House Bill hb0601

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    Florida House of Representatives - 2001                 HB 601

        By Representative Pickens






  1                      A bill to be entitled

  2         An act relating to judgment liens on personal

  3         property; amending s. 55.201, F.S.; revising

  4         language with respect to the central database

  5         of judgment liens on certain personal property;

  6         amending s. 55.202, F.S.; revising language

  7         with respect to liens on personal property

  8         which are the result of judgments, orders, and

  9         decrees; amending s. 55.203, F.S.; revising

10         language with respect to judgment lien

11         certificates; deleting the requirement of the

12         inclusion of certain information; amending s.

13         55.204, F.S.; revising language with respect to

14         the duration and continuation of a judgment

15         lien; revising a timeframe for the acquisition

16         of a second judgment lien; increasing the time

17         period for the retention of a lien file by the

18         Department of State; amending s. 55.205, F.S.;

19         revising language with respect to the effect of

20         a judgment lien; providing for certain liens to

21         be superior to a judgment lien; amending s.

22         55.206, F.S.; revising language with respect to

23         the amendment of a filed judgment lien;

24         amending s. 55.207, F.S.; revising language

25         with respect to the correction of a judgment

26         lien file; amending s. 55.208, F.S.; revising

27         language with respect to the effect of a filed

28         judgment lien on writs of execution previously

29         delivered to a sheriff; amending s. 55.209,

30         F.S.; revising language with respect to the

31         duties of the Department of State in collecting

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  1         processing fees for filed documents; amending

  2         s. 55.604, F.S.; revising language with respect

  3         to the recognition and enforcement of certain

  4         foreign judgments; amending s. 55.605, F.S.;

  5         revising language with respect to grounds for

  6         nonrecognition; eliminating the requirement

  7         that the department maintain a described list;

  8         amending s. 56.21, F.S.; revising language with

  9         respect to execution sales; amending s. 56.27,

10         F.S.; revising language with respect to

11         executions; providing effective dates.

12

13  Be It Enacted by the Legislature of the State of Florida:

14

15         Section 1.  Section 55.201, Florida Statutes, is

16  amended to read:

17         55.201  Central database of judgment liens on certain

18  personal property.--The Department of State shall maintain a

19  database of judgment lien files records regarding certain

20  personal property as described and established in accordance

21  with ss. 55.201-55.209.

22         Section 2.  Section 55.202, Florida Statutes, is

23  amended to read:

24         55.202  Judgments, orders, and decrees; lien on

25  personal property.--

26         (1)  A judgment lien securing the unpaid amount of any

27  money judgment may be acquired by the holder of a judgment

28  entered by:

29         (a)  Enforceable under the laws of Florida or of the

30  United States A court of this state;

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  1         (b)  A court of the United States having jurisdiction

  2  in this state;

  3         (c)  A court of the United States or any other state to

  4  the extent enforceable under the Florida Enforcement of

  5  Foreign Judgments Act, ss. 55.501-55.509;

  6         (d)  A foreign state as defined in the Uniform

  7  Out-of-country Foreign Money-Judgment Recognition Act, ss.

  8  55.601-55.607, from the time and to the extent enforceable

  9  thereunder;

10         (b)(e)  Entered by an issuing tribunal with respect to

11  a support order being enforced in this state pursuant to

12  chapter 88; or

13         (c)(f)  Enforceable by operation of law pursuant to s.

14  61.14(6).

15         (2)  A judgment lien may be acquired on a the judgment

16  debtor's interest in all personal property in this state

17  subject to execution under s. 56.061 in this state, other than

18  fixtures, money, negotiable instruments, and mortgages.

19         (a)  A judgment lien is acquired by filing recording a

20  judgment lien certificate in accordance with s. 55.203 with

21  the Department of State after the judgment has become final

22  and if no stay of the judgment or its enforcement is then in

23  effect at the time the certificate is filed.

24         (b)  For any liens, assessments, or judgments collected

25  by the Department of Revenue tax lien or assessment granted by

26  law to the state or any of the political subdivisions for any

27  tax enumerated in s. 72.011, a judgment lien may be acquired

28  by filing the judgment recording the lien certificate

29  information or warrant with the Department of State in

30  accordance with subsection (5).

31

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  1         (c)  Except as provided in s. 55.208, the effective

  2  date of a judgment lien is the date, including time of day, of

  3  filing. However, A judgment lien is effective as of the date

  4  of recording, but no lien attaches to property and a creditor

  5  does not become a lien creditor as to liens under chapter 679

  6  until the debtor acquires an interest in the property.

  7  Priority among competing judgment liens is determined in order

  8  of effective date.

  9         (d)  Except as provided in s. 55.204(3), a judgment

10  creditor may file record only one effective judgment lien

11  certificate based upon a particular judgment.

12         (3)  Except as otherwise provided in s. 55.208, the

13  priority of a judgment lien acquired in accordance with this

14  section or s. 55.204(3) is established at the time the

15  judgment lien is filed recorded. Such judgment lien is deemed

16  filed recorded as of its effective date as provided in this

17  section or s. 55.204(3).

18         (4)  As used in ss. 55.201-55.209, the terms "holder of

19  a judgment" and "judgment creditor" include the Department of

20  Revenue with respect to a judgment being enforced by the

21  Department of Revenue as the state IV-D agency.

22         (5)  Liens, assessments, warrants, or judgments filed

23  pursuant to paragraph (2)(b) administered by or secured on

24  behalf of any state agency or political subdivision of the

25  state may be filed directly into the central database by the

26  Department of Revenue such agency or subdivision through

27  electronic or information data exchange programs approved by

28  the Department of State.

29         Section 3.  Section 55.203, Florida Statutes, is

30  amended to read:

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  1         55.203  Judgment lien certificate; content, filing

  2  recording, and indexing.--

  3         (1)  An original judgment lien certificate, as provided

  4  in s. 55.202, must include:

  5         (a)  The legal name of each judgment debtor and, if a

  6  recorded legal entity, the registered name and document filing

  7  number as shown in the records of the Department of State.

  8         (b)  The last known address and, only if shown on the

  9  judgment itself social security number, federal identification

10  number, or, in the instance in which the judgment creditor is

11  a state agency or a political subdivision of the state, a

12  taxpayer or other distinct identification number of each

13  judgment debtor, except that in cases of default judgment, the

14  social security number must be included only if known, or

15  federal employer identification number of each judgment

16  debtor.

17         (c)  The legal name of the judgment creditor and, if a

18  recorded legal entity, the registered name and document filing

19  number as shown in the records of the Department of State, and

20  the name of the judgment creditor's attorney or duly

21  authorized representative, if any.

22         (d)  The address and social security number or federal

23  employer identification number of the judgment creditor.

24         (e)  The identity of the court which entered the

25  judgment and the case number and the date the written judgment

26  was entered.

27         (f)  The amount due on the money judgment and the

28  applicable interest rate.

29         (g)  The signature of the judgment creditor or the

30  judgment creditor's attorney or duly authorized

31  representative.

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  1         (h)  With respect to a lien created by a delivery of a

  2  writ of execution to a sheriff prior to October 1, 2001, an

  3  affidavit by the judgment creditor which attests that the

  4  person or entity possesses any documentary evidence of the

  5  date of delivery of the writ, and a statement of that date or

  6  a certification by the sheriff of the date as provided in s.

  7  30.17(4).

  8         (2)  A second judgment lien certificate, as provided in

  9  s. 55.204(3), must include the information required in

10  subsection (1) and must state the file number assigned to the

11  file record of the original judgment lien certificate, the

12  money amount remaining unpaid, and the interest accrued

13  thereon.

14         (3)  An amendment, as provided in s. 55.206, or a

15  correction statement, as provided in s. 55.207, must state the

16  file number of the judgment lien file record to which the

17  amendment or correction statement relates and must state the

18  action, change, or statement to be added.

19         (4)  The Department of State shall examine, for

20  compliance with ss. 55.201-55.209, each document submitted for

21  filing recording and shall accept or reject the document

22  accordingly. For each judgment lien certificate filed

23  recorded, the department shall:

24         (a)  Create a file record.

25         (b)  Assign a unique file number to the record.

26         (c)  Include the date and time of filing of the

27  judgment lien certificate.

28         (d)  Maintain the file record in a database accessible

29  to the public via the Internet.

30         (e)  Index the judgment lien certificate according to

31  the name of each judgment debtor.

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  1         (f)  Index all subsequently filed documents relating to

  2  an original judgment lien certificate in a manner that

  3  associates them to the original judgment lien certificate.

  4         (5)  The validity of a judgment lien certificate filed

  5  recorded under this section may not be defeated by technical

  6  or clerical errors made by the filer in good faith which do

  7  not adversely impact any person who reasonably relies thereon

  8  are not seriously misleading, nor may any claim of estoppel be

  9  based on such errors.

10         (6)  The Department of State shall prescribe mandatory

11  forms of all documents to be filed under this section.

12         Section 4.  Section 55.204, Florida Statutes, is

13  amended to read:

14         55.204  Duration and continuation of judgment lien;

15  destruction of records.--

16         (1)  Except as provided in this section, a judgment

17  lien acquired under s. 55.202 lapses and becomes invalid 5

18  years after the date of filing recording the judgment lien

19  certificate.

20         (2)  Liens securing the payment of child support or tax

21  obligations as set forth in s. 95.091(1)(b) shall not lapse

22  until 20 years after the date of the original filing of the

23  warrant or other document required by law to establish a lien.

24  No second lien based on the original filing may be obtained.

25         (3)  At any time within 6 months before or 6 months

26  after the scheduled lapse of a judgment lien under subsection

27  (1), the judgment creditor may acquire a second judgment lien

28  by filing recording a new judgment lien certificate. The

29  effective date of the second judgment lien is becomes

30  effective on the date of lapse of the original judgment lien

31  or on the date on which the judgment lien certificate is filed

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  1  recorded, whichever is later. The second judgment lien is

  2  deemed recorded on its effective date. The second judgment

  3  lien is deemed a new judgment lien and not a continuation of

  4  the original judgment lien. The second judgment lien

  5  permanently lapses and becomes invalid 5 years after its

  6  effective date, and no additional liens based on the original

  7  judgment or any judgment based on the original judgment may be

  8  obtained.

  9         (4)  A judgment lien continues only as to itemized

10  property for an additional 90 days after lapse of the lien.

11  Such judgment lien will continue only if:

12         (a)  The property had been itemized and its location

13  described with sufficient particularity in the instructions

14  for levy;

15         (b)  The levy had been delivered to the sheriff prior

16  to the date of lapse of the lien to permit the sheriff to act;

17  and

18         (c)  The property was located in the county in which

19  the sheriff has jurisdiction at the time of delivery of the

20  instruction for levy. Subsequent removal of the property does

21  not defeat the lien. A court may order continuation of the

22  lien beyond the 90-day period on a showing that extraordinary

23  circumstances have prevented levy.

24         (5)  The date of lapse of a judgment lien whose

25  enforceability has been temporarily stayed or enjoined as a

26  result of any legal or equitable proceeding is tolled until 30

27  days after the stay or injunction is terminated.

28         (6)  The Department of State shall maintain each

29  judgment lien file record and all information contained

30  therein for a minimum of 6 years 1 year after the judgment

31  lien has been filed in a accordance with the provisions

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  1  herein, or for a minimum of 6 years after the second judgment

  2  lien certificate has been filed in accordance with the

  3  provisions herein lapses in accordance with this section.

  4         Section 5.  Section 55.205, Florida Statutes, is

  5  amended to read:

  6         55.205  Effect of judgment lien.--

  7         (1)  A valid judgment lien gives the judgment creditor

  8  the right to proceed against take possession of the property

  9  of the debtor subject to levy through writ of execution,

10  garnishment, or other judicial process. A judgment creditor

11  who has not filed recorded a judgment lien certificate in

12  accordance with s. 55.203 or whose lien has lapsed may

13  nevertheless proceed against take possession of the judgment

14  debtor's property through such other judicial process. Such a

15  judgment creditor proceeding by writ of execution obtains a

16  lien as of the time of levy and only on the property levied

17  upon. Except as provided in s. 55.208, such judgment creditor

18  takes subject to the claims and interest of priority judgment

19  creditors.

20         (2)  A buyer in the ordinary course of business as

21  defined in s. 671.201(9) takes free of a judgment lien created

22  under s. 55.203 this section even though the buyer knows of

23  its existence. A valid security interest as defined in chapter

24  679 in after-acquired property of the judgment debtor which is

25  perfected before the debtor acquires an interest in the

26  property prior to the effective date of a judgment lien takes

27  priority over the judgment lien on the after-acquired

28  property.

29         (3)  An individual buyer of goods for personal, family,

30  or household use who buys the goods from a seller who held the

31  goods for personal, family, or household use and who pays

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  1  value without knowledge that the goods are subject to a

  2  judgment lien is entitled, to the extent of the value paid, to

  3  a lien on the goods superior to the judgment lien. If the

  4  buyer has made improvements to the goods, or other reasons

  5  justify doing so, a court may adjust the amount secured by the

  6  lien as the equities may require.

  7         (4)  A buyer of corporate shares takes free of a

  8  judgment lien hereunder if the buyer pays value in good faith

  9  without knowledge of the judgment lien.

10         Section 6.  Section 55.206, Florida Statutes, is

11  amended to read:

12         55.206  Amendment of judgment lien file record;

13  termination, partial release, assignment, continuation,

14  tolling, correction.--

15         (1)  An amendment to a judgment lien acquired under s.

16  55.202 may be filed recorded by or on behalf of the judgment

17  creditor of record, which may provide for:

18         (a)  The termination, partial release, or assignment of

19  the judgment creditor's interest in a judgment lien;

20         (b)  The continuation and termination of the

21  continuation of a judgment lien, as provided in s. 55.204(4);

22         (c)  The tolling and termination of the tolling of a

23  lapse of a judgment lien, as provided in s. 55.204(5); or

24         (d)  The correction or change of any other information

25  provided in the file record of a judgment lien.

26         (2)  Within 30 days following receipt of a written

27  demand by a judgment debtor after the obligation underlying a

28  judgment lien has been fully or partially released, the

29  judgment lienholder must deliver to the judgment debtor a

30  written statement indicating that there is no longer a claim

31  for a lien on the personal property of the judgment debtor or

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  1  that the judgment lien has been partially released and setting

  2  forth the value of the lien remaining unpaid as of the date of

  3  the statement. A statement signed by an assignee must include

  4  or be accompanied by a separate written acknowledgement of

  5  assignment signed by or for the benefit of the judgment

  6  creditor of record. If the judgment lienholder fails to

  7  deliver such a statement within 30 days after proper written

  8  demand therefor, the judgment lienholder is liable to the

  9  judgment debtor for $100, and for any actual or consequential

10  damages, including reasonable attorney's fees, caused by such

11  failure to the judgment debtor.

12         (3)  The judgment debtor, the judgment creditor, or

13  assignee may file such statement with the Department of State.

14         Section 7.  Section 55.207, Florida Statutes, is

15  amended to read:

16         55.207  Correction of judgment lien file record.--

17         (1)  A person may file with the Department of State a

18  correction statement with respect to a judgment lien file

19  record, as provided in s. 55.203, indexed under any the

20  person's name, if the person believes that the file record is

21  inaccurate or that the judgment lien certificate was

22  wrongfully filed.

23         (2)  A correction statement must:

24         (a)  State the judgment debtor named and the file

25  number assigned to the judgment lien file record to which the

26  correction statement relates;

27         (b)  Indicate that it is a correction statement;

28         (c)  Provide the basis for the person's belief that the

29  judgment lien certificate was wrongfully filed or the file

30  record is inaccurate; and

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  1         (d)  Indicate the manner in which the person believes

  2  the file record should be corrected to cure any inaccuracy.

  3         (3)  The department shall ensure that a correction

  4  statement is indexed and available in the same manner as any

  5  filed recorded lien certificate in the central database of

  6  judgment lien files records.

  7         (4)  The filing of a correction statement does not

  8  affect the effectiveness of the judgment lien or other filing

  9  filed record.

10         Section 8.  Section 55.208, Florida Statutes, is

11  amended to read:

12         55.208  Effect of filed recorded judgment lien on writs

13  of execution previously delivered to a sheriff.--

14         (1)  Any lien created by a writ of execution which has

15  been delivered to the sheriff of any county before October 1,

16  2001, remains in effect for 2 years thereafter as to any

17  property of the judgment debtor located in that county before

18  October 1, 2001, and remaining within that county after that

19  date. As to any property of the judgment debtor brought into

20  the county on or after October 1, 2001, such writs create no

21  lien, inchoate or otherwise.

22         (2)  If a judgment creditor who has delivered a writ of

23  execution to a sheriff in any county prior to October 1, 2001,

24  properly files a judgment lien certificate with the Department

25  of State by October 1, 2003, the effective date of the

26  resulting judgment lien is filed deemed recorded on the date

27  the writ was delivered to the sheriff as to all leviable

28  property subject to execution of the judgment debtor which is

29  located in that county on October 1, 2001, and that remains

30  continuously in that county thereafter. As to all other

31  property of the judgment debtor, the effective date of the

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  1  judgment lien is as provided in s. 55.202. The duration of all

  2  judgment liens is as provided in s. 55.204, regardless of the

  3  date on which a lien is determined to have been recorded.

  4         (3)  If a judgment creditor who has delivered a writ of

  5  execution to a sheriff in any county before October 1, 2001,

  6  does not properly file record a judgment lien certificate with

  7  the Department of State by October 1, 2003, such writ is

  8  considered to have been abandoned and to be of no effect after

  9  October 1, 2003.

10         Section 9.  Section 55.209, Florida Statutes, is

11  amended to read:

12         55.209  Department of State; processing fees,

13  responsibilities.--

14         (1)  Except for liens, assessments, warrants, or

15  judgments filed electronically by a state agency or a

16  political subdivision of the state, as provided in s.

17  55.202(5)(6), the Department of State shall collect the

18  following nonrefundable processing fees for all documents

19  filed or recorded in accordance with ss. 55.201-55.209:

20         (a)  For any judgment lien certificate or other

21  documents permitted to be filed, $20.

22         (b)  For the certification of any filed recorded

23  document, $10.

24         (c)  For copies of judgment lien documents which are

25  produced by the Department of State, $1 per page or part

26  thereof. However, no charge may be collected for copies

27  provided in an on-line electronic format via the Internet.

28         (d)  For indexing a judgment lien by multiple judgment

29  debtor names, $5 per additional name.

30

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  1         (e)  For each additional facing page attached to a

  2  judgment lien certificate or document permitted to be filed or

  3  recorded, $5.

  4         (2)  Unless otherwise provided by law, the Department

  5  of State may not conduct any search of the database

  6  established under s. 55.201 to determine the existence of any

  7  judgment lien file record or to perform any service other than

  8  in connection with those services for which payment of

  9  services are required under this section. The information

10  maintained in the database is for public notice purposes only

11  and the department may make no certification or determination

12  of the validity of any judgment lien acquired under ss. 55.202

13  and 55.204(3).

14         Section 10.  Subsections (6) and (8) of section 55.604,

15  Florida Statutes, as amended by section 17 of chapter

16  2000-258, Laws of Florida, are amended to read:

17         55.604  Recognition and enforcement.--Except as

18  provided in s. 55.605, a foreign judgment meeting the

19  requirements of s. 55.603 is conclusive between the parties to

20  the extent that it grants or denies recovery of a sum of

21  money. Procedures for recognition and enforceability of a

22  foreign judgment shall be as follows:

23         (6)  Once an order recognizing the foreign judgment has

24  been entered by a court of this state, the order and a copy of

25  the judgment shall be filed with the Department of State and

26  may be recorded in any other county of this state without

27  further notice or proceedings, and shall be enforceable in the

28  same manner as the judgment of a court of this state.

29         (8)  A judgment lien on personal property is acquired

30  only when a judgment lien certificate satisfying the

31

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  1  requirements of s. 55.203 has been filed recorded with the

  2  Department of State.

  3         Section 11.  Effective upon becoming a law, paragraph

  4  (g) of subsection (2) of section 55.605, Florida Statutes, is

  5  amended to read:

  6         55.605  Grounds for nonrecognition.--

  7         (2)  A foreign judgment need not be recognized if:

  8         (g)  The foreign jurisdiction where judgment was

  9  rendered would not give recognition to a similar judgment

10  rendered in this state. For purposes of this paragraph, the

11  Secretary of State shall establish and maintain a list of

12  foreign jurisdictions where the condition specified in this

13  paragraph has been found to apply.

14         Section 12.  Section 56.21, Florida Statutes, as

15  amended by section 18 of chapter 2000-258, Laws of Florida, is

16  amended to read:

17         56.21  Execution sales; notice.--Notice of all sales

18  under execution shall be given by advertisement once each week

19  for 4 successive weeks in a newspaper published in the county

20  in which the sale is to take place. The time of such notice

21  may be shortened in the discretion of the court from which the

22  execution issued, upon affidavit that the property to be sold

23  is subject to decay and will not sell for its full value if

24  held until date of sale. On or before the date of the first

25  publication or posting of the notice of sale, a copy of the

26  notice of sale shall be furnished by certified mail to the

27  attorney of record of the judgment debtor, or to the judgment

28  debtor at the judgment debtor's last known address if the

29  judgment debtor does not have an attorney of record. Such copy

30  of the notice of sale shall be mailed even though a default

31  judgment was entered. When levying upon personal property, a

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  1  notice of such levy and execution sale and a copy of the

  2  affidavit required by s. 56.27(4) shall be made by the levying

  3  creditor to the attorney of record of the judgment creditor or

  4  the judgment creditor who has filed recorded a judgment lien

  5  certificate as provided in s. 55.202 or s. 55.204(3) at the

  6  address listed in the judgment lien certificate, or, if

  7  amended, in any amendment to the judgment lien certificate,

  8  and to all secured creditors who have filed financing

  9  statements as provided in s. 679.401 in the name of the

10  judgment debtor reflecting a security interest in property of

11  the kind to be sold at the execution sale at the address

12  listed in the financing statement, or, if amended, in any

13  amendment to the financing statement. Such notice shall be

14  made in the same manner as notice is made to any judgment

15  debtor under this section. When levying upon real property,

16  notice of such levy and execution sale shall be made to the

17  property owner of record in the same manner as notice is made

18  to any judgment debtor pursuant to this section. When selling

19  real or personal property, the sale date shall not be earlier

20  than 30 days after the date of the first advertisement.

21         Section 13.  Subsection (1) of section 56.27, Florida

22  Statutes, as amended by section 19 of chapter 2000-258, Laws

23  of Florida, is amended to read:

24         56.27  Executions; payment of money collected.--

25         (1)  All money received under executions shall be paid,

26  in the order prescribed, to the following: the sheriff, for

27  costs; the levying creditor in the amount of $500 as

28  liquidated expenses; and the holder of the judgment lien with

29  the earliest filed effective date judgment lienholder having

30  the earliest recorded judgment lien acquired under s. ss.

31  55.202, and s. 55.204(3), or s. 55.208(2) as set forth in an

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    Florida House of Representatives - 2001                 HB 601

    776-102-01






  1  affidavit required by subsection (4), or his or her attorney,

  2  in satisfaction of the judgment lien, provided that the

  3  judgment lien has not lapsed at the time of the levy. The

  4  receipt of the attorney shall be a release of the officer

  5  paying the money to him or her. When the name of more than one

  6  attorney appears in the court file, the money shall be paid to

  7  the attorney who originally commenced the action or who made

  8  the original defense unless the file shows that another

  9  attorney has been substituted.

10         Section 14.  Except as otherwise provided herein, this

11  act shall take effect October 1, 2001.

12

13            *****************************************

14                          HOUSE SUMMARY

15
      Revises provisions of law concerning judgment liens on
16    personal property to include reference to filed, rather
      than recorded, liens. Provides for other technical
17    revisions to the law governing judgment liens on personal
      property to provide for consistency. See bill for
18    details.

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