Florida Senate - 2016                             CS for SB 1042
       
       
        
       By the Committee on Judiciary; and Senator Simmons
       
       590-02069-16                                          20161042c1
    1                        A bill to be entitled                      
    2         An act relating to judgments; creating s. 56.0101,
    3         F.S.; providing definitions for purposes of ch. 56,
    4         F.S.; amending s. 56.011, F.S.; revising terminology;
    5         amending s. 56.021, F.S.; providing that an execution
    6         is valid and effective during the life of the order on
    7         which it is issued; amending ss. 56.041, 56.071,
    8         56.09, 56.10, 56.12, and 56.15, F.S.; revising
    9         terminology; amending s. 56.16, F.S.; specifying that
   10         persons to whom a Notice to Appear has been issued may
   11         obtain possession of property levied on by complying
   12         with certain procedures; revising terminology;
   13         amending s. 56.18, F.S.; specifying that a jury, if
   14         not waived, should be empaneled as soon as possible
   15         after service of a Notice to Appear; revising
   16         terminology; amending ss. 56.19, 56.20, 56.22, 56.26,
   17         56.27, and 56.28, F.S.; revising terminology; amending
   18         s. 56.29, F.S.; revising terminology; providing for
   19         the issuance of a Notice to Appear; providing
   20         requirements for such a notice; providing for service;
   21         providing for requirements for a responding affidavit;
   22         deleting provisions relating to examinations
   23         concerning property; providing for fraudulent transfer
   24         claims; creating s. 56.30, F.S.; providing for
   25         discovery in proceedings supplementary; providing an
   26         effective date.
   27          
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. Section 56.0101, Florida Statutes, is created to
   31  read:
   32         56.0101 Definitions.—As used in this chapter, the term:
   33         (1) “Claimant” means any person other than the judgment
   34  debtor who claims any property levied on.
   35         (2) “Corporate judgment debtor” means a judgment debtor
   36  other than an individual, an estate, or a trust that is not a
   37  business trust.
   38         (3) “Judgment creditor” means the holder of an unsatisfied
   39  judgment, order, or decree for the payment of money, including a
   40  transferee or a surety having the right to control and collect
   41  the judgment under s. 55.13.
   42         (4) “Judgment debtor” means each person who is liable on a
   43  judgment, an order, or a decree subject to execution under this
   44  chapter.
   45         (5) “Levying creditor” means the levying judgment creditor.
   46         (6) “Person” means an individual, partnership, corporation,
   47  association, organization, government or governmental
   48  subdivision or agency, business trust, estate, trust, or any
   49  other legal or commercial entity.
   50         (7) “Relative” means an individual related by consanguinity
   51  within the third degree as determined by the common law, a
   52  spouse, or an individual related to a spouse within the third
   53  degree as determined by the common law, and includes an
   54  individual in an adoptive relationship within the third degree.
   55         Section 2. Section 56.011, Florida Statutes, is amended to
   56  read:
   57         56.011 Executions; capias ad satisfaciendum abolished.—In
   58  no case shall A capias ad satisfaciendum may not be issued upon
   59  a judgment, nor may shall the body of any person defendant be
   60  subject to arrest or confinement for the payment of money,
   61  except it be for fines imposed by lawful authority.
   62         Section 3. Section 56.021, Florida Statutes, is amended to
   63  read:
   64         56.021 Executions; issuance and return, alias, etc.—When
   65  issued, an execution is valid and effective during the life of
   66  the judgment, order, or decree on which it is issued. When fully
   67  paid, the officer executing it shall make his or her return and
   68  file it in the court which issued the execution. If the
   69  execution is lost or destroyed, the party entitled thereto may
   70  have an alias, pluries or other copies on making proof of such
   71  loss or destruction by affidavit and filing it in the court
   72  issuing the execution.
   73         Section 4. Subsection (1) of section 56.041, Florida
   74  Statutes, is amended to read:
   75         56.041 Executions; collection and return.—
   76         (1) All executions shall be returnable when satisfied, and
   77  the officers to whom they are delivered shall collect the
   78  amounts thereof as soon as possible and shall furnish the
   79  judgment debtor defendant with a satisfaction of judgment. All
   80  receipts shall be endorsed on the execution.
   81         Section 5. Section 56.071, Florida Statutes, is amended to
   82  read:
   83         56.071 Executions on equities of redemption; discovery of
   84  value.—On motion made by the person party causing a levy to be
   85  made on an equity of redemption, the court from which the
   86  execution issued shall order the mortgagor, mortgagee, and all
   87  other persons interested in the mortgaged property levied on to
   88  appear and be examined about the amount remaining due on the
   89  mortgage, the amount that has been paid, the person party to
   90  whom that amount has been paid, and the date when that amount
   91  was paid so that the value of the equity of redemption may be
   92  ascertained before the property is sold. The court may appoint a
   93  general or special magistrate to conduct the examination. This
   94  section shall also apply to the interest of and personal
   95  property in possession of a vendee under a retained title
   96  contract or conditional sales contract.
   97         Section 6. Section 56.09, Florida Statutes, is amended to
   98  read:
   99         56.09 Executions against corporate judgment debtors
  100  corporations; generally.—On any judgment against a corporate
  101  judgment debtor, the judgment creditor corporation plaintiff may
  102  have an execution levied on the current money as well as on the
  103  goods and chattels, lands and tenements of the corporate
  104  judgment debtor said corporation.
  105         Section 7. Section 56.10, Florida Statutes, is amended to
  106  read:
  107         56.10 Executions against corporate judgment debtors
  108  corporations; receivership.—If an execution cannot be satisfied
  109  in whole or in part for lack of property of the corporate
  110  judgment debtor defendant corporation subject to levy and sale,
  111  on motion of the judgment creditor the circuit court in chancery
  112  within whose circuit such corporate judgment debtor corporation
  113  is or has been doing business, or in which any of its effects
  114  are found, may sequestrate the property, things in action, goods
  115  and chattels of the corporate judgment debtor corporation for
  116  the purpose of enforcing the judgment, and may appoint a
  117  receiver for the corporate judgment debtor corporation. A
  118  receiver so appointed is subject to the rules prescribed by law
  119  for receivers of the property of other judgment debtors. His or
  120  her power shall extend throughout the state.
  121         Section 8. Section 56.12, Florida Statutes, is amended to
  122  read:
  123         56.12 Executions; levy, forthcoming bond.—If a judgment
  124  debtor defendant in execution wants to retake possession of any
  125  property levied on, the judgment debtor he or she may do so by
  126  executing a bond with surety to be approved by the officer in
  127  favor of the judgment creditor plaintiff in a sum double the
  128  value of the property retaken as fixed by the officer holding
  129  the execution and conditioned that the property will be
  130  forthcoming on the day of sale stated in the bond.
  131         Section 9. Section 56.15, Florida Statutes, is amended to
  132  read:
  133         56.15 Executions; stay of illegal writs.—If any execution
  134  issues illegally, the judgment debtor defendant in execution may
  135  obtain a stay by making and delivering an affidavit to the
  136  officer having the execution, stating the illegality and whether
  137  any part of the execution is due, with a bond with surety
  138  payable to the judgment creditor plaintiff in double the amount
  139  of the execution or the part of which a stay is sought
  140  conditioned to pay the execution or part claimed to be illegal
  141  and any damages for delay if the affidavit is not well founded.
  142  On receipt of such affidavit and bond the officer shall stay
  143  proceedings on the execution and return the bond and affidavit
  144  to the court from which the execution issued. The court shall
  145  pass on the question of illegality as soon as possible. If the
  146  execution is adjudged illegal in any part, the court shall stay
  147  it as to the part but if it is adjudged legal in whole or in
  148  part, the court shall enter judgment against the principal and
  149  surety on such bond for the amount of so much of the execution
  150  as is adjudged to be legal and execution shall issue thereon.
  151         Section 10. Section 56.16, Florida Statutes, is amended to
  152  read:
  153         56.16 Executions; claims of third parties to property
  154  levied on.—If any person, including a person to whom a Notice to
  155  Appear has been issued pursuant to s. 56.29(2), other than the
  156  judgment debtor defendant in execution claims any property
  157  levied on, he or she may obtain possession of the property by
  158  filing with the officer having the execution an affidavit by the
  159  claimant, or the claimant’s himself or herself, his or her agent
  160  or attorney, that the property claimed belongs to the claimant
  161  him or her and by furnishing the officer a bond with surety to
  162  be approved by the officer in favor of the judgment creditor
  163  plaintiff in double the value of the goods claimed as the value
  164  is fixed by the officer and conditioned to deliver said property
  165  on demand of said officer if it is adjudged to be the property
  166  of the judgment debtor defendant in execution and to pay the
  167  judgment creditor plaintiff all damages found against the
  168  claimant him or her if it appears that the claim was interposed
  169  for the purpose of delay.
  170         Section 11. Section 56.18, Florida Statutes, is amended to
  171  read:
  172         56.18 Executions; trial of claims of third persons.—As soon
  173  as possible after the return, or after service of a Notice to
  174  Appear pursuant to s. 56.29(2), a jury, if not waived, shall be
  175  impaneled to try the right of property. If the verdict is in
  176  favor of the judgment creditor plaintiff and it appears that the
  177  claim brought pursuant to s. 56.16 was interposed for delay, the
  178  judgment creditor plaintiff may be awarded reasonable damages,
  179  not exceeding 20 percent of the value of the property claimed.
  180  If the claimant denies in writing under oath filed at least 3
  181  days before the trial, the correctness of the appraisement of
  182  the value of the property by the officer levying the execution,
  183  and the verdict is in favor of the judgment creditor plaintiff,
  184  the jury if not waived, shall fix the value of each item
  185  thereof, or of the items covered by such denial.
  186         Section 12. Section 56.19, Florida Statutes, is amended to
  187  read:
  188         56.19 Judgments upon claims of third persons.—Upon the
  189  verdict of the jury, the court shall enter judgment deciding the
  190  right of property, and if the verdict is for the judgment
  191  creditor plaintiff, awarding a recovery by the judgment creditor
  192  plaintiff from the claimant defendant and the claimant’s his or
  193  her sureties, of the value (as fixed by the officer, or as fixed
  194  by the jury if fixed by it) of such parts of the property as the
  195  jury may have found subject to execution that were delivered to
  196  the claimant, and awarding separately such damages as the jury
  197  may be have awarded under s. 56.18, and of all costs attending
  198  the presentation and trial of the claim.
  199         Section 13. Section 56.20, Florida Statutes, is amended to
  200  read:
  201         56.20 Executions on judgments against third person
  202  claimants.—If the execution issued on the judgment is not paid,
  203  it shall be satisfied in the usual manner unless on demand of
  204  the officer holding it, the principal and surety in the claim
  205  bond deliver the property released under the claim bond to the
  206  officer and pay him or her the damages and costs awarded to the
  207  judgment creditor plaintiff. If the property is returned to the
  208  officer but damages and costs are not paid, execution shall be
  209  enforced for the damages and costs. If part of the property is
  210  returned to the officer, the execution shall be enforced for the
  211  value, fixed as aforesaid, of that not returned. All property
  212  returned shall be sold under the original execution against the
  213  judgment debtor original defendant.
  214         Section 14. Section 56.22, Florida Statutes, is amended to
  215  read:
  216         56.22 Execution sales; time, date, and place of sale.—
  217         (1) All sales of property under legal process shall take
  218  place at the time, date, and place advertised in the notice of
  219  the sheriff’s sale on any day of the week except Saturday and
  220  Sunday and shall continue from day to day until such property is
  221  disposed of.
  222         (2) Property not effectively disposed of at the initial
  223  sheriff’s sale may be readvertised, as provided in s. 56.21,
  224  upon receipt of an additional deposit to cover costs incurred in
  225  connection with the maintenance of the property under legal
  226  process. If In the event no additional deposit is received by
  227  the sheriff, the property may be returned to the judgment debtor
  228  defendant; if the judgment debtor defendant refuses to accept
  229  such property, the property may be returned to a third party,
  230  such as a lienholder, upon presentation of a proper court order
  231  directing such return. If the property cannot be returned as
  232  described in this subsection none of the above can be
  233  accomplished, such property shall be disposed of as unclaimed or
  234  abandoned.
  235         Section 15. Section 56.26, Florida Statutes, is amended to
  236  read:
  237         56.26 Executions; mandamus to force levy and sale.—When an
  238  officer holds an unsatisfied execution and refuses to levy on
  239  property liable thereunder and on which it is his or her duty to
  240  levy or having levied, refuses to advertise and sell the
  241  property levied on, the judgment creditor plaintiff in execution
  242  is entitled to an alternative writ of mandamus requiring the
  243  officer to levy such execution or advertise and sell the
  244  property levied on, or both, as the case may be.
  245         Section 16. Subsection (1) and paragraph (a) of subsection
  246  (4) of section 56.27, Florida Statutes, are amended to read:
  247         56.27 Executions; payment of money collected.—
  248         (1) All money received under executions shall be paid, in
  249  the order prescribed, to the following: the sheriff, for costs;
  250  the levying creditor in the amount of $500 as liquidated
  251  expenses; and the priority lienholder under s. 55.10(1) and (2),
  252  s. 55.202, s. 55.204(3), or s. 55.208(2), as set forth in an
  253  affidavit required by subsection (4), or the levying creditor’s
  254  his or her attorney, in satisfaction of the judgment lien, if
  255  the judgment lien has not lapsed at the time of the levy. The
  256  receipt of the attorney shall be a release of the officer paying
  257  the money to him or her. If the name of more than one attorney
  258  appears in the court file, the money shall be paid to the
  259  attorney who originally commenced the action or who made the
  260  original defense unless the file shows that another attorney has
  261  been substituted.
  262         (4) Before the date of the first publication or posting of
  263  the notice of sale provided for under s. 56.21, at the time of
  264  the levy request to the sheriff, the levying creditor shall
  265  deliver to the sheriff an affidavit setting forth all of the
  266  following as to the judgment debtor:
  267         (a) For a personal property levy, an attestation by the
  268  levying creditor or the levying creditor’s attorney of record
  269  that he or she has reviewed the database or judgment lien
  270  records established in accordance with ss. 55.201-55.209 and
  271  that the information contained in the affidavit based on that
  272  review is true and correct. For a real property levy in
  273  accordance with s. 55.10(1) and (2), an attestation by the
  274  levying creditor or the levying creditor’s his or her attorney
  275  of record that he or she has reviewed the records of the clerk
  276  of the court of the county where the property is situated, or
  277  that he or she has performed or reviewed a title search, and
  278  that the information contained in the affidavit, including a
  279  disclosure of all judgment liens, mortgages, financing
  280  statements, tax warrants, and other liens against the real
  281  property, based on that review or title search is true and
  282  correct.
  283         Section 17. Section 56.28, Florida Statutes, is amended to
  284  read:
  285         56.28 Executions; failure of officer to pay over moneys
  286  collected.—If any officer collecting money under execution fails
  287  or refuses to pay it over within 30 days after it has been
  288  received by him or her, or within 10 days after demand by the
  289  levying creditor or the levying creditor’s plaintiff or his or
  290  her attorney of record made in writing and delivered during
  291  regular business hours to the civil process bureau, the officer
  292  is liable to pay the same and 20 percent damages, to be
  293  recovered by motion in court.
  294         Section 18. Section 56.29, Florida Statutes, is amended to
  295  read:
  296         56.29 Proceedings supplementary.—
  297         (1) When any judgment creditor person or entity holds an
  298  unsatisfied judgment or judgment lien obtained under chapter 55,
  299  the judgment creditor holder or judgment lienholder may file a
  300  motion and an affidavit so stating, identifying, if applicable,
  301  the issuing court, the case number, and the unsatisfied amount
  302  of the judgment or judgment lien, including accrued costs and
  303  interest, and stating that the execution is valid and
  304  outstanding, and thereupon the judgment creditor holder or
  305  judgment lienholder is entitled to these proceedings
  306  supplementary to execution.
  307         (2) The judgment creditor shall, in the motion described in
  308  subsection (1) or in a supplemental affidavit, describe any
  309  property of the judgment debtor not exempt from execution in the
  310  hands of any person or any property, debt, or other obligation
  311  due to the judgment debtor which may be applied toward the
  312  satisfaction of the judgment. Upon filing of the motion and
  313  affidavits that property of the judgment debtor, or any debt, or
  314  other obligation due to the judgment debtor in the custody or
  315  control of any other person may be applied to satisfy the
  316  judgment, then the court shall issue a Notice to Appear. The
  317  Notice to Appear shall direct such person to file an affidavit,
  318  as provided in s. 56.16, with the court by a date certain, which
  319  date shall not be less than 7 business days from the date of
  320  service of the Notice to Appear, stating why the property, debt,
  321  or other obligation should not be applied to satisfy the
  322  judgment. For good cause shown, the court may shorten the time
  323  for serving an affidavit. The Notice to Appear must describe
  324  with reasonable particularity the property, debt, or other
  325  obligation that may be available to satisfy the judgment, must
  326  provide such person with the opportunity to present defenses,
  327  and must indicate that discovery as provided under the rules of
  328  civil procedure is available and that there is a right to a jury
  329  trial as provided in s. 56.18. The Notice to Appear must be
  330  served as provided for in chapter 48. A responding affidavit
  331  must raise any fact or defense opposing application of the
  332  property described in the Notice to Appear to satisfy the
  333  judgment, including legal defenses, such as lack of personal
  334  jurisdiction. Legal defenses need not be filed under oath but
  335  must be served contemporaneously with the affidavit On such
  336  plaintiff’s motion the court shall require the defendant in
  337  execution to appear before it or a general or special magistrate
  338  at a time and place specified by the order in the county of the
  339  defendant’s residence to be examined concerning his or her
  340  property.
  341         (3) The order shall be served in a reasonable time before
  342  the date of the examination in the manner provided for service
  343  of summons or may be served on such defendant or his or her
  344  attorney as provided for service of papers in the rules of civil
  345  procedure.
  346         (4) Testimony shall be under oath, shall be comprehensive
  347  and cover all matters and things pertaining to the business and
  348  financial interests of defendant which may tend to show what
  349  property he or she has and its location. Any testimony tending
  350  directly or indirectly to aid in satisfying the execution is
  351  admissible. A corporation must attend and answer by an officer
  352  who may be specified in the order. Examination of witnesses
  353  shall be as at trial and any party may call other witnesses.
  354         (5) The court may order any property of the judgment
  355  debtor, not exempt from execution, in the hands of any person,
  356  or any property, debt, or other obligation due to the judgment
  357  debtor, to be applied toward the satisfaction of the judgment
  358  debt. The court may entertain claims concerning the judgment
  359  debtor’s assets brought under chapter 726 and enter any order or
  360  judgment, including a money judgment against any initial or
  361  subsequent transferee, in connection therewith, irrespective of
  362  whether the transferee has retained the property. Claims under
  363  chapter 726 are subject to the provisions of chapter 726 and
  364  applicable rules of civil procedure.
  365         (3)(6)(a) When, within 1 year before the service of process
  366  on the judgment debtor in the original proceeding or action him
  367  or her, the judgment debtor defendant has had title to, or paid
  368  the purchase price of, any personal property to which the
  369  judgment debtor’s defendant’s spouse, any relative, or any
  370  person on confidential terms with the judgment debtor defendant
  371  claims title and right of possession at the time of examination,
  372  the judgment debtor defendant has the burden of proof to
  373  establish that such transfer or gift from him or her was not
  374  made to delay, hinder, or defraud creditors.
  375         (b) When any gift, transfer, assignment or other conveyance
  376  of personal property has been made or contrived by the judgment
  377  debtor to delay, hinder, or defraud creditors, the court shall
  378  order the gift, transfer, assignment or other conveyance to be
  379  void and direct the sheriff to take the property to satisfy the
  380  execution. This does not authorize seizure of property exempted
  381  from levy and sale under execution or property which has passed
  382  to a bona fide purchaser for value and without notice. Any
  383  person aggrieved by the levy or Notice to Appear may proceed
  384  under ss. 56.16-56.20.
  385         (4)(7) At any time the court may refer the proceeding to a
  386  general or special magistrate who may be directed to report
  387  findings of law or fact, or both. The general or special
  388  magistrate has all the powers thereof, including the power to
  389  issue subpoena, and shall be paid the fees provided by the court
  390  law.
  391         (5)(8) A party or a witness examined under these provisions
  392  is not excused from answering a question on the ground that the
  393  answer will tend to show him or her guilty of the commission of
  394  a fraud, or prove that he or she has been a party or privy to,
  395  or knowing of a conveyance, assignment, transfer, or other
  396  disposition of property for any purpose, or that the party or
  397  witness or another person claims to have title as against the
  398  judgment debtor defendant or to hold property derived from or
  399  through the judgment debtor defendant, or to be discharged from
  400  the payment of a debt which was due to the judgment debtor
  401  defendant or to a person on in his or her behalf of the judgment
  402  debtor. An answer cannot be used as evidence against the person
  403  so answering in any criminal proceeding.
  404         (6)(9)The court may order any property of the judgment
  405  debtor, not exempt from execution, or any property, debt, or
  406  other obligation due to the judgment debtor, in the hands of or
  407  under the control of any person subject to the Notice to Appear,
  408  to be levied upon and applied toward the satisfaction of the
  409  judgment debt. The court may enter any orders, judgments, or
  410  writs required to carry out the purpose of this section,
  411  including those orders necessary or proper to subject property
  412  or property rights of any judgment debtor to execution, and
  413  including entry of money judgments as provided in ss. 56.16
  414  56.19 against any person to whom a Notice to Appear has been
  415  directed and over whom the court obtained personal jurisdiction
  416  impleaded defendant irrespective of whether such person
  417  defendant has retained the property, subject to ss. 56.18 and
  418  56.19 and applicable principles of equity, and in accordance
  419  with chapters 76 and 77 and all applicable rules of civil
  420  procedure. Sections 56.16–56.20 apply to any order issued under
  421  this subsection.
  422         (7)(10) Any person failing to obey any order issued under
  423  this section by a judge or general or special magistrate or
  424  failing to attend in response to a subpoena served on him or her
  425  may be held in contempt.
  426         (8)(11) Costs for proceedings supplementary shall be taxed
  427  against the judgment debtor defendant as well as all other
  428  incidental costs determined to be reasonable and just by the
  429  court including, but not limited to, docketing the execution,
  430  sheriff’s service fees, and court reporter’s fees. Reasonable
  431  attorney attorney’s fees may be taxed against the judgment
  432  debtor defendant.
  433         (9) The court may entertain claims concerning the judgment
  434  debtor’s assets brought under chapter 726 and enter any order or
  435  judgment, including a money judgment against any initial or
  436  subsequent transferee, in connection therewith, irrespective of
  437  whether the transferee has retained the property. Claims under
  438  chapter 726 brought under this section shall be initiated by a
  439  supplemental complaint and served as provided by the rules of
  440  civil procedure, and the claims under the supplemental complaint
  441  are subject to chapter 726 and the rules of civil procedure. The
  442  clerk of the court shall docket a supplemental proceeding under
  443  the same case number assigned to the original complaint filed by
  444  the judgment creditor or the case number assigned to a judgment
  445  domesticated pursuant to s. 55.01, shall assign a separate
  446  supplemental proceeding number, and shall assign such
  447  supplemental proceeding to the same division and judge assigned
  448  to the main case or domesticated judgment.
  449         Section 19. Section 56.30, Florida Statutes, is created to
  450  read:
  451         56.30 Discovery in proceedings supplementary.—
  452         (1) In addition to any other discovery permitted under the
  453  rules of civil procedure, on the judgment creditor’s motion the
  454  court shall require the judgment debtor to appear before it or a
  455  general or special magistrate at a time and place specified by
  456  the order in the county of the judgment debtor’s residence or
  457  principal place of business to be examined concerning property
  458  subject to execution. This examination may occur before issuance
  459  of a Notice to Appear.
  460         (2) The order shall be served in a reasonable time before
  461  the date of the examination in the manner provided for service
  462  of summons or may be served on the judgment debtor or the
  463  judgment debtor’s attorney of record as provided for service of
  464  papers in the rules of civil procedure.
  465         (3) Testimony shall be under oath, shall be comprehensive,
  466  and cover all matters and things pertaining to the business and
  467  financial interests of the judgment debtor which may tend to
  468  show what property the judgment debtor has and its location. Any
  469  testimony tending directly or indirectly to aid in satisfying
  470  the execution is admissible. A corporate judgment debtor must
  471  attend and answer by a designee with knowledge or an identified
  472  officer or manager who may be specified in the order.
  473  Examination of witnesses shall be as at trial and any party may
  474  call other witnesses to be examined concerning property that may
  475  be subject to execution.
  476         Section 20. This act shall take effect July 1, 2016.