House Bill hb1669e1

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                                          HB 1669, First Engrossed



  1                      A bill to be entitled

  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, 676.519,

  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, 679.5011, and 679.5041,

  9         F.S.; clarifying the application of laws of

10         this state to security interests in goods as

11         fixtures; revising operation of provisions

12         specifying priority of such security interests;

13         providing an effective date.

14

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

16

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

18  679.1021, Florida Statutes, is amended to read:

19         679.1021  Definitions and index of definitions.--

20         (1)  In this chapter, the term:

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

22  statement covering goods that are or are to become fixtures

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

24  includes the filing of a financing statement covering goods of

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

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

27  Statutes, is amended to read:

28         679.1081  Sufficiency of description.--

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

30  in this chapter the Uniform Commercial Code is an insufficient

31  description of:


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                                          HB 1669, First Engrossed



  1         (a)  A commercial tort claim; or

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

  3  security entitlement, a securities account, or a commodity

  4  account; or.

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

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

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

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

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

10  section to read:

11         679.2031  Attachment and enforceability of security

12  interest; proceeds; supporting obligations; formal

13  requisites.--

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

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

16  the debtor and third parties with respect to the collateral

17  only if:

18         (a)  Value has been given;

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

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

21  and

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

23         1.  The debtor has authenticated a security agreement

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

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

26  the land concerned;

27         2.  The collateral is not a certificated security and

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

29  pursuant to the debtor's security agreement;

30         3.  The collateral is a certificated security in

31  registered form and the security certificate has been


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                                          HB 1669, First Engrossed



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

  2  the debtor's security agreement; or

  3         4.  The collateral is deposit accounts, electronic

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

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

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

  7  debtor's security agreement.

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

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

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

11  state is not enforceable unless:

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

13  agreement conspicuously states that the collateral includes

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

15  sale of real property;

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

17  agreement includes a legal description of the real property;

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

19  agreement conspicuously states that the real property is the

20  debtor's homestead; and

21         (d)  The security agreement is also authenticated by

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

23  spouse is incompetent, then the method of authentication by

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

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

26  alienation or encumbrance of homestead property by an

27  incompetent person.

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

29  Statutes, is amended to read:

30         679.210  Request for accounting; request regarding list

31  of collateral or statement of account.--


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                                          HB 1669, First Engrossed



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

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

  3  request regarding a statement of account for each secured

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

  5  transaction is entitled to a single response to a request

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

  7  consumer transaction, without charge during any 6-month

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

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

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

11  request regarding a list of collateral for a consumer

12  transaction.  To the extent provided in an authenticated

13  record, the secured party may require the payment of

14  reasonable expenses, including attorney's fees, reasonably

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

16  of collateral for a transaction other than a consumer

17  transaction under this section; otherwise, the secured party

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

19  of collateral.  Excluding a request related to a proposed

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

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

22  requests in any 12-month period.

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

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

25  section, to read:

26         679.3011  Law governing perfection and priority of

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

28  679.1091, 679.3031, 679.3041, 679.3051, and 679.3061, the

29  following rules determine the law governing perfection, the

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

31  security interest in collateral:


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                                          HB 1669, First Engrossed



  1         (3)  Except as otherwise provided in subsections

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

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

  4  jurisdiction, the local law of that jurisdiction governs:

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

  6  filing a fixture filing;

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

  8  cut; and

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

10  priority of a nonpossessory security interest in the

11  collateral.

12         (5)  The law of this state governs:

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

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

15  of a fixture filing.

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

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

18  become fixtures in this state.

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

20  section 679.3171, Florida Statutes, to read:

21         679.3171  Interests that take priority over or take

22  free of security interest or agricultural lien.--

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

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

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

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

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

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

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

30  filing of a financing statement covering goods that are or

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


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                                          HB 1669, First Engrossed



  1  a fixture filing, shall not constitute constructive notice of

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

  3  creditor, who acquires an interest in the related real

  4  property.

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

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

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

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

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

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

11  the sale of the real property.

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

13  Statutes, is amended to read:

14         679.334  Priority of security interests in fixtures and

15  crops.--

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

17  fixtures perfected with a financing statement that is filed as

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

19  conflicting interest claims of an encumbrancer or owner of the

20  related all persons acquiring an interest in the real property

21  arising subsequent to the perfection of such security interest

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

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

24  fixtures perfected only with a financing statement that is not

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

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

27  679.3171(6) and to the rights of a lien creditor under s.

28  679.3171(1)(b), but takes priority as to the goods over the

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

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

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                                          HB 1669, First Engrossed



  1         Section 8.  Section 679.5011, Florida Statutes, is

  2  amended to read:

  3         679.5011  Filing office.--

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

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

  6  security interest or agricultural lien is:

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

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

  9  to be cut; or

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

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

12  statement is shall be filed as a fixture filing.

13         (b)  The Florida Secured Transaction Registry, in

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

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

16  are to become fixtures and the financing statement is not

17  filed as a fixture filing.

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

19  to perfect a security interest in collateral, including

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

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

22  679.527 697.527 to accept filings for the Florida Secured

23  Transaction Registry.  The financing statement also

24  constitutes a fixture filing as to the collateral indicated in

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

26         Section 9.  Subsection (2) of section 679.5041, Florida

27  Statutes, is amended to read:

28         679.5041  Indication of collateral.--A financing

29  statement sufficiently indicates the collateral that it covers

30  if the financing statement provides:

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                                          HB 1669, First Engrossed



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

  2  679.1081; or

  3         (2)  If the security agreement grants a security

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

  5  property is reasonably identified in the security agreement,

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

  7  statement covers all assets or all personal property.

  8         Section 10.  Section 679.510, Florida Statutes, is

  9  amended to read:

10         679.510  Effectiveness of filed record.--

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

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

13  may file it under s. 679.509.

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

15  does not affect the financing statement with respect to

16  another secured party of record.

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

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

19  effective only if the debtor authorizes the filing and the

20  termination statement indicates that the debtor authorized it

21  to be filed.

22         (3)(4)  A continuation statement that is not filed

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

24  ineffective.

25         Section 11.  Subsection (4) of section 679.513, Florida

26  Statutes, is amended to read:

27         679.513  Termination statement.--

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

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

30  the financing statement to which the termination statement

31  relates ceases to be effective. Except as otherwise provided


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                                          HB 1669, First Engrossed



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

  2  the filing with the filing office of a termination statement

  3  relating to a financing statement that indicates that the

  4  debtor is a transmitting utility also causes the effectiveness

  5  of the financing statement to lapse.

  6         Section 12.  Subsections (1) and (2) of section

  7  679.516, Florida Statutes, are amended to read:

  8         679.516  What constitutes filing; effectiveness of

  9  filing.--

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

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

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

13  office constitutes filing.

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

15  that a filing office refuses to accept because:

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

17  medium of communication authorized by the filing office;

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

19  processing fee is not tendered;

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

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

22  chapter 201 had been paid or is not required;

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

24  because:

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

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

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

28  initial;

29         2.  In the case of an amendment or correction

30  statement, the record:

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                                          HB 1669, First Engrossed



  1         a.  Does not correctly identify the initial financing

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

  3  applicable; or

  4         b.  Identifies an initial financing statement the

  5  effectiveness of which has lapsed under s. 679.515;

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

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

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

  9  individual which was not previously provided in the financing

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

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

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

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

14  not provide a sufficient description of the real property to

15  which it relates;

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

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

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

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

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

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

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

23  previously provided in the financing statement to which the

24  amendment relates, the record does not:

25         1.  Provide a mailing address for the debtor;

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

27  organization; or

28         3.  If the financing statement indicates that the

29  debtor is an organization, provide:

30         a.  A type of organization for the debtor;

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


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                                          HB 1669, First Engrossed



  1         c.  An organizational identification number for the

  2  debtor or indicate that the debtor has none;

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

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

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

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

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

  8  address for the assignee;

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

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

11  679.515(4);

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

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

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

15  record does not provide a statement of collateral; or

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

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

18  chapter 201 had been paid or is not required.

19         Section 13.  Subsection (1) of section 679.519, Florida

20  Statutes, is amended to read:

21         679.519  Numbering, maintaining, and indexing records;

22  communicating information provided in records.--

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

24  filing office shall, in accordance with such other laws

25  applicable to the recording of instruments by a filing office

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

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

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

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

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

31  and


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                                          HB 1669, First Engrossed



  1         (d)  Index the filed record in accordance with

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

  3         Section 14.  Subsections (2) and (4) of section

  4  679.527, Florida Statutes, are amended to read:

  5         679.527  Florida Secured Transaction Registry.--

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

  7  authority to determine and select the most qualified

  8  respondents to the request for qualifications and to negotiate

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

10  section. The contract may not be assignable or otherwise

11  transferable without the express written consent of the

12  department, notwithstanding any limitations imposed by s.

13  679.4061 or s. 679.4081.

14         (4)  Notwithstanding the terms and conditions of any

15  contract to perform the administrative and operational

16  functions of the filing office or filing officer under this

17  part for the Florida Secured Transaction Registry, the

18  department and the state shall retain sole and exclusive

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

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

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

22  immediately reclaim and take possession and control of the

23  original materials and records of the registry if any entity

24  under contract with the department to administer and operate

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

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

27  adjudicated a debtor in consents to an insolvency proceeding.

28  If the department reclaims control of the materials and

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

30  uninterrupted fulfillment of the duties of the filing office

31  and filing officer under this chapter by administration and


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                                          HB 1669, First Engrossed



  1  operation by the department until a subsequent contract for

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

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

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

  5  Leon County, Florida, shall have exclusive original

  6  jurisdiction to adjudicate any disputes pertaining to this

  7  section or any contract entered into under this section.

  8         Section 15.  Paragraph (f) of subsection (5) of section

  9  679.625, Florida Statutes, is amended to read:

10         679.625  Remedies for failure to comply with article.--

11         (5)  In lieu of damages recoverable under subsection

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

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

14  case from a person who:

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

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

17  other than a consumer transaction, after receipt of an

18  authenticated record notifying the person of such

19  noncompliance.

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

21  law.

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