Senate Bill 0294c1
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Florida Senate - 1999 CS for SB 294
By the Committee on Judiciary
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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
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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
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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:
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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.
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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.
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