SB 1932
14-781-07
1 Section 3. Section 56.21, Florida Statutes, is amended
2 to read:
3 56.21 Execution sales; notice.--Notice of all sales
4 under execution shall be given by advertisement once each week
5 for 4 successive weeks in a newspaper published in the county
6 in which the sale is to take place. The time of such notice
7 may be shortened in the discretion of the court from which the
8 execution issued, upon affidavit that the property to be sold
9 is subject to decay and will not sell for its full value if
10 held until date of sale. On or before the date of the first
11 publication or posting of the notice of sale, a copy of the
12 notice of sale shall be furnished by the sheriff by certified
13 mail to the attorney of record of the judgment debtor, or to
14 the judgment debtor at the judgment debtor's last known
15 address if the judgment debtor does not have an attorney of
16 record. Such copy of the notice of sale shall be mailed even
17 though a default judgment was entered. When levying upon real
18 or personal property, a notice of such levy and execution sale
19 and a copy of the affidavit required by s. 56.27(4) shall be
20 sent by the sheriff to the attorneys of record of all judgment
21 creditors, or to all judgment creditors who do not have an
22 attorney of record, who have acquired a judgment lien as
23 provided in s. 55.10(1) and (2), s. 55.202, or s. 55.204(3),
24 and whose liens have not lapsed at the time of levy, at the
25 address listed in the judgment lien certificate, or, if
26 amended, in any amendment to the judgment lien certificate,
27 and to all secured creditors who have filed financing
28 statements as provided in part V of chapter 679 in the name of
29 the judgment debtor reflecting a security interest in property
30 of the kind to be sold at the execution sale at the address
31 listed in the financing statement, or, if amended, in any
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2007 SB 1932
14-781-07
1 amendment to the financing statement. Such notice shall be
2 made in the same manner as notice is made to any judgment
3 debtor under this section. When levying upon real property,
4 notice of such levy and execution sale and affidavit required
5 by s. 56.27(4) shall be made to the property owner of record
6 in the same manner as notice is made to any judgment debtor
7 pursuant to this section. When selling real or personal
8 property, the sale date shall not be earlier than 30 days
9 after the date of the first advertisement.
10 Section 4. Subsections (1), (2), and (4) of section
11 56.27, Florida Statutes, are amended to read:
12 56.27 Executions; payment of money collected.--
13 (1) All money received under executions shall be paid,
14 in the order prescribed, to the following: the sheriff, for
15 costs; the levying creditor in the amount of $500 as
16 liquidated expenses; and if the levy is upon real property,
17 the first priority lienholder under s. 55.10(1) and (2), s.
18 55.10; and if the levy is upon personal property, the first
19 priority lienholder under s. 55.202, s. 55.204(3), or s.
20 55.208(2), as set forth in an affidavit required by subsection
21 (4), or his or her attorney, in satisfaction of the judgment
22 lien, if provided that the judgment lien has not lapsed at the
23 time of the levy. The receipt of the attorney shall be a
24 release of the officer paying the money to him or her. If When
25 the name of more than one attorney appears in the court file,
26 the money shall be paid to the attorney who originally
27 commenced the action or who made the original defense unless
28 the file shows that another attorney has been substituted.
29 (2) If When property sold under execution brings more
30 than the amount needed to satisfy the provisions of subsection
31 (1), the surplus shall be paid in the order of priority to any
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2007 SB 1932
14-781-07
1 judgment lienholders whose judgment liens have not lapsed.
2 Priority of liens on personal property shall be based on the
3 effective date of the judgment lien acquired under s. 55.202,
4 s. 55.204(3), or s. 55.208(2), as set forth in an affidavit
5 required under subsection (4). Priority of liens on real
6 property shall be based on the effective date of the judgment
7 lien acquired under s. 55.10(1) and (2), as set forth in an
8 affidavit required under subsection (4). If there is a surplus
9 after all valid judgment liens and execution liens have been
10 satisfied, the surplus must be paid to the defendant.
11 (4) Before the date of the first publication or
12 posting of the notice of sale provided for under s. 56.21, at
13 the time of the levy request to the sheriff, the levying
14 creditor shall deliver to the sheriff an affidavit setting
15 forth all of the following as to the judgment debtor:
16 (a) For a personal property levy, an attestation by
17 that the levying creditor or the creditor's attorney of record
18 that he or she has reviewed the database or judgment lien
19 records established in accordance with ss. 55.201-55.209 and
20 that the information contained in the affidavit based on that
21 review is true and correct. For real property levy in
22 accordance with s. 55.10(1) and (2), an attestation by the
23 levying creditor or his or her attorney of record that he or
24 she has reviewed the records of the clerk of court of the
25 county where the property is situated, or that he or she has
26 performed a title search, and that the information contained
27 in the affidavit based on that review or title search is true
28 and correct.;
29 (b) The information required under s. 55.203(1) and
30 (2) for each judgment lien certificate indexed under the name
31 of the judgment debtor as to each judgment creditor; the file
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2007 SB 1932
14-781-07
1 number assigned to the record of the original and, if any, the
2 second judgment lien; and the date of filing for each judgment
3 lien certificate under s. 55.202 or s. 55.204(3). For real
4 property, the information contained in the certified copy of
5 recordation of lien pursuant to s. 55.10(1) and (2) for each
6 lien recorded on real property.; and
7 (c) A statement that the levying creditor either does
8 not have any other levy in process or, if another levy is in
9 process, the levying creditor believes in good faith that the
10 total value of the property under execution does not exceed
11 the amount of outstanding judgments.
12 Section 5. Paragraph (a) of subsection (8) of section
13 741.30, Florida Statutes, is amended to read:
14 741.30 Domestic violence; injunction; powers and
15 duties of court and clerk; petition; notice and hearing;
16 temporary injunction; issuance of injunction; statewide
17 verification system; enforcement.--
18 (8)(a)1. The clerk of the court shall furnish a copy
19 of the petition, financial affidavit, Uniform Child Custody
20 Jurisdiction and Enforcement Act affidavit, if any, notice of
21 hearing, and temporary injunction, if any, to the sheriff or a
22 law enforcement agency of the county where the respondent
23 resides or can be found, who shall serve it upon the
24 respondent as soon thereafter as possible on any day of the
25 week and at any time of the day or night. When requested by
26 the sheriff, the clerk of court may transmit a facsimile copy
27 of an injunction that has been certified by the clerk of
28 court, and this facsimile copy may be served in the same
29 manner as a certified copy. Upon receiving a facsimile copy,
30 the sheriff must verify receipt with the sender before
31 attempting to serve it upon the respondent. In addition, if
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2007 SB 1932
14-781-07
1 the sheriff is in possession of an injunction for protection
2 that has been certified by the clerk of court, the sheriff may
3 transmit a facsimile copy of that injunction to a law
4 enforcement officer who shall serve it in the same manner as a
5 certified copy. The clerk of the court shall be responsible
6 for furnishing to the sheriff such information on the
7 respondent's physical description and location as is required
8 by the department to comply with the verification procedures
9 set forth in this section. Notwithstanding any other provision
10 of law to the contrary, the chief judge of each circuit, in
11 consultation with the appropriate sheriff, may authorize a law
12 enforcement agency within the jurisdiction to effect service.
13 A law enforcement agency serving injunctions pursuant to this
14 section shall use service and verification procedures
15 consistent with those of the sheriff.
16 2. When an injunction is issued, if the petitioner
17 requests the assistance of a law enforcement agency, the court
18 may order that an officer from the appropriate law enforcement
19 agency accompany the petitioner and assist in placing the
20 petitioner in possession of the dwelling or residence, or
21 otherwise assist in the execution or service of the
22 injunction. A law enforcement officer shall accept a copy of
23 an injunction for protection against domestic violence,
24 certified by the clerk of the court, from the petitioner and
25 immediately serve it upon a respondent who has been located
26 but not yet served.
27 3. All orders issued, changed, continued, extended, or
28 vacated subsequent to the original service of documents
29 enumerated under subparagraph 1., shall be certified by the
30 clerk of the court and delivered to the parties at the time of
31 the entry of the order. The parties may acknowledge receipt
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2007 SB 1932
14-781-07
1 of such order in writing on the face of the original order.
2 In the event a party fails or refuses to acknowledge the
3 receipt of a certified copy of an order, the clerk shall note
4 on the original order that service was effected. If delivery
5 at the hearing is not possible, the clerk shall mail certified
6 copies of the order to the parties at the last known address
7 of each party. Service by mail is complete upon mailing.
8 When an order is served pursuant to this subsection, the clerk
9 shall prepare a written certification to be placed in the
10 court file specifying the time, date, and method of service
11 and shall notify the sheriff.
12
13 If the respondent has been served previously with the
14 temporary injunction and has failed to appear at the initial
15 hearing on the temporary injunction, any subsequent petition
16 for injunction seeking an extension of time may be served on
17 the respondent by the clerk of the court by certified mail in
18 lieu of personal service by a law enforcement officer.
19 Section 6. Paragraph (a) of subsection (8) of section
20 784.046, Florida Statutes, is amended to read:
21 784.046 Action by victim of repeat violence, sexual
22 violence, or dating violence for protective injunction; powers
23 and duties of court and clerk of court; filing and form of
24 petition; notice and hearing; temporary injunction; issuance;
25 statewide verification system; enforcement.--
26 (8)(a)1. The clerk of the court shall furnish a copy
27 of the petition, notice of hearing, and temporary injunction,
28 if any, to the sheriff or a law enforcement agency of the
29 county where the respondent resides or can be found, who shall
30 serve it upon the respondent as soon thereafter as possible on
31 any day of the week and at any time of the day or night. When
8
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2007 SB 1932
14-781-07
1 requested by the sheriff, the clerk of court may transmit a
2 facsimile copy of an injunction that has been certified by the
3 clerk of court, and this facsimile copy may be served in the
4 same manner as a certified copy. Upon receiving a facsimile
5 copy, the sheriff must verify receipt with the sender before
6 attempting to serve it upon the respondent. In addition, if
7 the sheriff is in possession of an injunction for protection
8 that has been certified by the clerk of court, the sheriff may
9 transmit a facsimile copy of that injunction to a law
10 enforcement officer who shall serve it in the same manner as a
11 certified copy. The clerk of the court shall be responsible
12 for furnishing to the sheriff such information on the
13 respondent's physical description and location as is required
14 by the department to comply with the verification procedures
15 set forth in this section. Notwithstanding any other provision
16 of law to the contrary, the chief judge of each circuit, in
17 consultation with the appropriate sheriff, may authorize a law
18 enforcement agency within the chief judge's jurisdiction to
19 effect this type of service and to receive a portion of the
20 service fee. No person shall be authorized or permitted to
21 serve or execute an injunction issued under this section
22 unless the person is a law enforcement officer as defined in
23 chapter 943.
24 2. When an injunction is issued, if the petitioner
25 requests the assistance of a law enforcement agency, the court
26 may order that an officer from the appropriate law enforcement
27 agency accompany the petitioner and assist in the execution or
28 service of the injunction. A law enforcement officer shall
29 accept a copy of an injunction for protection against repeat
30 violence, sexual violence, or dating violence, certified by
31 the clerk of the court, from the petitioner and immediately
9
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2007 SB 1932
14-781-07
1 serve it upon a respondent who has been located but not yet
2 served.
3 Section 7. This act shall take effect October 1, 2007.
4
5 *****************************************
6 SENATE SUMMARY
7 Provides that criminal witness subpoenas and criminal
summonses may be served by a special process server
8 appointed by the local sheriff. Provides that all
unsatisfied executions in the possession of the sheriff
9 docketed before a specified date may be returned to the
issuing court. Requires the submission of an affidavit
10 when levying a judgment upon real property. Requires the
sheriff to furnish certain items to the judgment debtor
11 or the debtor's attorney of record within a specified
period before execution of a sale or levy. Requires that
12 priority of liens on real property be based on the
effective date of the judgment lien. Requires a levying
13 creditor to deliver to the sheriff at the time of the
levy request an affidavit setting forth certain
14 information and attestations. Authorizes clerks of court
to transmit facsimile copies of previously certified
15 injunctions to sheriffs upon request. Requires sheriffs
to verify receipt of facsimile copies of injunctions for
16 protection against violence with clerks of court before
attempting service. Authorizes law enforcement officers
17 to serve facsimile copies of injunctions in the same
manner as certified copies.
18
19
20
21
22
23
24
25
26
27
28
29
30
31
10
CODING: Words stricken are deletions; words underlined are additions.