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2011 Florida Statutes
Chapter 45
CIVIL PROCEDURE: GENERAL PROVISIONS
CIVIL PROCEDURE: GENERAL PROVISIONS
TITLE VI
CIVIL PRACTICE AND PROCEDURECHAPTER 45
CIVIL PROCEDURE: GENERAL PROVISIONS
45.011 Definitions.
45.021 Applicability.
45.031 Judicial sales procedure.
45.0315 Right of redemption.
45.032 Disbursement of surplus funds after judicial sale.
45.033 Sale or assignment of rights to surplus funds in a property subject to foreclosure.
45.034 Qualifications and appointment of a surplus trustee in foreclosure actions.
45.035 Clerk’s fees.
45.041 Amendment of bonds.
45.045 Limitations on supersedeas bond; exception.
45.051 Execution of supersedeas bond when required of the state or its political subdivisions.
45.061 Offers of settlement.
45.062 Settlements, conditions, or orders when an agency of the executive branch is a party.
45.075 Expedited trials.
45.011 Definitions.—In all statutes about practice and procedure “plaintiff” means any party seeking affirmative relief whether plaintiff, counterclaimant, cross-claimant; or third-party plaintiff, counterclaimant or cross-claimant; “defendant” means any party against whom such relief is sought; “bond with surety” means a bond with two good and sufficient sureties, each with unencumbered property not subject to any exemption afforded by law equal in value to the penal sum of the bond or a bond with a licensed surety company as surety or a cash deposit conditioned as for a bond.
History.—s. 1, ch. 67-254.
45.021 Applicability.—Chapters 45-51, 55-57, 68 and 69 apply to all actions, whether heretofore at law or in chancery, unless specifically provided otherwise in such chapters or parts thereof.
History.—s. 1, ch. 67-254.
45.031 Judicial sales procedure.—In any sale of real or personal property under an order or judgment, the procedures provided in this section and ss. 45.0315-45.035 may be followed as an alternative to any other sale procedure if so ordered by the court.
(1) FINAL JUDGMENT.—
(a) In the order or final judgment, the court shall direct the clerk to sell the property at public sale on a specified day that shall be not less than 20 days or more than 35 days after the date thereof, on terms and conditions specified in the order or judgment. A sale may be held more than 35 days after the date of final judgment or order if the plaintiff or plaintiff’s attorney consents to such time. The final judgment shall contain the following statement in conspicuous type:
IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THIS FINAL JUDGMENT.
IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.
(b) If the property being foreclosed on has qualified for the homestead tax exemption in the most recent approved tax roll, the final judgment shall additionally contain the following statement in conspicuous type:
IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE FUNDS YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER OR ANY OTHER REPRESENTATION AND YOU DO NOT HAVE TO ASSIGN YOUR RIGHTS TO ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY MONEY TO WHICH YOU ARE ENTITLED. PLEASE CHECK WITH THE CLERK OF THE COURT, (INSERT INFORMATION FOR APPLICABLE COURT) WITHIN TEN (10) DAYS AFTER THE SALE TO SEE IF THERE IS ADDITIONAL MONEY FROM THE FORECLOSURE SALE THAT THE CLERK HAS IN THE REGISTRY OF THE COURT.
IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP YOU CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY CAREFULLY ALL PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLY AN ATTORNEY WHO IS NOT RELATED TO THE PERSON OFFERING TO HELP YOU, TO MAKE SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND THAT YOU ARE NOT TRANSFERRING YOUR PROPERTY OR THE EQUITY IN YOUR PROPERTY WITHOUT THE PROPER INFORMATION. IF YOU CANNOT AFFORD TO PAY AN ATTORNEY, YOU MAY CONTACT (INSERT LOCAL OR NEAREST LEGAL AID OFFICE AND TELEPHONE NUMBER) TO SEE IF YOU QUALIFY FINANCIALLY FOR THEIR SERVICES. IF THEY CANNOT ASSIST YOU, THEY MAY BE ABLE TO REFER YOU TO A LOCAL BAR REFERRAL AGENCY OR SUGGEST OTHER OPTIONS. IF YOU CHOOSE TO CONTACT (NAME OF LOCAL OR NEAREST LEGAL AID OFFICE) FOR ASSISTANCE, YOU SHOULD DO SO AS SOON AS POSSIBLE AFTER RECEIPT OF THIS NOTICE.
(c) A copy of the final judgment shall be furnished by the clerk by first class mail to the last known address of every party to the action or to the attorney of record for such party. Any irregularity in such mailing, including the failure to include this statement in any final judgment or order, shall not affect the validity or finality of the final judgment or order or any sale held pursuant to the final judgment or order. Any sale held more than 35 days after the final judgment or order shall not affect the validity or finality of the final judgment or order or any sale held pursuant to such judgment or order.
(2) PUBLICATION OF SALE.—Notice of sale shall be published once a week for 2 consecutive weeks in a newspaper of general circulation, as defined in chapter 50, published in the county where the sale is to be held. The second publication shall be at least 5 days before the sale. The notice shall contain:
(a) A description of the property to be sold.
(b) The time and place of sale.
(c) A statement that the sale will be made pursuant to the order or final judgment.
(d) The caption of the action.
(e) The name of the clerk making the sale.
(f) A statement that any person claiming an interest in the surplus from the sale, if any, other than the property owner as of the date of the lis pendens must file a claim within 60 days after the sale.
The court, in its discretion, may enlarge the time of the sale. Notice of the changed time of sale shall be published as provided herein.
(3) CONDUCT OF SALE; DEPOSIT REQUIRED.—The sale shall be conducted at public auction at the time and place set forth in the final judgment. The clerk shall receive the service charge imposed in s. 45.035 for services in making, recording, and certifying the sale and title that shall be assessed as costs. At the time of the sale, the successful high bidder shall post with the clerk a deposit equal to 5 percent of the final bid. The deposit shall be applied to the sale price at the time of payment. If final payment is not made within the prescribed period, the clerk shall readvertise the sale as provided in this section and pay all costs of the sale from the deposit. Any remaining funds shall be applied toward the judgment.
(4) CERTIFICATION OF SALE.—After a sale of the property the clerk shall promptly file a certificate of sale and serve a copy of it on each party in substantially the following form:
(Caption of Action)
CERTIFICATE OF SALE
The undersigned clerk of the court certifies that notice of public sale of the property described in the order or final judgment was published in , a newspaper circulated in County, Florida, in the manner shown by the proof of publication attached, and on , (year) , the property was offered for public sale to the highest and best bidder for cash. The highest and best bid received for the property in the amount of $ was submitted by , to whom the property was sold. The proceeds of the sale are retained for distribution in accordance with the order or final judgment or law. WITNESS my hand and the seal of this court on , (year) .
(Clerk)
By (Deputy Clerk)
(5) CERTIFICATE OF TITLE.—If no objections to the sale are filed within 10 days after filing the certificate of sale, the clerk shall file a certificate of title and serve a copy of it on each party in substantially the following form:
(Caption of Action)
CERTIFICATE OF TITLE
The undersigned clerk of the court certifies that he or she executed and filed a certificate of sale in this action on , (year) , for the property described herein and that no objections to the sale have been filed within the time allowed for filing objections.
The following property in County, Florida:
(description)
was sold to .
WITNESS my hand and the seal of the court on , (year) .
(Clerk)
By (Deputy Clerk)
(6) CONFIRMATION; RECORDING.—When the certificate of title is filed the sale shall stand confirmed, and title to the property shall pass to the purchaser named in the certificate without the necessity of any further proceedings or instruments. The certificate of title shall be recorded by the clerk.
(7) DISBURSEMENTS OF PROCEEDS.—
(a) On filing a certificate of title, the clerk shall disburse the proceeds of the sale in accordance with the order or final judgment and shall file a report of such disbursements and serve a copy of it on each party, and on the Department of Revenue if the department was named as a defendant in the action or if the Department of Economic Opportunity or the former Agency for Workforce Innovation was named as a defendant while the Department of Revenue was providing unemployment tax collection services under contract with the Department of Economic Opportunity or the former Agency for Workforce Innovation through an interagency agreement pursuant to s. 443.1316.
(b) The certificate of disbursements shall be in substantially the following form:
(Caption of Action)
CERTIFICATE OF DISBURSEMENTS
The undersigned clerk of the court certifies that he or she disbursed the proceeds received from the sale of the property as provided in the order or final judgment to the persons and in the amounts as follows:
Name Amount
Total disbursements: $
Surplus retained by clerk, if any: $
IF YOU ARE A PERSON CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS. AFTER 60 DAYS, ONLY THE OWNER OF RECORD AS OF THE DATE OF THE LIS PENDENS MAY CLAIM THE SURPLUS.
WITNESS my hand and the seal of the court on , (year) .
(Clerk)
By (Deputy Clerk)
(c) If no objections to the report are served within 10 days after it is filed, the disbursements by the clerk shall stand approved as reported. If timely objections to the report are served, they shall be heard by the court. Service of objections to the report does not affect or cloud the title of the purchaser of the property in any manner.
(d) If there are funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements, the surplus shall be distributed as provided in this section and ss. 45.0315-45.035.
(8) VALUE OF PROPERTY.—The amount of the bid for the property at the sale shall be conclusively presumed to be sufficient consideration for the sale. Any party may serve an objection to the amount of the bid within 10 days after the clerk files the certificate of sale. If timely objections to the bid are served, the objections shall be heard by the court. Service of objections to the amount of the bid does not affect or cloud the title of the purchaser in any manner. If the case is one in which a deficiency judgment may be sought and application is made for a deficiency, the amount bid at the sale may be considered by the court as one of the factors in determining a deficiency under the usual equitable principles.
(9) EXECUTION SALES.—This section shall not apply to property sold under executions.
(10) ELECTRONIC SALES.—The clerk may conduct the sale of real or personal property under an order or judgment pursuant to this section by electronic means. Such electronic sales shall comply with the procedures provided in this chapter, except that electronic proxy bidding shall be allowed and the clerk may require bidders to advance sufficient funds to pay the deposit required by subsection (3). The clerk shall provide access to the electronic sale by computer terminals open to the public at a designated location and shall accept an advance credit proxy bid from the plaintiff of any amount up to the maximum allowable credit bid of the plaintiff. A clerk who conducts such electronic sales may receive electronic deposits and payments related to the sale.
History.—s. 1, ch. 67-254; s. 13, ch. 70-134; ss. 1-3, ch. 71-5; s. 1, ch. 77-354; s. 1, ch. 78-68; s. 1, ch. 85-267; s. 6, ch. 87-145; s. 1, ch. 93-250; s. 1, ch. 94-353; s. 1355, ch. 95-147; s. 2, ch. 99-6; s. 5, ch. 99-259; s. 1, ch. 2002-218; s. 1, ch. 2003-36; s. 45, ch. 2004-265; s. 1, ch. 2006-175; s. 1, ch. 2008-194; s. 43, ch. 2011-142; s. 3, ch. 2011-213.
45.0315 Right of redemption.—At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure, or if no judgment, order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelerate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney’s fees of the creditor. Otherwise, there is no right of redemption.
History.—s. 2, ch. 93-250.
45.032 Disbursement of surplus funds after judicial sale.—
(1) For purposes of ss. 45.031-45.035, the term:
(a) “Owner of record” means the person or persons who appear to be owners of the property that is the subject of the foreclosure proceeding on the date of the filing of the lis pendens. In determining an owner of record, a person need not perform a title search and examination but may rely on the plaintiff’s allegation of ownership in the complaint when determining the owner of record.
(b) “Subordinate lienholder” means the holder of a subordinate lien shown on the face of the pleadings as an encumbrance on the property. The lien held by the party filing the foreclosure lawsuit is not a subordinate lien. A subordinate lienholder includes, but is not limited to, a subordinate mortgage, judgment, tax warrant, assessment lien, or construction lien. However, the holder of a subordinate lien shall not be deemed a subordinate lienholder if the holder was paid in full from the proceeds of the sale.
(c) “Surplus funds” or “surplus” means the funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements.
(d) “Surplus trustee” means a person qualifying as a surplus trustee pursuant to s. 45.034.
(2) There is established a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim. A person claiming a legal right to the surplus as an assignee of the rights of the owner of record must prove to the court that such person is entitled to the funds. At any hearing regarding such entitlement, the court shall consider the factors set forth in s. 45.033 in determining whether an assignment is sufficient to overcome the presumption. It is the intent of the Legislature to abrogate the common law rule that surplus proceeds in a foreclosure case are the property of the owner of the property on the date of the foreclosure sale.
(3) During the 60 days after the clerk issues a certificate of disbursements, the clerk shall hold the surplus pending a court order.
(a) If the owner of record claims the surplus during the 60-day period and there is no subordinate lienholder, the court shall order the clerk to deduct any applicable service charges from the surplus and pay the remainder to the owner of record. The clerk may establish a reasonable requirement that the owner of record prove his or her identity before receiving the disbursement. The clerk may assist an owner of record in making a claim. An owner of record may use the following form in making a claim:
(Caption of Action)
OWNER’S CLAIM FOR
MORTGAGE FORECLOSURE SURPLUS
State of
County of
Under penalty of perjury, I (we) hereby certify that:
1. I was (we were) the owner of the following described real property in County, Florida, prior to the foreclosure sale and as of the date of the filing of the lis pendens:
(Legal description of real property)
2. I (we) do not owe any money on any mortgage on the property that was foreclosed other than the one that was paid off by the foreclosure.
3. I (we) do not owe any money that is the subject of an unpaid judgment, tax warrant, condominium lien, cooperative lien, or homeowners’ association.
4. I am (we are) not currently in bankruptcy.
5. I (we) have not sold or assigned my (our) right to the mortgage surplus.
6. My (our) new address is: .
7. If there is more than one owner entitled to the surplus, we have agreed that the surplus should be paid jointly, or to: , at the following address: .
8. I (WE) UNDERSTAND THAT I (WE) AM (ARE) NOT REQUIRED TO HAVE A LAWYER OR ANY OTHER REPRESENTATION AND I (WE) DO NOT HAVE TO ASSIGN MY (OUR) RIGHTS TO ANYONE ELSE IN ORDER TO CLAIM ANY MONEY TO WHICH I (WE) MAY BE ENTITLED.
9. I (WE) UNDERSTAND THAT THIS STATEMENT IS GIVEN UNDER OATH, AND IF ANY STATEMENTS ARE UNTRUE THAT I (WE) MAY BE PROSECUTED CRIMINALLY FOR PERJURY.
(Signatures)
Sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of person making statement) .
(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known OR Produced Identification
Type of Identification Produced
(b) If any person other than the owner of record claims an interest in the proceeds during the 60-day period or if the owner of record files a claim for the surplus but acknowledges that one or more other persons may be entitled to part or all of the surplus, the court shall set an evidentiary hearing to determine entitlement to the surplus. At the evidentiary hearing, an equity assignee has the burden of proving that he or she is entitled to some or all of the surplus funds. The court may grant summary judgment to a subordinate lienholder prior to or at the evidentiary hearing. The court shall consider the factors in s. 45.033 when hearing a claim that any person other than a subordinate lienholder or the owner of record is entitled to the surplus funds.
(c) If no claim is filed during the 60-day period, the clerk shall appoint a surplus trustee from a list of qualified surplus trustees as authorized in s. 45.034. Upon such appointment, the clerk shall prepare a notice of appointment of surplus trustee and shall furnish a copy to the surplus trustee. The form of the notice may be as follows:
(Caption of Action)
NOTICE OF APPOINTMENT
OF SURPLUS TRUSTEE
The undersigned clerk of the court certifies that he or she disbursed the proceeds received from the sale of the property as provided in the order or final judgment to the persons named in the certificate of disbursements, and that surplus funds of $ remain and are subject to disbursement to the owner of record. You have been appointed as surplus trustee for the purpose of finding the owner of record in order for the clerk to disburse the surplus, after deducting costs, to the owner of record.
WITNESS my hand and the seal of the court on , (year) .
(Clerk)
By (Deputy Clerk)
(4) If the surplus trustee is unable to locate the owner of record entitled to the surplus within 1 year after appointment, the appointment shall terminate and the clerk shall notify the surplus trustee that his or her appointment was terminated. Thirty days after termination of the appointment of the surplus trustee, the clerk shall treat the remaining funds as unclaimed property to be deposited with the Chief Financial Officer pursuant to chapter 717.
(5) Proceedings regarding surplus funds in a foreclosure case do not in any manner affect or cloud the title of the purchaser at the foreclosure sale of the property.
History.—s. 2, ch. 2006-175; s. 1, ch. 2007-106.
45.033 Sale or assignment of rights to surplus funds in a property subject to foreclosure.—
(1) There is established a rebuttable presumption that the owner of record of real property on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim. A person claiming a legal right to the surplus as an assignee of the rights of the owner of record must prove entitlement to the surplus funds pursuant to this section. It is the intent of the Legislature to abrogate the common law rule that surplus proceeds in a foreclosure case are the property of the owner of the property on the date of the foreclosure sale.
(2) The presumption may be rebutted only by:
(a) The grantee or assignee of a voluntary transfer or assignment establishing a right to collect the surplus funds or any portion or percentage of the surplus funds by proving that the transfer or assignment qualifies as a voluntary transfer or assignment as provided in subsection (3); or
(b) The grantee or assignee proving that the grantee or assignee is a grantee or assignee by virtue of an involuntary transfer or assignment of the right to collect the surplus. An involuntary transfer or assignment may be as a result of inheritance or as a result of the appointment of a guardian.
(3) A voluntary transfer or assignment shall be a transfer or assignment qualified under this subsection, thereby entitling the transferee or assignee to the surplus funds or a portion or percentage of the surplus funds, if:
(a) The transfer or assignment is in writing and the instrument:
1. If executed prior to the foreclosure sale, includes a financial disclosure that specifies the assessed value of the property, a statement that the assessed value may be lower than the actual value of the property, the approximate amount of any debt encumbering the property, and the approximate amount of any equity in the property. If the instrument was executed after the foreclosure sale, the instrument must also specify the foreclosure sale price and the amount of the surplus.
2. Includes a statement that the owner does not need an attorney or other representative to recover surplus funds in a foreclosure.
3. Specifies all forms of consideration paid for the rights to the property or the assignment of the rights to any surplus funds.
(b) The transfer or assignment is filed with the court on or before 60 days after the filing of the certificate of disbursements.
(c) There are funds available to pay the transfer or assignment after payment of timely filed claims of subordinate lienholders.
(d) The transferor or assignee is qualified as a surplus trustee, or could qualify as a surplus trustee, pursuant to s. 45.034.
(e) The total compensation paid or payable, or earned or expected to be earned, by the transferee or assignee does not exceed 12 percent of the surplus.
(4) The court shall honor a transfer or assignment that complies with the requirements of subsection (3), in which case the court shall order the clerk to pay the transferor or assignee from the surplus.
(5) If the court finds that a voluntary transfer or assignment does not qualify under subsection (3) but that the transfer or assignment was procured in good faith and with no intent to defraud the transferor or assignor, the court may order the clerk to pay the claim of the transferee or assignee after payment of timely filed claims of subordinate lienholders.
(6) If a voluntary transfer or assignment of the surplus is set aside, the owner of record shall be entitled to payment of the surplus after payment of timely filed claims of subordinate lienholders, but the transferee or assignee may seek in a separate proceeding repayment of any consideration paid for the transfer or assignment.
(7) This section does not apply to a deed, mortgage, or deed in lieu of foreclosure unless a person other than the owner of record is claiming that a deed or mortgage entitles the person to surplus funds. Nothing in this section affects the title or marketability of the real property that is the subject of the deed or other instrument. Nothing in this section affects the validity of a lien evidenced by a mortgage.
History.—s. 3, ch. 2006-175.
45.034 Qualifications and appointment of a surplus trustee in foreclosure actions.—
(1) A surplus trustee is a third-party trustee approved pursuant to this section by the Department of Financial Services. A surplus trustee must be willing to accept cases on a statewide basis; however, a surplus trustee may employ subcontractors that are not qualified as a surplus trustee provided the surplus trustee remains primarily responsible for the duties set forth in this section.
(2) A surplus trustee is an entity that holds and administers surplus proceeds from a foreclosure pursuant to ss. 45.031-45.035.
(3) To be a surplus trustee, an entity must apply for certification with the Department of Financial Services. The application must contain:
(a) The name and address of the entity and of one or more principals of the entity.
(b) A certificate of good standing from the Secretary of State indicating that the entity is an entity registered in this state.
(c) A statement under oath by a principal of the entity certifying that the entity, or a principal of the entity, has a minimum of 12 months’ experience in the recovery of surplus funds in foreclosure actions.
(d) Proof that the entity holds a valid Class “A” private investigator license pursuant to chapter 493.
(e) Proof that the entity carries a minimum of $500,000 in liability insurance, cash reserves, or bonding.
(f) A statement from an attorney licensed to practice in this state certifying that the attorney is a principal of the entity or is employed by the entity on a full-time basis and that the attorney will supervise the management of the entity during the entity’s tenure as a surplus trustee.
(g) A statement under oath by a principal of the entity certifying that the principal understands his or her duty to immediately notify the department if the principal ever fails to qualify as an entity entitled to be a surplus trustee.
(h) A nonrefundable application fee of $25.
(4) The Department of Financial Services shall certify any surplus trustee that applies and qualifies. Applications must be filed by June 1, and all applications that qualify shall be certified by the department by June 30 and shall be effective for 1 year commencing July 1. The department shall renew a certification upon receipt of the $25 fee and a statement under oath from a principal of the surplus trustee certifying that the surplus trustee continues to qualify under this section.
(5) The Department of Financial Services shall develop a rotation system for assignment of cases to all qualified surplus trustees.
(6) The primary duty of a surplus trustee is to locate the owner of record within 1 year after appointment. Upon locating the owner of record, the surplus trustee shall file a petition with the court on behalf of the owner of record seeking disbursement of the surplus funds. If more than one person appears to be the owner of record, the surplus trustee shall obtain agreement between such persons as to the payment of the surplus or file an interpleader. The interpleader may be filed as part of the foreclosure case.
(7) A surplus trustee is entitled to the following service charges and fees which shall be disbursed by the clerk and payable from the surplus:
(a) Upon obtaining a court order, a cost advance of 2 percent of the surplus.
(b) Upon obtaining a court order disbursing the surplus to the owner of record, a service charge of 10 percent of the surplus.
History.—s. 4, ch. 2006-175.
45.035 Clerk’s fees.—In addition to other fees or service charges authorized by law, the clerk shall receive service charges related to the judicial sales procedure set forth in ss. 45.031-45.034 and this section:
(1) The clerk shall receive a service charge of $70 for services in making, recording, and certifying the sale and title, which service charge shall be assessed as costs and shall be advanced by the plaintiff before the sale.
(2) If there is a surplus resulting from the sale, the clerk may receive the following service charges, which shall be deducted from the surplus:
(a) The clerk may withhold the sum of $28 from the surplus which may only be used for purposes of educating the public as to the rights of homeowners regarding foreclosure proceedings.
(b) The clerk is entitled to a service charge of $15 for notifying a surplus trustee of his or her appointment.
(c) The clerk is entitled to a service charge of $15 for each disbursement of surplus proceeds.
(d) The clerk is entitled to a service charge of $15 for appointing a surplus trustee, furnishing the surplus trustee with a copy of the final judgment and the certificate of disbursements, and disbursing to the surplus trustee the trustee’s cost advance.
(3) If the sale is conducted by electronic means, as provided in s. 45.031(10), the clerk shall receive an additional service charge not to exceed $70 for services in conducting or contracting for the electronic sale, which service charge shall be assessed as costs and paid by the winning bidder. If the clerk requires advance electronic deposits to secure the right to bid, such deposits shall not be subject to the fee under s. 28.24(10). The portion of an advance deposit from a winning bidder required by s. 45.031(3) shall, upon acceptance of the winning bid, be subject to the fee under s. 28.24(10).
History.—s. 5, ch. 2006-175; s. 25, ch. 2008-111; s. 2, ch. 2008-194; s. 3, ch. 2009-21; s. 10, ch. 2009-204.
45.041 Amendment of bonds.—When any bond required or authorized in any action is defective in form or substance, the party giving the bond may give a new bond which is sufficient in form and substance and the new bond is as sufficient as though given in the first instance. The new bond may be given at any time before a motion attacking the sufficiency of the bond is served. Thereafter the new bond may be given by leave of court and on such terms as the court fixes. Leave to file an amended bond shall be freely given when justice so requires. If any amendment is made to a bond, the amended bond relates back to the commencement of the action and affords protection to the person in whose favor it is given from commencement although it was not theretofore binding on the surety.
History.—s. 1, ch. 67-254.
45.045 Limitations on supersedeas bond; exception.—
(1) Except for certified class actions subject to s. 768.733, in any civil action brought under any legal theory, the amount of a supersedeas bond necessary to obtain an automatic stay of execution of a judgment granting any type of relief during the entire course of all appeals or discretionary reviews, may not exceed $50 million for each appellant, regardless of the amount of the judgment appealed. The $50 million amount shall be adjusted annually to reflect changes in the Consumer Price Index compiled by the United States Department of Labor.
(2) In any civil action brought under any legal theory, a party seeking a stay of execution of a judgment pending review of any amount may move the court to reduce the amount of a supersedeas bond required to obtain such a stay. The court, in the interest of justice and for good cause shown, may reduce the supersedeas bond or may set other conditions for the stay with or without a bond. The court may not reduce the supersedeas bond if the appellant has an insurance or indemnification policy applicable to the case. This subsection does not apply to certified class actions subject to s. 768.733.
(3) If an appellant has posted a supersedeas bond for an amount less than that which would be required for an automatic stay pursuant to Rule 9.310(b)(1), Florida Rules of Appellate Procedure, the appellee may engage in discovery for the limited purpose of determining whether the appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so.
(4) If the trial or appellate court determines that an appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so, the court may enter orders necessary to protect the appellee, require the appellant to post a supersedeas bond in an amount up to, but not more than, the amount that would be required for an automatic stay pursuant to Rule 9.310(b)(1), Florida Rules of Appellate Procedure, and impose other remedies and sanctions as the court deems appropriate.
History.—s. 1, ch. 2006-280.
45.051 Execution of supersedeas bond when required of the state or its political subdivisions.—
(1) When a supersedeas bond is required by the appellate court under Rule 9.310(b)(2), Florida Rules of Appellate Procedure or an appeal or other proceeding is taken in any court and there is no court rule or statute exempting the parties from giving supersedeas, cost, or other required bond, the parties are authorized to make and execute the required bond with a corporate surety thereon duly licensed to do business in this state. The premium or other cost for the bond may be paid from the general necessary and regular appropriation of the party taking the appeal, in the case of the state or any of its officers, boards, commissioners or other agencies, and from the county general fund, district school general fund, or otherwise as the case may be, in the case of a political subdivision of the state or any of its officers, boards, commissions or other agencies. The officers of the state and its political subdivisions and the executive officers of their boards, commissions, and other agencies aforesaid, are authorized to make and execute the bonds on behalf of the parties.
(2) In connection with an appeal taken by a state employee or official of a judgment against that employee or official in an individual capacity, as part of the legal defense being provided by the state risk management program, the Division of Risk Management may enter into an indemnification agreement for the purpose of securing an appellate supersedeas bond, provided that, under any such agreement, the liability of the State of Florida is limited to the amount of the judgment being appealed and any costs imposed by law or the appropriate court.
History.—s. 14, ch. 22854, 1945; s. 4, ch. 71-316; s. 10, ch. 95-280; s. 11, ch. 2001-266.
Note.—Former s. 59.14(3).
45.061 Offers of settlement.—
(1) At any time more than 60 days after the service of a summons and complaint on a party but not less than 60 days (or 45 days if it is a counteroffer) before trial, any party may serve upon an adverse party a written offer, which offer shall not be filed with the court and shall be denominated as an offer under this section, to settle a claim for the money, property, or relief specified in the offer and to enter into a stipulation dismissing the claim or to allow judgment to be entered accordingly. The offer shall remain open for 45 days unless withdrawn sooner by a writing served on the offeree prior to acceptance by the offeree. An offer that is neither withdrawn nor accepted within 45 days shall be deemed rejected. The fact that an offer is made but not accepted does not preclude the making of a subsequent offer. Evidence of an offer is not admissible except in proceedings to enforce a settlement or to determine sanctions under this section.
(2) If, upon a motion by the offeror within 30 days after the entry of judgment, the court determines that an offer was rejected unreasonably, resulting in unnecessary delay and needless increase in the cost of litigation, it may impose an appropriate sanction upon the offeree. In making this determination the court shall consider all of the relevant circumstances at the time of the rejection, including:
(a) Whether, upon specific request by the offeree, the offeror had unreasonably refused to furnish information which was necessary to evaluate the reasonableness of the offer.
(b) Whether the suit was in the nature of a “test case,” presenting questions of far-reaching importance affecting nonparties.
An offer shall be presumed to have been unreasonably rejected by a defendant if the judgment entered is at least 25 percent greater than the offer rejected, and an offer shall be presumed to have been unreasonably rejected by a plaintiff if the judgment entered is at least 25 percent less than the offer rejected. For the purposes of this section, the amount of the judgment shall be the total amount of money damages awarded plus the amount of costs and expenses reasonably incurred by the plaintiff or counter-plaintiff prior to the making of the offer for which recovery is provided by operation of other provisions of Florida law.
(3) In determining the amount of any sanction to be imposed under this section, the court shall award:
(a) The amount of the parties’ costs and expenses, including reasonable attorneys’ fees, investigative expenses, expert witness fees, and other expenses which relate to the preparation for trial, incurred after the making of the offer of settlement; and
(b) The statutory rate of interest that could have been earned at the prevailing statutory rate on the amount that a claimant offered to accept to the extent that the interest is not otherwise included in the judgment.
The amount of any sanction imposed under this section against a plaintiff shall be set off against any award to the plaintiff, and if such sanction is in an amount in excess of the award to the plaintiff, judgment shall be entered in favor of the defendant and against the plaintiff in the amount of the excess.
(4) This section shall not apply to any class action or shareholder derivative suit or to matters relating to dissolution of marriage, alimony, nonsupport, eminent domain, or child custody.
(5) Sanctions authorized under this section may be imposed notwithstanding any limitation on recovery of costs or expenses which may be provided by contract or in other provisions of Florida law. This section shall not be construed to waive the limits of sovereign immunity set forth in s. 768.28.
(6) This section does not apply to causes of action that accrue after the effective date of this act.
History.—s. 1, ch. 87-249; s. 22, ch. 90-119.
45.062 Settlements, conditions, or orders when an agency of the executive branch is a party.—
(1) In any civil action in which a state executive branch agency or officer is a party in state or federal court, the officer, agent, official, or attorney who represents or is acting on behalf of such agency or officer may not settle such action, consent to any condition, or agree to any order in connection therewith, if the settlement, condition, or order requires the expenditure of or the obligation to expend any state funds or other state resources exceeding $1 million, the refund or future loss of state revenues exceeding $10 million, or the establishment of any new program, unless:
(a) The expenditure is provided for by an existing appropriation or program established by law.
(b) At the time settlement negotiations have begun in earnest, written notification is given to the President of the Senate, the Speaker of the House of Representatives, the Senate and House of Representatives minority leaders, the chairs of the appropriations committees of the Legislature, and the Attorney General.
(c) Prior written notification is given at least 5 business days, or as soon thereafter as practicable, before the date the settlement or presettlement agreement or order is to be made final to the President of the Senate, the Speaker of the House of Representatives, the Senate and House of Representatives minority leaders, the chairs of the appropriations committees of the Legislature, and the Attorney General. Such notification shall specify how the agency involved will address the costs in future years within the limits of current appropriations.
1. The Division of Risk Management need not give the notification required by this paragraph when settling any claim covered by the state self-insurance program for an amount less than $250,000.
2. The notification specified in this paragraph is not required if:
a. The only settlement obligation of the state resulting from the claim is to pay court costs in an amount less than $10,000;
b. Notification would preclude the state’s participation in multistate litigation;
c. Notification is precluded by federal law or regulation;
d. Notification is precluded by court rule or sanction;
e. The head of the primary state agency involved in the litigation certifies to the President of the Senate and the Speaker of the House of Representatives, in writing within 5 days after the settlement, the specific reasons prior notification could not be provided;
f. Settlement or presettlement negotiations are being conducted with fewer than all of the opposing parties; or
g. The President of the Senate and the Speaker of the House of Representatives or the chairs of the appropriations committees of the Legislature, acting in the best interest of the state, waive notification.
(2) The state executive branch agency or officer shall negotiate a closure date as soon as possible for the civil action.
(3) The state executive branch agency or officer may not pledge any current or future action of another branch of state government as a condition for settling the civil action.
(4) Any settlement that commits the state to spending in excess of current appropriations or to policy changes inconsistent with current state law shall be contingent upon and subject to legislative appropriation or statutory amendment. The state agency or officer may agree to use all efforts to procure legislative funding or statutory amendment.
(5) When a state agency or officer settles an action or legal claim in which the state asserted a right to recover money, all moneys paid to the state by a party in full or partial exchange for a release of the state’s claim shall be placed into the General Revenue Fund or the appropriate trust fund.
(6) State executive branch agencies and officers shall report to each substantive and fiscal committee of the Legislature having jurisdiction over the reporting agency on all potential settlements that may commit the state to:
(a) Spend in excess of current appropriations; or
(b) Make policy changes inconsistent with current state law.
The state executive branch agency or officer shall provide periodic updates to the appropriate legislative committees on these issues during the settlement process.
History.—s. 2, ch. 87-249; s. 1, ch. 94-181; s. 20, ch. 2001-56; s. 8, ch. 2001-266; s. 4, ch. 2005-152.
45.075 Expedited trials.—Upon the joint stipulation of the parties to any civil case, the court may conduct an expedited trial as provided in this section. Where two or more plaintiffs or defendants have a unity of interest, such as a husband and wife, they shall be considered one party for the purpose of this section. Unless otherwise ordered by the court or agreed to by the parties with approval of the court, an expedited trial shall be conducted as follows:
(1) All discovery shall be completed within 60 days after the court enters an order adopting the joint expedited trial stipulation.
(2) All interrogatories and requests for production must be served within 10 days after the court enters the order adopting the joint expedited trial stipulation, and all responses must be served within 20 days after receipt.
(3) The court shall determine the number of depositions required.
(4) The case may be tried to a jury.
(5) The case may be tried within 30 days after the 60-day discovery cutoff, if such schedule would not impose an undue burden on the court calendar.
(6) The trial must be limited to 1 day.
(7) The jury selection must be limited to 1 hour.
(8) The plaintiff will have no more than 3 hours to present its case, including the opening, all testimony and evidence, and the closing.
(9) The defendant will have no more than 3 hours to present its case, including the opening, all testimony and evidence, and the closing.
(10) The jury may be given “plain language” jury instructions at the beginning of the trial as well as a “plain language” jury verdict form. The parties must agree to the jury instructions and verdict form.
(11) The parties may introduce a verified written report of any expert and an affidavit of the expert’s curriculum vitae instead of calling the expert to testify at trial.
(12) At trial the parties may use excerpts from depositions, including video depositions, regardless of where the deponent lives or whether the deponent is available to testify.
(13) Except as otherwise provided in this section, the Florida Evidence Code and the Florida Rules of Civil Procedure apply.
(14) The court may refuse to grant continuances of the trial absent extraordinary circumstances.
History.—s. 6, ch. 99-225.