Senate Bill 0294c1
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    Florida Senate - 1999                            CS for SB 294
    By the Committee on Judiciary
    308-1838A-99
  1                      A bill to be entitled
  2         An act relating to debtors and creditors;
  3         amending s. 15.16, F.S.; providing for
  4         electronic filing of records with the
  5         Department of State; amending s. 30.17, F.S.;
  6         providing for phase-out of sheriff's execution
  7         docket; amending s. 30.231, F.S.; clarifying
  8         seizure of property for levy; amending s.
  9         48.021, F.S.; providing for a sheriff to
10         periodically add names of process servers to
11         list; creating s. 55.201, F.S.; requiring the
12         Department of State to establish a database of
13         judgment lien records; creating s. 55.202,
14         F.S.; providing for acquisition of a judgment
15         lien on personal property; creating s. 55.203,
16         F.S.; providing requirements for the content,
17         filing, and indexing of judgment lien
18         certificates by the Department of State;
19         creating s. 55.204, F.S.; providing for lapse
20         of a judgment lien; providing for acquisition
21         of a second judgment lien; creating s. 55.205,
22         F.S.; providing for the effect of a judgment
23         lien; creating s. 55.206, F.S.; providing for
24         amendment, termination, partial release,
25         assignment, tolling, or correction of a
26         recorded judgment lien; creating s. 55.207,
27         F.S.; providing for filing and effect of a
28         correction statement as to a judgment lien
29         record; creating s. 55.208, F.S.; providing for
30         phase-out of effect of writs of execution
31         delivered to a sheriff prior to a date certain;
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  1         creating s. 55.209, F.S.; providing for the
  2         responsibilities of the Department of State and
  3         for filing fees; amending s. 55.604, F.S.;
  4         limiting the effect of a foreign judgment as a
  5         lien on personal property in this state;
  6         amending s. 56.09, F.S.; providing for limited
  7         levy of executions against persons; amending s.
  8         56.21, F.S.; providing for notice of levy and
  9         execution sale and affidavit of levying
10         creditor to judgment creditors and certain
11         secured creditors; amending s. 56.27, F.S.;
12         providing for payment distribution of money
13         collected under execution; amending s. 56.29,
14         F.S.; clarifying who may file an affidavit for
15         purposes of supplementary proceedings; amending
16         s. 61.11, F.S.; requiring respondent to pay
17         certain costs and expenses associated with
18         writs of bodily attachment in connection with
19         court-ordered child support obligations;
20         amending s. 77.01, F.S.; providing entities
21         with right to writ of garnishment; creating s.
22         77.041, F.S.; providing for notice of
23         procedures for asserting exemptions and
24         requesting a hearing; amending s. 77.055, F.S.;
25         clarifying requirements for service of
26         garnishee's answer and notice of right to
27         dissolve writ of garnishment; amending s.
28         77.06, F.S.; providing for creation of judgment
29         lien upon service of writ of garnishment;
30         amending s. 222.12, F.S.; providing for taking
31         of oath before notary public regarding
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  1         exemptions from garnishment; amending s.
  2         679.301, F.S.; revising the definition for lien
  3         creditor; providing effective dates.
  4
  5  Be It Enacted by the Legislature of the State of Florida:
  6
  7         Section 1.  Section 15.16, Florida Statutes, is amended
  8  to read:
  9         15.16  Reproduction of records; admissibility in
10  evidence; electronic receipt and transmission of records;
11  certification; acknowledgment.--
12         (1)  The Department of State may cause to be made
13  copies of any records maintained by it by miniature
14  photographic microfilming or microphotographic processes or
15  any other photographic, mechanical, or other process
16  heretofore or hereafter devised, including electronic data
17  processing.
18         (2)  Photographs, nonerasable optical images, or
19  microphotographs in the form of film, facsimiles, or prints of
20  any records made in compliance with the provisions of this
21  section shall have the same force and effect as the originals
22  thereof and shall be treated as originals for the purpose of
23  their admissibility in evidence.  Duly certified or
24  authenticated reproductions of such photographs, nonerasable
25  optical images, or microphotographs shall be admitted in
26  evidence equally with the original photographs, nonerasable
27  optical images, or microphotographs.
28         (3)  The Department of State may cause to be received
29  electronically any records that are required to be filed with
30  it under chapter 55, pursuant to chapter 607, chapter 608,
31  chapter 617, chapter 620, chapter 621, chapter 679, chapter
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  1  713, or chapter 865, through facsimile or other electronic
  2  transfers, for the purpose of filing such records.  The
  3  originals of all such electronically transmitted records must
  4  be executed in the manner prescribed by the department
  5  provided by law and must contain in the lower left-hand corner
  6  of the first page the name, address, and telephone number of
  7  the preparer of the original and, if prepared by an attorney
  8  licensed in this state, the preparer's Florida Bar membership
  9  number.  The receipt of such electronic transfer constitutes
10  delivery to the department as required by law.
11         (4)  Notwithstanding any other provision of law, the
12  department may certify or acknowledge and electronically
13  transmit any record maintained by it.  The certification must
14  be evidenced by a certification code on each page transmitted
15  which must include the charter or filing number of the
16  document, date of transmission, and page number of the total
17  number of pages transmitted, and a sequential certification
18  number assigned by the department which will identify the
19  transmission and be available for verification of any
20  transmitted acknowledgment or certified document.
21         (5)  Notwithstanding any other law, for the purposes of
22  electronic filing If not otherwise provided by law, the
23  Department of State shall determine:
24         (a)  The appropriate format, which must be retrievable
25  or reproducible in typewritten or printed form and must be
26  legible.
27         (b)  The manner of execution, which may include any
28  symbol, manual, facsimile, conformed, or electronic signature
29  adopted by a person with the present intent to authenticate a
30  document.
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  1         (c)  The method of electronic transmission and fee
  2  payment for any document placed under its jurisdiction for
  3  filing or recordation.
  4         (d)  The amount of any fee surcharge for the use of an
  5  electronic filing format.
  6         (6)  The Department of State may utilize government or
  7  private-sector contractors in the promotion or provision of
  8  any electronic filing services., by rule, the appropriate
  9  format for, number of copies of, manner of execution of,
10  method of electronic transmission of, and amount of and method
11  of payment of fees for any document placed under its
12  jurisdiction for filing or recordation.
13         Section 2.  Section 30.17, Florida Statutes, is amended
14  to read:
15         30.17  Sheriff to keep an execution docket.--
16         (1)  The sheriff shall keep an execution docket, which
17  shall contain a list of all executions, orders and decrees
18  directed to the sheriff, in relation to the collection of
19  moneys, and a statement of all moneys credited on such orders,
20  executions and decrees, and when and to whom and by whom paid.
21         (2)  Said docket shall be subject to the inspection of
22  all parties interested.
23         (3)  The sheriff's failure to keep said docket, or to
24  allow inspection of the same, shall be considered a contempt
25  of court and subject him or her to a fine not exceeding $100,
26  at the discretion of the court.
27         (4)  On October 1, 2001, the sheriff shall cease
28  docketing newly delivered writs of executions. The sheriff
29  shall maintain the existing docket until October 1, 2003. Upon
30  the request of any person or entity who delivered a writ of
31  execution to the sheriff before October 1, 2001, the sheriff
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  1  shall provide written certification of the date on which the
  2  writ was delivered. The sheriff's duties under this section
  3  shall cease on October 1, 2003.
  4         Section 3.  Subsection (1) of section 30.231, Florida
  5  Statutes, is amended to read:
  6         30.231  Sheriffs' fees for service of summons,
  7  subpoenas, and executions.--
  8         (1)  The sheriffs of all counties of the state in civil
  9  cases shall charge fixed, nonrefundable fees for docketing and
10  service of process, according to the following schedule:
11         (a)  All summons or writs except executions: $20 for
12  each summons or writ to be served, except when more than one
13  summons or writ is issued at the same time out of the same
14  cause of action to be served upon one person or defendant at
15  the same time, in which case the sheriff shall be entitled to
16  one fee.
17         (b)  All writs except executions requiring a levy or
18  seizure of property: $50 in addition to the $20 fee as stated
19  in paragraph (a).
20         (c)  Witness subpoenas: $20 for each witness to be
21  served.
22         (d)  Executions:
23         1.  Twenty dollars for docketing and indexing each writ
24  of execution, regardless of the number of persons involved.
25         2.  Fifty dollars for each levy.
26         a.  A levy is considered made when any property or any
27  portion of the property listed or unlisted in the instructions
28  for levy is seized, or upon demand of the sheriff the writ is
29  satisfied by the defendant in lieu of seizure. Seizure
30  requires that the sheriff take actual possession, if
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  1  practicable, or alternatively, constructive possession of the
  2  property by order of the court.
  3         b.  When the instructions are for levy upon real
  4  property, a levy fee is required for each parcel described in
  5  the instructions.
  6         c.  When the instructions are for levy based upon
  7  personal property, one fee is allowed, although the property
  8  may be seized at different locations, conditional upon all of
  9  the items being advertised collectively and the sale being
10  held at a single location. However, if the property seized
11  cannot be sold at one location during the same sale as
12  advertised, but requires separate sales at different
13  locations, the sheriff is then authorized to impose a levy fee
14  for the property and sale at each location.
15         3.  Twenty dollars for advertisement of sale under
16  process.
17         4.  Twenty dollars for sale under process.
18         5.  Twenty dollars for deed, bill of sale, or
19  satisfaction of judgment.
20         Section 4.  Paragraph (a) of subsection (2) of section
21  48.021, Florida Statutes, 1998 Supplement, is amended to read:
22         48.021  Process; by whom served.--
23         (2)(a)  The sheriff of each county may, in his or her
24  discretion, establish an approved list of natural persons
25  designated as special process servers.  The sheriff may
26  periodically shall add to such list the names of those natural
27  persons who have met the requirements provided for in this
28  section.  Each natural person whose name has been added to the
29  approved list is subject to annual recertification and
30  reappointment by the sheriff.  The sheriff shall prescribe an
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  1  appropriate form for application for appointment. A reasonable
  2  fee for the processing of the application shall be charged.
  3         Section 5.  Section 55.201, Florida Statutes, is
  4  created to read:
  5         55.201  Central database of judgment liens on personal
  6  property.--The Department of State shall maintain a database
  7  of judgment lien records established in accordance with ss.
  8  55.201-55.209. The database information shall be accessible to
  9  the public via electronic means. The department may not permit
10  or provide the bulk sale or distribution of such database
11  information in any form.
12         Section 6.  Section 55.202, Florida Statutes, is
13  created to read:
14         55.202  Judgments, orders and decrees; lien on personal
15  property.--
16         (1)  A judgment lien securing the unpaid amount of any
17  money judgment may be acquired by the holder of a judgment
18  entered by:
19         (a)  A court of this state;
20         (b)  A court of the United States having jurisdiction
21  in this state;
22         (c)  A court of the United States or any other state to
23  the extent enforceable under the Florida Enforcement of
24  Foreign Judgments Act, ss. 55.501-55.509; or
25         (d)  A foreign state as defined in the Uniform
26  Out-of-Country Foreign Money-Judgment Recognition Act, ss.
27  55.601-55.607, from the time and to the extent enforceable
28  thereunder.
29         (2)  A judgment lien may be acquired on the judgment
30  debtor's interest in all personal property subject to
31  execution in this state, other than fixtures, money, and
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  1  negotiable instruments. A judgment lien is acquired by filing
  2  a judgment lien certificate in accordance with s. 55.203 with
  3  the Department of State after the judgment has become final
  4  and if no stay of the judgment or its enforcement is in effect
  5  at the time the certificate is filed. A judgment lien is
  6  effective as of the date of filing, but no lien attaches to
  7  property until the debtor acquires an interest in the
  8  property. Except as provided in s. 55.204(2), a judgment
  9  creditor may file only one effective judgment lien certificate
10  based upon a particular judgment.
11         (3)  Except as otherwise provided in s. 55.208, the
12  priority of a judgment lien acquired in accordance with this
13  section or s. 55.204(2) is established at the time the
14  judgment lien is recorded. Such judgment lien is deemed
15  recorded as of its effective date as provided in this section
16  or s. 55.204(2).
17         (4)  Any reference to the filing of a judgment lien
18  certificate in ss. 55.201-55.209 shall mean recording of such
19  document.
20         Section 7.  Section 55.203, Florida Statutes, is
21  created to read:
22         55.203  Judgment lien certificate; content, filing, and
23  indexing.--
24         (1)  An original judgment lien certificate, as provided
25  in s. 55.202, must include:
26         (a)  The legal name of each judgment debtor and, if a
27  recorded legal entity, the registered name and document filing
28  number as shown in the records of the Department of State;
29         (b)  The last known address and social security number,
30  except that in cases of default judgment, the social security
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  1  number must be included only if known, or federal employer
  2  identification number of each judgment debtor;
  3         (c)  The legal name of the judgment creditor and, if a
  4  recorded legal entity, the registered name and document filing
  5  number as shown in the records of the Department of State, and
  6  the name of the judgment creditor's attorney or duly
  7  authorized representative, if any;
  8         (d)  The address and social security number or federal
  9  employer identification number of the judgment creditor;
10         (e)  The identity of the court which entered the
11  judgment and the case number and the date the written judgment
12  was entered;
13         (f)  The amount due on the money judgment and the
14  applicable interest rate; and
15         (g)  The signature of the judgment creditor or the
16  judgment creditor's attorney or duly authorized
17  representative.
18         (2)  A second judgment lien certificate, as provided in
19  s. 55.204(2), must include the information required in
20  subsection (1) and must state the file number assigned to the
21  record of the original judgment lien certificate, the money
22  amount remaining unpaid, and the interest accrued thereon.
23         (3)  An amendment, as provided in s. 55.206, or a
24  correction statement, as provided in s. 55.207, must state the
25  file number of the judgment lien record to which the amendment
26  or correction statement relates and must state the action,
27  change, or statement to be added.
28         (4)  The Department of State shall examine, for
29  compliance with ss. 55.201-55.209, each document submitted for
30  filing and shall accept or reject the document accordingly.
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  1         (a)  For each judgment lien certificate filed, the
  2  department shall:
  3         1.  Create a record;
  4         2.  Assign a unique file number to the record;
  5         3.  Include the date of filing of the judgment lien
  6  certificate;
  7         4.  Maintain the record in a database accessible to the
  8  public via electronic means;
  9         5.  Index the judgment lien certificate according to
10  the name of each judgment debtor; and
11         6.  Index all subsequently filed documents relating to
12  an original judgment lien certificate in a manner that
13  associates them to the original judgment lien certificate.
14         (5)  The validity of a judgment lien certificate filed
15  under this section may not be defeated by technical or
16  clerical errors made in good faith which are not seriously
17  misleading, nor may any claim of estoppel be based on such
18  errors.
19         (6)  The Department of State shall prescribe mandatory
20  forms of all documents to be filed under this section.
21         Section 8.  Section 55.204, Florida Statutes, is
22  created to read:
23         55.204  Duration and continuation of judgment lien;
24  destruction of records.--
25         (1)  Except as provided in this section, a judgment
26  lien acquired under s. 55.202 lapses and becomes invalid 5
27  years after the date of filing the judgment lien certificate.
28         (2)  At any time within 6 months prior to the scheduled
29  lapse of a judgment lien acquired under s. 55.202, the
30  judgment creditor may acquire a second judgment lien by filing
31  a new judgment lien certificate. The second judgment lien
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  1  becomes effective on the date of lapse of the original
  2  judgment lien or on the date on which the judgment lien
  3  certificate is filed, whichever is later. The second judgment
  4  lien is deemed recorded on its effective date. The second
  5  judgment lien is deemed a new judgment lien and not a
  6  continuation of the original judgment lien. The second
  7  judgment lien permanently lapses and becomes invalid 5 years
  8  after its effective date, and no additional liens based on the
  9  original judgment may be obtained.
10         (3)  A judgment lien continues only as to itemized
11  property for an additional 90 days after lapse of the lien.
12  Such judgment lien will continue only if:
13         (a)  The property had been itemized and its location
14  described with sufficient particularity in the instructions
15  for levy;
16         (b)  The levy had been delivered to the sheriff prior
17  to the date of lapse of the lien to permit the sheriff to act;
18  and
19         (c)  The property was located in the county in which
20  the sheriff has jurisdiction at the time of delivery of the
21  instruction for levy. Subsequent removal of the property does
22  not defeat the lien. A court may order continuation of the
23  lien beyond the 90-day period on a showing that extraordinary
24  circumstances have prevented levy.
25         (4)  The date of lapse of a judgment lien whose
26  enforceability has been temporarily stayed or enjoined as a
27  result of any legal or equitable proceeding is tolled until 30
28  days after the stay or injunction is terminated.
29         (5)  The Department of State shall maintain each
30  judgment lien record and all information contained therein for
31
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  1  a minimum of 1 year after the judgment lien lapses in
  2  accordance with this section.
  3         Section 9.  Section 55.205, Florida Statutes, is
  4  created to read:
  5         55.205  Effect of judgment lien.--
  6         (1)  A valid judgment lien gives the judgment creditor
  7  the right to take possession of the property subject to levy
  8  through writ of execution, garnishment, or other judicial
  9  process. A judgment creditor who has not filed a judgment lien
10  certificate in accordance with s. 55.203 or whose lien has
11  lapsed may nevertheless take possession of the judgment
12  debtor's property through such other judicial process. A
13  judgment creditor proceeding by writ of execution obtains a
14  lien as of the time of levy and only on the property levied
15  upon. Except as provided in s. 55.208, such judgment creditor
16  takes subject to the claims and interest of priority judgment
17  creditors.
18         (2)  A buyer in the ordinary course of business as
19  defined in s. 671.201(9) takes free of a judgment lien created
20  under this section even though the buyer knows of its
21  existence. A valid security interest as defined in chapter 679
22  in after-acquired property of the judgment debtor which is
23  perfected prior to the effective date of a judgment lien takes
24  priority over the judgment lien on the after-acquired
25  property.
26         Section 10.  Section 55.206, Florida Statutes, is
27  created to read:
28         55.206  Amendment of judgment lien record; termination,
29  partial release, assignment, continuation, tolling,
30  correction.--
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  1         (1)  An amendment to a judgment lien acquired under s.
  2  55.202 may be filed by the judgment creditor of record, which
  3  may provide for:
  4         (a)  The termination, partial release, or assignment of
  5  the judgment creditor's interest in a judgment lien;
  6         (b)  The continuation and termination of the
  7  continuation of a judgment lien, as provided in s. 55.204(3);
  8         (c)  The tolling and termination of the tolling of a
  9  lapse of a judgment lien, as provided in s. 55.204(4); or
10         (d)  The correction or change of any other information
11  provided in the record of a judgment lien.
12         (2)  Within 30 days following written demand by a
13  judgment debtor after the obligation underlying a judgment
14  lien has been fully or partially released, the judgment
15  lienholder must send to the judgment debtor a statement
16  indicating that there is no longer a claim for a lien on the
17  personal property of the judgment debtor or that the judgment
18  lien has been partially released and setting forth the value
19  of the lien remaining unpaid as of the date of the statement.
20  A statement signed by an assignee must include or be
21  accompanied by a separate written acknowledgement of
22  assignment signed by the judgment creditor of record. If the
23  judgment lienholder fails to send such a statement within 30
24  days after proper written demand therefor, the judgment
25  lienholder is liable to the judgment debtor for $100, and for
26  any loss, including reasonable attorney's fees, caused by such
27  failure to the judgment debtor.
28         (3)  The judgment debtor, the judgment creditor, or
29  assignee may file such statement with the Department of State.
30         Section 11.  Section 55.207, Florida Statutes, is
31  created to read:
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  1         55.207  Correction of judgment lien record.--
  2         (1)  A person may file with the Department of State a
  3  correction statement with respect to a judgment lien record,
  4  as provided in s. 55.203, indexed under the person's name if
  5  the person believes that the record is inaccurate or that the
  6  judgment lien certificate was wrongfully filed.
  7         (2)  A correction statement must:
  8         (a)  State the judgment debtor named and the file
  9  number assigned to the judgment lien record to which the
10  correction statement relates;
11         (b)  Indicate that it is a correction statement;
12         (c)  Provide the basis for the person's belief that the
13  judgment lien certificate was wrongfully filed or the record
14  is inaccurate; and
15         (d)  Indicate the manner in which the person believes
16  the record should be corrected to cure any inaccuracy.
17         (3)  The filing of a correction statement does not
18  affect the effectiveness of the judgment lien or other filed
19  record.
20         Section 12.  Section 55.208, Florida Statutes, is
21  created to read:
22         55.208  Effect of recorded judgment lien on writs of
23  execution previously delivered to a sheriff.--
24         (1)  Any lien created by a writ of execution which has
25  been delivered to the sheriff of any county prior to October
26  1, 2001, remains in effect for 2 years thereafter as to any
27  property of the judgment debtor located in that county before
28  October 1, 2001, and remaining within that county after that
29  date. As to any property of the judgment debtor brought into
30  the county on or after October 1, 2001, such writs create no
31  lien, inchoate or otherwise.
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  1         (2)  If a judgment creditor who has delivered a writ of
  2  execution to a sheriff in any county prior to October 1, 2001,
  3  properly files a judgment lien certificate with the Department
  4  of State by October 1, 2003, together with a certification by
  5  the sheriff as to the date on which the writ was delivered,
  6  the resulting judgment lien is deemed recorded on the date the
  7  writ was delivered to the sheriff as to all leviable property
  8  of the judgment debtor which is located in that county on
  9  October 1, 2001, and that remains continuously in that county
10  thereafter. As to all other property of the judgment debtor,
11  the effective date of the judgment lien is as provided in s.
12  55.202. The duration of all judgment liens is as provided in
13  ss. 55.204 and 55.205(3), regardless of the date on which a
14  lien is determined to have been recorded.
15         (3)  If a judgment creditor who has delivered a writ of
16  execution to a sheriff in any county prior to October 1, 2001,
17  does not properly file a judgment lien certificate with the
18  Department of State by October 1, 2003, such writ is
19  considered to have been abandoned and to be of no effect after
20  October 1, 2003.
21         Section 13.  Section 55.209, Florida Statutes, is
22  created to read:
23         55.209  Department of State; processing fees,
24  responsibilities.--
25         (1)  The Department of State shall collect the
26  following nonrefundable processing fees for all documents
27  filed in accordance with ss. 55.201-55.209:
28         (a)  For any judgment lien certificate or other
29  documents permitted to be filed, $20.
30         (b)  For the certification of any recorded document,
31  $10.
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  1         (c)  For copies of judgment lien documents which are
  2  produced by the Department of State, $1 per page or part
  3  thereof. However, no charge may be collected for copies
  4  provided in an online electronic format via the Internet.
  5         (d)  For indexing a judgment lien by multiple judgment
  6  debtor names, $5 per additional name.
  7         (e)  For each additional facing page attached to a
  8  judgment lien certificate or document permitted to be filed,
  9  $5.
10         (2)  Unless otherwise provided by law, the Department
11  of State may not conduct any search of the database
12  established under s. 55.201 to determine the existence of any
13  judgment lien record or to perform any service other than in
14  connection with those services for which payment of services
15  are required under this section. The information maintained in
16  the database is for public notice purposes only and the
17  department may make no certification or determination of the
18  validity of any judgment lien acquired under ss. 55.202 and
19  55.204.
20         (3)  The Department of State shall ensure that the
21  database information is available and accessible solely for
22  public use via the Internet or other electronic means. The
23  department may not permit or provide for the bulk sale or
24  distribution of such database information in any form.
25         Section 14.  Subsection (8) is added to section 55.604,
26  Florida Statutes, to read:
27         55.604  Recognition and enforcement.--Except as
28  provided in s. 55.605, a foreign judgment meeting the
29  requirements of s. 55.603 is conclusive between the parties to
30  the extent that it grants or denies recovery of a sum of
31
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  1  money. Procedures for recognition and enforceability of a
  2  foreign judgment shall be as follows:
  3         (8)  A judgment lien on personal property is acquired
  4  only when a judgment lien certificate satisfying the
  5  requirements of s. 55.203 has been filed with the Department
  6  of State.
  7         Section 15.  Section 56.09, Florida Statutes, is
  8  amended to read:
  9         56.09  Executions against corporations and persons;
10  generally.--
11         (1)  On any judgment against a corporation, plaintiff
12  may have a writ of an execution levied on the current money as
13  well as on the goods and chattels, lands and tenements of said
14  corporation.
15         (2)  On any judgment against a person, a plaintiff may
16  have a writ of execution levied on the person's money in
17  excess of $1,000. Such limitation on levy of execution does
18  not create an exemption, nor does it limit the availability of
19  any other exemption provided by law. For purposes of this
20  subsection only, the term "money" means cash, checks, money
21  orders, and the like. Nothing in this subsection authorizes
22  the physical search of a person.
23         Section 16.  Section 56.21, Florida Statutes, is
24  amended to read:
25         56.21  Execution sales; notice.--Notice of all sales
26  under execution shall be given by advertisement once each week
27  for 4 successive weeks in a newspaper published in the county
28  in which the sale is to take place. The time of such notice
29  may be shortened in the discretion of the court from which the
30  execution issued, upon affidavit that the property to be sold
31  is subject to decay and will not sell for its full value if
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  1  held until date of sale. On or before the date of the first
  2  publication or posting of the notice of sale, a copy of the
  3  notice of sale shall be furnished by certified mail to the
  4  attorney of record of the judgment debtor, or to the judgment
  5  debtor at the judgment debtor's last known address if the
  6  judgment debtor does not have an attorney of record. Such copy
  7  of the notice of sale shall be mailed even though a default
  8  judgment was entered. When levying upon personal property, a
  9  notice of such levy and execution sale and a copy of the
10  affidavit required by s. 56.27(4) shall be made by the levying
11  creditor to the attorney of record of the judgment creditor or
12  the judgment creditor who has filed a judgment lien
13  certificate as provided in s. 55.202 and to all secured
14  creditors who have filed financing statements as provided in
15  s. 679.401 in the name of the judgment debtor reflecting a
16  security interest in property of the kind to be sold at the
17  execution sale. Such notice shall be made in the same manner
18  as notice is made to any judgment debtor under this section.
19  When levying upon real property, notice of such levy and
20  execution sale shall be made to the property owner of record
21  in the same manner as notice is made to any judgment debtor
22  pursuant to this section. When selling real or personal
23  property, the sale date shall not be earlier than 30 days
24  after the date of the first advertisement.
25         Section 17.  Section 56.27, Florida Statutes, 1998
26  Supplement, is amended to read:
27         56.27  Executions; payment to execution creditor of
28  money collected.--
29         (1)  All money received under executions shall be paid,
30  in the order prescribed, to the following:  the sheriff for
31  costs, the levying creditor in the amount of $500 as
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  1  liquidated expenses and the judgment lienholder having the
  2  earliest recorded judgment lien acquired under s. 55.202, as
  3  set forth in an affidavit required by s. 56.27(4), or his or
  4  her attorney, in satisfaction of the judgment lien, provided
  5  that the judgment lien has not lapsed at the time of the levy
  6  party in whose favor the execution was issued or his or her
  7  attorney. The receipt of the attorney shall be a release of
  8  the officer paying the money to him or her. When the name of
  9  more than one attorney appears in the court file, the money
10  shall be paid to the attorney who originally commenced the
11  action or who made the original defense unless the file shows
12  that another attorney has been substituted.
13         (2)  When property sold under execution brings more
14  than the amount needed to satisfy the provisions of subsection
15  (1), the surplus shall be paid in the order of priority to any
16  judgment lienholders whose judgment liens have not lapsed.
17  Priority shall be based on the effective date of the judgment
18  lien acquired under s. 55.202, as set forth in an affidavit
19  required under s. 56.27(4). If there is a surplus after all
20  valid judgment liens and execution liens have been satisfied
21  of the execution, the surplus must be paid to the defendant
22  or, if there is another writ against the defendant docketed
23  and indexed with the sheriff, the surplus must be paid to the
24  junior writ.
25         (3)  The value of the property levied upon shall not be
26  considered excessive unless the value unreasonably exceeds the
27  total debt reflected in all unsatisfied judgment liens that
28  have not lapsed and any unsatisfied lien of the levying
29  creditor.
30         (4)  On or before the date of the first publication or
31  posting of the notice of sale provided for under s. 56.21, the
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  1  levying creditor shall file an affidavit setting forth the
  2  following as to the judgment debtor:
  3         (a)  An attestation that the levying creditor has
  4  reviewed the database or judgment lien records established in
  5  accordance with ss. 55.201-55.209 and that the information
  6  contained in the affidavit based on that review is true and
  7  correct;
  8         (b)  The information required under ss. 55.203(1) and
  9  55.203(2) for each judgment lien certificate indexed under the
10  name of the judgment debtor as to each judgment creditor; the
11  file number assigned to the record of the original and, if
12  any, the second judgment lien; and the date of filing for each
13  judgment lien certificate under s. 55.202 or s. 55.204(2); and
14         (c)  A statement that the levying creditor either does
15  not have any other levy in process or, if another levy is in
16  process, the levying creditor believes in good faith that the
17  total value of the property under execution does not exceed
18  the amount of outstanding judgments.
19         (5)  A sheriff paying money received under an execution
20  in accordance with the information contained in the affidavit
21  under subsection (4) is not liable to anyone for damages
22  arising from a wrongful levy.
23         Section 18.  Subsection (1) of section 56.29, Florida
24  Statutes, is amended to read:
25         56.29  Proceedings supplementary.--
26         (1)  When any person sheriff holds an unsatisfied
27  execution and has delivered a writ of execution to any
28  sheriff, the plaintiff in execution may file an affidavit so
29  stating and that the execution is valid and outstanding and
30  thereupon is entitled to these proceedings supplementary to
31  execution.
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  1         Section 19.  Paragraph (a) of subsection (2) of section
  2  61.11, Florida Statutes, is amended to read:
  3         61.11  Writs.--
  4         (2)(a)  When the court issues a writ of bodily
  5  attachment in connection with a court-ordered child support
  6  obligation, the writ or attachment to the writ must include,
  7  at a minimum, such information on the respondent's physical
  8  description and location as is required for entry of the writ
  9  into the Florida Crime Information Center telecommunications
10  system and authorization for the assessment and collection of
11  the actual costs associated with the service of the writ and
12  transportation of the respondent in compliance thereof. In
13  addition to the purge payment, the respondent shall be
14  responsible for payment of all court costs, sheriff fees as
15  provided in s. 30.231, actual costs of detention or
16  imprisonment, and other related expenses associated with the
17  service of the writ and transportation of the respondent. The
18  writ shall direct that Service and execution of the writ may
19  be made on any day of the week and any time of the day or
20  night.
21         Section 20.  Section 77.01, Florida Statutes, is
22  amended to read:
23         77.01  Right to garnishment.--Every person or entity
24  who has sued to recover a debt or has recovered judgment in
25  any court against any person or entity, natural or corporate,
26  has a right to a writ of garnishment, in the manner
27  hereinafter provided, to subject any debt due or any debt
28  under a negotiable instrument that will become due to
29  defendant by a third person, and any tangible or intangible
30  personal property of defendant in the possession or control of
31  a third person.  The officers, agents, and employees of any
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  1  companies or corporations are third persons in regard to the
  2  companies or corporations, and as such are subject to
  3  garnishment after judgment against the companies or
  4  corporations.
  5         Section 21.  Section 77.041, Florida Statutes, is
  6  created to read:
  7         77.041  Notice to defendant for claim of exemption from
  8  garnishment; procedure for hearing.--
  9         (1)  Upon application for a writ of garnishment by a
10  plaintiff, the clerk of the court shall attach to the writ the
11  following "Notice to Defendant":
12
13         NOTICE TO DEFENDANT OF RIGHT AGAINST GARNISHMENT
14               OF WAGES, MONEY, AND OTHER PROPERTY
15         The Writ of Garnishment delivered to you with this
16  Notice means that wages, money, and other property belonging
17  to you have been garnished to pay a court judgment against
18  you. HOWEVER, YOU MAY BE ABLE TO KEEP OR RECOVER YOUR WAGES,
19  MONEY, OR PROPERTY. READ THIS NOTICE CAREFULLY.
20         State and federal laws provide that certain wages,
21  money, and property, even if deposited in a bank, savings and
22  loan, or credit union, may not be taken to pay certain types
23  of court judgments. Such wages, money, and property are exempt
24  from garnishment. The major exemptions are listed below on the
25  form for Claim of Exemption and Request for Hearing. This list
26  does not include all possible exemptions. You should consult a
27  lawyer for specific advice.
28         TO KEEP YOUR WAGES, MONEY, AND OTHER PROPERTY
29         FROM BEING GARNISHED, OR TO GET BACK ANYTHING
30         ALREADY TAKEN, YOU MUST COMPLETE A FORM FOR
31         CLAIM OF EXEMPTION AND REQUEST FOR HEARING AS
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  1         SET FORTH BELOW AND HAVE THE FORM NOTARIZED.
  2         YOU MUST FILE THE FORM WITH THE CLERK'S OFFICE
  3         WITHIN 20 DAYS AFTER THE DATE YOU RECEIVE THIS
  4         NOTICE OR YOU MAY LOSE IMPORTANT RIGHTS. YOU
  5         MUST ALSO MAIL OR DELIVER A COPY OF THIS FORM
  6         TO THE PLAINTIFF AND THE GARNISHEE AT THE
  7         ADDRESSES LISTED ON THE WRIT OF GARNISHMENT.
  8         If you request a hearing, it will be held as soon as
  9  possible after your request is received by the court. The
10  plaintiff must file any objection within 2 business days, or
11  alternatively, 7 days if you mailed a copy of the form for
12  Claim of Exemption and Request for Hearing to the plaintiff.
13  If the plaintiff files an objection to your Claim of Exemption
14  and Request for Hearing, the clerk will notify you and the
15  other parties of the time and date of the hearing. You may
16  attend the hearing with or without an attorney. If the
17  plaintiff fails to file an objection, no hearing is required,
18  the writ of garnishment will be dissolved and your wages,
19  money, or property will be released.
20         YOU SHOULD FILE THE FORM FOR CLAIM OF EXEMPTION
21         IMMEDIATELY TO KEEP YOUR WAGES, MONEY, OR
22         PROPERTY FROM BEING APPLIED TO THE COURT
23         JUDGMENT. THE CLERK CANNOT GIVE YOU LEGAL
24         ADVICE. IF YOU NEED LEGAL ASSISTANCE YOU SHOULD
25         SEE A LAWYER. IF YOU CAN'T AFFORD A PRIVATE
26         LAWYER, LEGAL SERVICES MAY BE AVAILABLE.
27         CONTACT YOUR LOCAL BAR ASSOCIATION OR ASK THE
28         CLERK'S OFFICE ABOUT ANY LEGAL SERVICES PROGRAM
29         IN YOUR AREA.
30         CLAIM OF EXEMPTION AND REQUEST FOR HEARING
31
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  1  I claim exemptions from garnishment under the following
  2  categories as checked:
  3           1.  Head of family wages. (You must check a
  4           or b below.)
  5           a.  I provide more than one half of the
  6           support for a child or other dependent and
  7           have net earnings of $500 or less per week.
  8           b.  I provide more than one half of the
  9           support for a child or other dependent, have
10           net earnings of more than $500 per week, but
11           have not agreed in writing to have my wages
12           garnished.
13           2.  Social Security benefits.
14           3.  Supplemental Security Income benefits.
15           4.  Public assistance (welfare).
16           5.  Workers' Compensation.
17           6.  Unemployment Compensation.
18           7.  Veterans' benefits.
19           8.  Retirement benefits.
20           9.  Life insurance benefits or cash surrender
21           value of a life insurance policy.
22           10.  Other
23                                         (explain)
24
25  I request a hearing to decide the validity of my claim. Notice
26  of the hearing should be given to me at:
27
28  Address:                                                    
29
30  Telephone number:               
31
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  1  The statements made in this request are true to the best of my
  2  knowledge and belief.
  3
  4                              
  5
  6  Defendant's signature
  7
  8  Date                 
  9
10  STATE OF FLORIDA
11
12  COUNTY OF
13
14  Sworn and subscribed to before me this ........ day of
15  ........(month and year), by (name of person making
16  statement)....................
17
18  Notary Public/Deputy Clerk
19
20  Personally Known ........OR Produced Identification
21  ....................
22  Type of Identification Produced ....................
23         (2)  The plaintiff must mail, by first class, a copy of
24  the writ of garnishment, a copy of the motion for writ of
25  garnishment, and the "Notice to Defendant" to the defendant's
26  last known address within 5 business days after the writ is
27  issued or 3 business days after the writ is served on the
28  garnishee, whichever is later. However, if such documents are
29  returned as undeliverable by the post office, or if the last
30  known address is not discoverable after diligent search, the
31  plaintiff must mail, by first class, the documents to the
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  1  defendant at the defendant's place of employment. The
  2  plaintiff shall file in the proceeding a certificate of such
  3  service.
  4         (3)  Upon the filing by a defendant of a claim of
  5  exemption and request for hearing, a hearing will be held as
  6  soon as is practicable to determine the validity of the
  7  claimed exemptions. If the plaintiff does not file a sworn
  8  written statement that contests the defendant's claim of
  9  exemption within 2 business days, or alternatively 7 business
10  days, if the claim and request were served by mail, no hearing
11  is required and the clerk must automatically dissolve the writ
12  and notify the parties of the dissolution by mail.
13         Section 22.  Section 77.055, Florida Statutes, is
14  amended to read:
15         77.055  Service of garnishee's answer and notice of
16  right to dissolve writ Notice to defendant and other
17  interested persons.--Within 5 days after service of the
18  garnishee's answer on the plaintiff or after the time period
19  for the garnishee's answer has expired, the plaintiff shall
20  serve, by mail, the following documents: a copy of the writ, a
21  copy of the garnishee's answer, and a notice advising, and a
22  certificate of service.  The notice shall advise the recipient
23  that he or she must move to dissolve the writ of garnishment
24  within 20 days after the date indicated on the certificate of
25  service in the notice if any allegation in the plaintiff's
26  motion for writ of garnishment is untrue within the time
27  period set forth in s. 77.07(2) or be defaulted and that he or
28  she may have exemptions from the garnishment which must be
29  asserted as a defense.  The plaintiff shall serve these
30  documents on the defendant at the defendant's last known
31  address and any other address disclosed by the garnishee's
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  1  answer and on any other person disclosed in the garnishee's
  2  answer to have any ownership interest in the deposit, account,
  3  or property controlled by the garnishee. The plaintiff shall
  4  file in the proceeding a certificate of such service.
  5         Section 23.  Subsection (1) of section 77.06, Florida
  6  Statutes, is amended to read:
  7         77.06  Writ; effect.--
  8         (1)  Service of the writ shall make garnishee liable
  9  for all debts due by him or her to defendant and for any
10  tangible or intangible personal property of defendant in the
11  garnishee's possession or control at the time of the service
12  of the writ or at any time between the service and the time of
13  the garnishee's answer. Service of the writ creates a lien in
14  or upon any such debts or property at the time of service or
15  at the time such debts or property come into the garnishee's
16  possession or control.
17         Section 24.  Section 222.12, Florida Statutes, is
18  amended to read:
19         222.12  Proceedings for exemption.--Whenever any money
20  or other thing due for labor or services as aforesaid is
21  attached by such process, the person to whom the same is due
22  and owing may make oath before the officer who issued the
23  process or before a notary public that the money attached is
24  due for the personal labor and services of such person, and
25  she or he is the head of a family residing in said state.
26  When such an affidavit is made, notice of same shall be
27  forthwith given to the party, or her or his attorney, who sued
28  out the process, and if the facts set forth in such affidavit
29  are not denied under oath within 2 business days after the
30  service of said notice, the process shall be returned, and all
31  proceedings under the same shall cease.  If the facts stated
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  1  in the affidavit are denied by the party who sued out the
  2  process within the time above set forth and under oath, then
  3  the matter shall be tried by the court from which the writ or
  4  process issued, in like manner as claims to property levied
  5  upon by writ of execution are tried, and the money or thing
  6  attached shall remain subject to the process until released by
  7  the judgment of the court which shall try the issue.
  8         Section 25.  Subsections (2) and (3) of section
  9  679.301, Florida Statutes, are amended to read:
10         679.301  Persons who take priority over unperfected
11  security interests; right of "lien creditor."--
12         (2)  If the secured party files with respect to a
13  purchase money security interest before or within 15 days
14  after the debtor receives possession of the collateral, the
15  secured party he or she takes priority over the rights of a
16  transferee in bulk or of a lien creditor which arise between
17  the time the security interest attaches and the time of
18  filing.
19         (3)  A "lien creditor" means a creditor who has
20  acquired a lien on the property involved by attachment, levy,
21  or the like and includes a judgment lienholder as provided
22  under ss. 55.202-55.209, an assignee for benefit of creditors
23  from the time of assignment, and a trustee in bankruptcy from
24  the date of the filing of the petition or a receiver in equity
25  from the time of appointment.
26         Section 26.  This act shall take effect October 1,
27  1999, except that sections 5 through 14, and sections 16
28  through 18 shall take effect October 1, 2001.
29
30
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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                              SB 294
  3
  4  Provides expressly that seizure of property by the sheriff may
    be actual or alternatively, constructive.
  5
    Provides the sheriffs with the option to periodically update
  6  the list of process servers.
  7  Clarifies and adds to the proposed statutory framework for
    perfecting and establishing priority claims of judgment liens
  8  on personal property through the maintenance of a central
    database by the Department of State. Specifically, it:
  9
          permits a judgment creditor to amend judgment lien
10        records to reflect the continuation, tolling, partial
          release, assignment or correction of a judgment lien;
11
          phases-out the sheriff's execution docket as required
12        under s. 30.17, F.S.;
13        requires a notice of levy, execution and affidavit of
          levying creditor to be provided to certain judgment
14        creditors and secured creditors;
15        provides for the order of distribution of money
          collected under execution;
16
          requires an affidavit of levying creditor to attest
17        review of judgment lien database;
18        redefines "lien creditor" to include a judgement
          lienholder for personal property as established under
19        the new provisions.
20  Allows a writ of execution to be made on a person's money in
    excess of $1,000.
21
    Clarifies that when a person (rather than a sheriff) holds an
22  unsatisfied lien, the plaintiff may then file an affidavit to
    institute proceedings supplementary.
23
    Expressly provides for the respondent's liability for certain
24  costs, fees, and expenses associated with the service of a
    writ of bodily attachment in connection with a child-support
25  obligation.
26  Revises certain garnishment provisions, specifically those
    relating to notice to defendant, claim for persons seeking
27  exemptions and a right to a hearing. Allows oaths to be taken
    before a notary public for exemptions, and provides that a
28  lien is created upon service of writ of garnishment.
29  Provides that certain provisions relating to the statutory
    framework for judgment liens on personal property will take
30  effect October 1, 2001, whereas other provisions will take
    effect October 1, 1999.
31
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