The Florida Senate

698.01  To be recorded.

698.02  Acknowledgment.

698.03  Power of sale may be included in certain mortgages; exercise of power.

698.04  Sale under power.

698.05  Remedy concurrent.

698.08  Notice given by filing for record of chattel mortgages generally, to extend 7 years.

698.09  Extension of period of notice.

698.11  Duties of clerk in connection with extension.

698.12  Chapter not applicable to transactions under Uniform Commercial Code.

698.01  To be recorded.--No chattel mortgage shall be valid or effectual against creditors or subsequent purchasers for a valuable consideration and without notice unless it be recorded, or unless the property included in it be delivered to the mortgagee and continue to remain truly and bona fide in her or his possession.

History.--RS 1983; GS 2496; RGS 3833; CGL 5726; s. 779, ch. 97-102.

698.02  Acknowledgment.--To entitle such mortgage to record, its execution must be acknowledged or proved in the manner provided for mortgages of real property.

History.--RS 1984; GS 2497; RGS 3839; CGL 5727.

698.03  Power of sale may be included in certain mortgages; exercise of power.--

(1)  In all mortgages to, or in favor of, the Government of the United States or any agencies thereunder making agricultural loans, or to secure principal indebtedness not exceeding $500, bearing interest not in excess of the general legal rate, on farm machinery and equipment, and agricultural, horticultural, or fruit crops in being, it may be provided or covenanted that the mortgagee, her or his legal representatives or assigns, shall have the power to sell the mortgaged property upon any breach or default by the mortgagor of the terms, covenants, conditions, or stipulations of such mortgage or of the obligation thereby secured or upon nonpayment of the indebtedness secured by such mortgage or interest thereon, when due and payable in such manner and on such terms as may be provided in such mortgage, and all such provisions and covenants shall be valid, effectual, and enforceable, and every such sale thereunder shall vest in the purchaser, or purchasers, the title in and to the property mortgaged and described in such mortgage.

(2)  In case of the exercise of such power of sale, written notice of such sale shall be given to the mortgagor and all persons claiming by, through, or under her or him by instrument duly recorded, not less than 15 days prior to such sale. Such notice may be served in the same manner as summons ad respondendum are served pursuant to the laws of Florida, and a copy of such notice shall be published at least twice, the first publication of which shall be not less than 20 days prior to such sale, in a newspaper published in the county where such sale shall occur, and another copy of such notice shall be served upon any person in charge, or having or taking part in the supervision or care of such mortgaged property, or any part thereof. If there be no newspaper published in such county, then such publication may be made in a newspaper published in any county adjoining that wherein such sale is to be made. Such notice may be served upon any of said parties wherever they may be within the state. If any person to whom notice is required to be given under this statute shall not reside in the state, or her or his residence be unknown to the mortgagee, her or his legal representatives or assigns, then it shall not be necessary to make personal service of such notice upon her or him, and in such case, the publication of such notice as above provided shall be sufficient; provided, that where the address of such nonresident be known to the mortgagee, her or his legal representative or assigns, a copy of such notice shall be mailed to her or him at such address, by registered mail.

(3)  Every such sale shall occur during the hours prescribed for sheriffs' sales at the courthouse of the county where such property is situate at the time of the sale, and if the property is situate in more than one county, the sale may occur in any county where any part of such property is located. The actual possession of such mortgaged property, or its presence, at the place of sale shall be unnecessary to the validity of any such sale.

(4)  Every such notice of sale shall describe the mortgaged property to be sold and state the time and place of sale, the name of the person who will conduct the sale, and the amount claimed to be due and secured by such mortgage and for the payment of which such sale is being held.

(5)  The proceeds of every such sale shall be applied first to the payment of the costs and expenses of such sale, including the cost of advertising and serving notices and of the person conducting such sale (which shall be the same as the fees prescribed by law to be paid sheriffs for conducting sales and executing sheriffs' deeds under executions) and attorney's fees of 10 percent of the principal and accrued interest of the obligation secured by such mortgage, for the services of the attorney for the mortgagee or her or his assigns, and then to the payment of the obligation secured by such property mortgage, including unpaid interest, if any, and the balance or excess, if any, shall be paid to the owner of such mortgaged property if she or he be known; otherwise, such excess shall be paid by the person conducting such sale into the registry of the circuit court for such county to be there held for the benefit of the person lawfully entitled to the same.

History.--s. 1, ch. 17108, 1935; CGL 1936 Supp. 5727(1); s. 168, ch. 71-355; s. 780, ch. 97-102.

698.04  Sale under power.--In case of any sale of property under a power of sale as provided in s. 698.03, the sale may be conducted by the mortgagee or assignee, or by any person appointed by the mortgagee or as assignee, and the person conducting such sale shall execute a bill of sale to the purchaser or purchasers, which shall effectively transfer title to the property so sold. The mortgagee or assignee may bid and become the purchaser at any such sale. All rights and remedies of the mortgagee provided in ss. 698.03-698.05 shall extend to the mortgagee's legal representatives and assigns.

History.--s. 2, ch. 17108, 1935; CGL 1936 Supp. 5727(2).

698.05  Remedy concurrent.--Nothing in ss. 698.03 and 698.04 shall prevent the holder of any such mortgage from foreclosing such mortgage in equity; the remedy by power of sale given in said sections being intended to be cumulative and concurrent, but not exclusive. In all other respects, the laws relating to chattel mortgages shall be applicable to such mortgages.

History.--s. 3, ch. 17108, 1935; CGL 1936 Supp. 5727(3).

698.08  Notice given by filing for record of chattel mortgages generally, to extend 7 years.--

(1)  The notice given to third persons by the filing for record of any mortgage or other security instrument, except mortgages or other instruments given to secure future advances, creating a lien on, or conveying or reserving an interest in, personal property, or agricultural, horticultural, or fruit crops planted, growing or to be planted, grown or raised, shall, unless otherwise provided by law, expire at the end of 7 years from the date of the filing thereof for record.

(2)  The notice given to third persons by the filing for record of any mortgage or other security instrument given to secure future advances, creating a lien on, or conveying or reserving an interest in, personal property or agricultural, horticultural, or fruit crops planted, growing, or to be planted, grown, or raised, shall, unless otherwise provided by law, expire at the end of:

(a)  Seven years from the date of maturity of the debts or obligations last maturing thereunder and secured by such mortgages or other security instruments, or

(b)  Seven years from the last date an advance could validly be made thereunder so as to be secured thereby,

whichever of said dates is later.

(3)  Provided, however, that this law shall not apply to any mortgage or other security instrument creating a lien on, or conveying or reserving an interest in, or in respect of property owned by, or sold or leased to, or agreed to be sold or leased to, any railroad corporation, where such mortgage has been or shall be recorded in the county in the state in which the mortgaged property is situated or, in the case of such other instrument, where such other instrument has been or shall be recorded in the office of the Department of State. Provided further, however, that this law shall not apply to any mortgage or other security instrument given to secure any indebtedness to the United States, or any agency or instrumentality thereof, incurred under the Rural Electrification Act of 1939, as amended.

History.--s. 1, ch. 17112, 1935; CGL 1936 Supp. 5727(7); s. 1, ch. 20921, 1941; s. 1, ch. 26889, 1951; s. 4, ch. 63-212; ss. 10, 35, ch. 69-106.

698.09  Extension of period of notice.--The effect as to third persons of the filing of any such instrument for record, may, in all respects, including the preservation of priority thereof, be extended for successive additional periods, each not exceeding 7 years from the date of the filing in the office of the clerk of the circuit court, wherein any such instrument is recorded, upon the filing by the owner or holder thereof, of an affidavit identifying such instrument, stating her or his interest therein and the nature and amount unpaid on the obligation still secured thereby. Provided, however, that where a mortgage or other security instrument has been amended or supplemented one or more times and an identifying affidavit is so filed for record by the owner or holder thereof with respect to the original mortgage or other security instrument and mention is made in such affidavit of any instrument or instruments amendatory or supplemental thereto such identifying affidavit need not be filed with respect to such amendatory or supplemental instrument or instruments so mentioned therein and the effect of such amendatory or supplemental instrument or instruments and the preservation of any lien or priority thereof shall be extended along with the original mortgage or other security instrument as to which affidavit or affidavits have been filed in accordance with the requirements of this section.

History.--s. 2, ch. 17112, 1935; CGL 1936 Supp. 5727(8); s. 1, ch. 28083, 1953; s. 781, ch. 97-102.

698.11  Duties of clerk in connection with extension.--The clerk of the circuit court shall file such affidavit, reindex the instrument mentioned therein, and enter on the index of such instrument a reference to the filing of such affidavit, stating thereon the date of filing of such affidavit and the amount unpaid on the obligation secured by such instrument, for which services the clerk of the circuit court shall be entitled to a service charge as provided in s. 28.24.

History.--s. 4, ch. 17112, 1935; CGL 1936 Supp. 5727(10); s. 29, ch. 70-134.

698.12  Chapter not applicable to transactions under Uniform Commercial Code.--The provisions of this chapter shall not apply to transactions governed by any of the provisions of the Uniform Commercial Code, but shall remain applicable to transactions to which that code does not apply.

History.--s. 1, ch. 65-254.