Senate Bill sb1066er

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  1

  2         An act relating to the Uniform Commercial Code;

  3         amending ss. 679.1021, 679.1081, 679.2031,

  4         679.210, 679.510, 679.513, 679.516, 679.519,

  5         679.527, and 679.625, F.S.; revising provisions

  6         of the Uniform Commercial Code as amended to

  7         clarify and conform; amending ss. 679.3011,

  8         679.3171, 679.334, and 679.5011, F.S.;

  9         clarifying the application of laws of this

10         state to security interests in goods as

11         fixtures; revising operation of provisions

12         specifying priority of such security interests;

13         amending s. 679.5041, F.S.; revising provisions

14         governing sufficiency of indications of

15         collateral in financing statements; providing

16         an effective date.

17

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

19

20         Section 1.  Paragraph (nn) of subsection (1) of section

21  679.1021, Florida Statutes, is amended to read:

22         679.1021  Definitions and index of definitions.--

23         (1)  In this chapter, the term:

24         (nn)  "Fixture filing" means the filing of a financing

25  statement covering goods that are or are to become fixtures

26  and satisfying s. 679.5021 679.502(1) and (2).  The term

27  includes the filing of a financing statement covering goods of

28  a transmitting utility which are or are to become fixtures.

29         Section 2.  Subsection (5) of section 679.1081, Florida

30  Statutes, is amended to read:

31         679.1081  Sufficiency of description.--


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  1         (5)  A description only by type of collateral defined

  2  in this chapter the Uniform Commercial Code is an insufficient

  3  description of:

  4         (a)  A commercial tort claim; or

  5         (b)  In a consumer transaction, consumer goods, a

  6  security entitlement, a securities account, or a commodity

  7  account; or.

  8         (c)  An account consisting of a right to payment of a

  9  monetary obligation for the sale of real property that is the

10  debtor's homestead under the laws of this state.

11         Section 3.  Subsection (2) of section 679.2031, Florida

12  Statutes, is amended and subsection (10) is added to that

13  section to read:

14         679.2031  Attachment and enforceability of security

15  interest; proceeds; supporting obligations; formal

16  requisites.--

17         (2)  Except as otherwise provided in subsections (3)

18  through (10) (9), a security interest is enforceable against

19  the debtor and third parties with respect to the collateral

20  only if:

21         (a)  Value has been given;

22         (b)  The debtor has rights in the collateral or the

23  power to transfer rights in the collateral to a secured party;

24  and

25         (c)  One of the following conditions is met:

26         1.  The debtor has authenticated a security agreement

27  that provides a description of the collateral and, if the

28  security interest covers timber to be cut, a description of

29  the land concerned;

30

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  1         2.  The collateral is not a certificated security and

  2  is in the possession of the secured party under s. 679.3131

  3  pursuant to the debtor's security agreement;

  4         3.  The collateral is a certificated security in

  5  registered form and the security certificate has been

  6  delivered to the secured party under s. 678.3011 pursuant to

  7  the debtor's security agreement; or

  8         4.  The collateral is deposit accounts, electronic

  9  chattel paper, investment property, or letter-of-credit

10  rights, and the secured party has control under s. 679.1041,

11  s. 679.1051, s. 679.1061, or s. 679.1071 pursuant to the

12  debtor's security agreement.

13         (10)  A security interest in an account consisting of a

14  right to payment of a monetary obligation for the sale of real

15  property that is the debtor's homestead under the laws of this

16  state is not enforceable unless:

17         (a)  The description of the account in the security

18  agreement conspicuously states that the collateral includes

19  the debtor's right to payment of a monetary obligation for the

20  sale of real property;

21         (b)  The description of the account in the security

22  agreement includes a legal description of the real property;

23         (c)  The description of the account in the security

24  agreement conspicuously states that the real property is the

25  debtor's homestead; and

26         (d)  The security agreement is also authenticated by

27  the debtor's spouse, if the debtor is married; if the debtor's

28  spouse is incompetent, then the method of authentication by

29  the debtor's spouse is the same as provided by the laws of

30  this state, other than this chapter, which apply to the

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  1  alienation or encumbrance of homestead property by an

  2  incompetent person.

  3         Section 4.  Subsection (6) of section 679.210, Florida

  4  Statutes, is amended to read:

  5         679.210  Request for accounting; request regarding list

  6  of collateral or statement of account.--

  7         (6)  A debtor is entitled under this section without

  8  charge to one response to a request for an accounting or a

  9  request regarding a statement of account for each secured

10  obligation during any 6-month period. A debtor in a consumer

11  transaction is entitled to a single response to a request

12  regarding a list of collateral, for a transaction other than a

13  consumer transaction, without charge during any 6-month

14  period. The secured party may require payment of a charge not

15  exceeding $25 for each additional response to a request for an

16  accounting, a request regarding a statement of account, or a

17  request regarding a list of collateral for a consumer

18  transaction.  To the extent provided in an authenticated

19  record, the secured party may require the payment of

20  reasonable expenses, including attorney's fees, reasonably

21  incurred in providing a response to a request regarding a list

22  of collateral for a transaction other than a consumer

23  transaction under this section; otherwise, the secured party

24  may not charge more than $25 for each request regarding a list

25  of collateral.  Excluding a request related to a proposed

26  satisfaction of the secured obligation, a secured party is not

27  required to respond to more than 12 of each of the permitted

28  requests in any 12-month period.

29         Section 5.  Subsection (3) of section 679.3011, Florida

30  Statutes, is amended, and subsection (5) is added to said

31  section, to read:


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  1         679.3011  Law governing perfection and priority of

  2  security interests.--Except as otherwise provided in ss.

  3  679.1091, 679.3031, 679.3041, 679.3051, and 679.3061, the

  4  following rules determine the law governing perfection, the

  5  effect of perfection or nonperfection, and the priority of a

  6  security interest in collateral:

  7         (3)  Except as otherwise provided in subsections

  8  subsection (4) and (5), while negotiable documents, goods,

  9  instruments, money, or tangible chattel paper is located in a

10  jurisdiction, the local law of that jurisdiction governs:

11         (a)  Perfection of a security interest in the goods by

12  filing a fixture filing;

13         (b)  Perfection of a security interest in timber to be

14  cut; and

15         (c)  The effect of perfection or nonperfection and the

16  priority of a nonpossessory security interest in the

17  collateral.

18         (5)  The law of this state governs:

19         (a)  The perfection of a security interest in goods

20  that are or are to become fixtures in this state by the filing

21  of a fixture filing.

22         (b)  The effect of perfection or nonperfection and the

23  priority of a security interest in goods that are or are to

24  become fixtures in this state.

25         Section 6.  Subsections (6) and (7) are added to

26  section 679.3171, Florida Statutes, to read:

27         679.3171  Interests that take priority over or take

28  free of security interest or agricultural lien.--

29         (6)  An encumbrancer or owner, other than the debtor or

30  a lien creditor, who acquires an interest in the related real

31  property takes free of a security interest in goods that are


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  1  or become fixtures in this state, which interest is perfected

  2  only with a financing statement that is not filed as a fixture

  3  filing, even if the encumbrancer or owner knows of the

  4  existence of such statement.  For purposes of s. 695.01, the

  5  filing of a financing statement covering goods that are or

  6  become fixtures in this state, which statement is not filed as

  7  a fixture filing, shall not constitute constructive notice of

  8  such security interest to any person, other than a lien

  9  creditor, who acquires an interest in the related real

10  property.

11         (7)  The holder of a mortgage or other lien against

12  real property arising under the laws of this state, other than

13  this chapter, has priority with respect to the rents, issues,

14  profits, and proceeds of the real property, including proceeds

15  from the sale thereof, over a security interest in an account

16  consisting of a right to payment of a monetary obligation for

17  the sale of the real property.

18         Section 7.  Subsection (4) of section 679.334, Florida

19  Statutes, is amended to read:

20         679.334  Priority of security interests in fixtures and

21  crops.--

22         (4)  A security interest in goods which are or become

23  fixtures perfected with a financing statement that is filed as

24  a fixture filing takes priority as to the goods over the

25  conflicting interest claims of an encumbrancer or owner of the

26  related all persons acquiring an interest in the real property

27  arising subsequent to the perfection of such security interest

28  or the affixing of the goods to the real property, whichever

29  occurs later. A security interest in goods which are or become

30  fixtures perfected only with a financing statement that is not

31  filed as a fixture filing is subject to the rights of an


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  1  encumbrancer or owner of the related real property under s.

  2  679.3171(6) and to the rights of a lien creditor under s.

  3  679.3171(1)(b), but takes priority as to the goods over the

  4  rights of a lien creditor who does not meet the requirements

  5  of s. 679.3171(1)(b).

  6         Section 8.  Section 679.5011, Florida Statutes, is

  7  amended to read:

  8         679.5011  Filing office.--

  9         (1)  Except as otherwise provided in subsection (2),

10  the office in which to file a financing statement to perfect a

11  security interest or agricultural lien is:

12         (a)  The office of the clerk of the circuit court, if:

13         1.  The collateral is as-extracted collateral or timber

14  to be cut; or

15         2.  The collateral is goods that are or are to become

16  fixtures and in this state, in which event the financing

17  statement is shall be filed as a fixture filing.

18         (b)  The Florida Secured Transaction Registry, in

19  accordance with ss. 679.3011-679.3071, and in all other cases,

20  including cases in which the collateral is goods that are or

21  are to become fixtures and the financing statement is not

22  filed as a fixture filing.

23         (2)  The office in which to file a financing statement

24  to perfect a security interest in collateral, including

25  fixtures, of a transmitting utility is the Office of the

26  Secretary of State, or the filing office authorized by s.

27  679.527 697.527 to accept filings for the Florida Secured

28  Transaction Registry.  The financing statement also

29  constitutes a fixture filing as to the collateral indicated in

30  the financing statement which is or is to become fixtures.

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  1         Section 9.  Section 679.510, Florida Statutes, is

  2  amended to read:

  3         679.510  Effectiveness of filed record.--

  4         (1)  Subject to subsection (3), A filed record is

  5  effective only to the extent that it was filed by a person who

  6  may file it under s. 679.509.

  7         (2)  A record authorized by one secured party of record

  8  does not affect the financing statement with respect to

  9  another secured party of record.

10         (3)  If a person may file a termination statement only

11  under s. 679.509(3)(b), the filed termination statement is

12  effective only if the debtor authorizes the filing and the

13  termination statement indicates that the debtor authorized it

14  to be filed.

15         (3)(4)  A continuation statement that is not filed

16  within the 6-month period prescribed by s. 679.515(4) is

17  ineffective.

18         Section 10.  Subsection (4) of section 679.513, Florida

19  Statutes, is amended to read:

20         679.513  Termination statement.--

21         (4)  Except as otherwise provided in s. 679.510, Upon

22  the filing of a termination statement with the filing office,

23  the financing statement to which the termination statement

24  relates ceases to be effective. Except as otherwise provided

25  in s. 679.510, For purposes of ss. 679.519(7) and 679.522(1),

26  the filing with the filing office of a termination statement

27  relating to a financing statement that indicates that the

28  debtor is a transmitting utility also causes the effectiveness

29  of the financing statement to lapse.

30         Section 11.  Subsections (1) and (2) of section

31  679.516, Florida Statutes, are amended to read:


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  1         679.516  What constitutes filing; effectiveness of

  2  filing.--

  3         (1)  Except as otherwise provided in subsection (2),

  4  communication of a record to a filing office and, tender of

  5  the processing fee, or acceptance of the record by the filing

  6  office constitutes filing.

  7         (2)  Filing does not occur with respect to a record

  8  that a filing office refuses to accept because:

  9         (a)  The record is not communicated by a method or

10  medium of communication authorized by the filing office;

11         (b)  An amount equal to or greater than the applicable

12  processing fee is not tendered;

13         (c)  The record does not include the notation required

14  by s. 201.22 indicating that the excise tax required by

15  chapter 201 had been paid or is not required;

16         (c)(d)  The filing office is unable to index the record

17  because:

18         1.  In the case of an initial financing statement, the

19  record does not provide an organization's name or, if an

20  individual, the individual's last name and first name or

21  initial;

22         2.  In the case of an amendment or correction

23  statement, the record:

24         a.  Does not correctly identify the initial financing

25  statement as required by s. 679.512 or s. 679.518, as

26  applicable; or

27         b.  Identifies an initial financing statement the

28  effectiveness of which has lapsed under s. 679.515;

29         3.  In the case of an initial financing statement that

30  provides the name of a debtor identified as an individual or

31  an amendment that provides a name of a debtor identified as an


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  1  individual which was not previously provided in the financing

  2  statement to which the record relates, the record does not

  3  identify the debtor's last name and first name or initial; or

  4         4.  In the case of a record filed or recorded in the

  5  filing office described in s. 679.5011(1)(a), the record does

  6  not provide a sufficient description of the real property to

  7  which it relates;

  8         (d)(e)  In the case of an initial financing statement

  9  or an amendment that adds a secured party of record, the

10  record does not provide an organization's name or, if an

11  individual, the individual's last name and first name or

12  initial and mailing address for the secured party of record;

13         (e)(f)  In the case of an initial financing statement

14  or an amendment that provides a name of a debtor which was not

15  previously provided in the financing statement to which the

16  amendment relates, the record does not:

17         1.  Provide a mailing address for the debtor;

18         2.  Indicate whether the debtor is an individual or an

19  organization; or

20         3.  If the financing statement indicates that the

21  debtor is an organization, provide:

22         a.  A type of organization for the debtor;

23         b.  A jurisdiction of organization for the debtor; or

24         c.  An organizational identification number for the

25  debtor or indicate that the debtor has none;

26         (f)(g)  In the case of an assignment reflected in an

27  initial financing statement under s. 679.514(1) or an

28  amendment filed under s. 679.514(2), the record does not

29  provide an organization's name or, if an individual, the

30  individual's last name and first name or initial and mailing

31  address for the assignee;


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  1         (g)(h)  In the case of a continuation statement, the

  2  record is not filed within the 6-month period prescribed by s.

  3  679.515(4);

  4         (h)(i)  In the case of an initial financing statement

  5  or an amendment, which amendment requires the inclusion of a

  6  collateral statement but the record does not provide any, the

  7  record does not provide a statement of collateral; or

  8         (i)  The record does not include the notation required

  9  by s. 201.22 indicating that the excise tax required by

10  chapter 201 had been paid or is not required.

11         Section 12.  Subsection (1) of section 679.519, Florida

12  Statutes, is amended to read:

13         679.519  Numbering, maintaining, and indexing records;

14  communicating information provided in records.--

15         (1)  For each record filed in a filing office, the

16  filing office shall, in accordance with such other laws

17  applicable to the recording of instruments by a filing office

18  described in s. 679.5011(1)(a):

19         (a)  Assign a unique number to the filed record;

20         (b)  Create a record that bears the number assigned to

21  the filed record and the date and time of filing;

22         (c)  Maintain the filed record for public inspection;

23  and

24         (d)  Index the filed record in accordance with

25  subsections (3), (4), and (5).

26         Section 13.  Subsections (2) and (4) of section

27  679.527, Florida Statutes, are amended to read:

28         679.527  Florida Secured Transaction Registry.--

29         (2)  Under chapter 287, the department has the

30  authority to determine and select the most qualified

31  respondents to the request for qualifications and to negotiate


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  1  and enter into one or more contracts as provided in this

  2  section. The contract may not be assignable or otherwise

  3  transferable without the express written consent of the

  4  department, notwithstanding any limitations imposed by s.

  5  679.4061 or s. 679.4081.

  6         (4)  Notwithstanding the terms and conditions of any

  7  contract to perform the administrative and operational

  8  functions of the filing office or filing officer under this

  9  part for the Florida Secured Transaction Registry, the

10  department and the state shall retain sole and exclusive

11  ownership of the materials and records of the registry, shall

12  have the right to inspect and make copies of the materials and

13  records of the registry, and shall have the right to

14  immediately reclaim and take possession and control of the

15  original materials and records of the registry if any entity

16  under contract with the department to administer and operate

17  the registry does not, or cannot, perform the terms and

18  conditions of the contract for any reason or commences or is

19  adjudicated a debtor in consents to an insolvency proceeding.

20  If the department reclaims control of the materials and

21  records of the registry, the department shall provide for the

22  uninterrupted fulfillment of the duties of the filing office

23  and filing officer under this chapter by administration and

24  operation by the department until a subsequent contract for

25  such duties can be executed.  The department shall be entitled

26  to injunctive relief if the entity fails to turn over the

27  materials and records upon demand, and the Circuit Court for

28  Leon County, Florida, shall have exclusive original

29  jurisdiction to adjudicate any disputes pertaining to this

30  section or any contract entered into under this section.

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  1         Section 14.  Paragraph (f) of subsection (5) of section

  2  679.625, Florida Statutes, is amended to read:

  3         679.625  Remedies for failure to comply with article.--

  4         (5)  In lieu of damages recoverable under subsection

  5  (2), the debtor, consumer obligor, or person named as a debtor

  6  in a filed record, as applicable, may recover $500 in each

  7  case from a person who:

  8         (f)  Fails to comply with s. 679.616(2)(b) with respect

  9  to a consumer transaction, and with respect to a transaction

10  other than a consumer transaction, after receipt of an

11  authenticated record notifying the person of such

12  noncompliance.

13         Section 15.  Section 679.5041, Florida Statutes, is

14  amended to read:

15         679.5041  Indication of collateral.--A financing

16  statement sufficiently indicates the collateral that it covers

17  if the financing statement provides:

18         (1)  A description of the collateral pursuant to s.

19  679.1081; or

20         (2)  If the security agreement grants a security

21  interest in all of the debtor's personal property and such

22  property is reasonably identified in the security agreement,

23  as permitted by s. 679.1081, An indication that the financing

24  statement covers all assets or all personal property.

25         Section 16.  This act shall take effect upon becoming a

26  law.

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