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

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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

31

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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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