Senate Bill sb3012

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 3012

    By Senator Campbell





    32-653D-04                                          See HB 955

  1                      A bill to be entitled

  2         An act relating to judgment liens; amending s.

  3         55.141, F.S.; revising provisions relating to

  4         satisfaction of judgments and decrees;

  5         eliminating authority of judges to act under

  6         these provisions when there is no clerk of

  7         court; revising requirements of clerk when

  8         accepting payment for satisfaction of a

  9         judgment and executing and recording a

10         satisfaction of judgment; providing a sample

11         form to be used by a clerk when recording a

12         satisfaction of judgment; revising provisions

13         relating to notification of satisfaction of

14         judgment to a judgment holder; amending s.

15         55.202, F.S.; revising procedures for acquiring

16         a judgment lien; providing court authorization

17         to file a judgment lien certificate before a

18         judgment becomes final under certain

19         circumstances; providing effect; amending s.

20         55.204, F.S.; revising provisions relating to

21         continuation of judgment liens; revising

22         provisions requiring the Department of State to

23         maintain certain files and information;

24         amending s. 55.205, F.S.; deleting a provision

25         authorizing certain creditors to bring certain

26         actions against property of a debtor; amending

27         ss. 55.602, 55.603, 55.604, 55.605, and 55.606,

28         F.S.; revising provisions relating to foreign

29         judgments to apply only to out-of-country

30         foreign judgments; amending s. 56.21, F.S.;

31         revising requirements for notices of a levy and

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1         execution sale; amending s. 56.27, F.S.;

 2         clarifying provisions relating to payment of

 3         money received under execution; amending s.

 4         56.29, F.S.; revising requirements regarding

 5         supplementary proceedings for unsatisfied

 6         judgments; amending s. 222.01, F.S.; revising

 7         provisions relating to designation of homestead

 8         property by the owner prior to levy to include

 9         foreign judgments; amending s. 319.27, F.S.;

10         correcting a cross-reference; amending s.

11         679.1021, F.S.; revising a definition of "lien

12         creditor"; providing effective dates.

13  

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

15  

16         Section 1.  Section 55.141, Florida Statutes, as

17  amended by section 69 of chapter 2003-402, Laws of Florida, is

18  amended to read:

19         55.141  Satisfaction of judgments and decrees; duties

20  of clerk and judge.--

21         (1)  All judgments and decrees for the payment of money

22  rendered in the courts of this state and which have become

23  final, may be satisfied at any time prior to the actual levy

24  of execution issued thereon by payment of the full amount of

25  such judgment or decree, with interest thereon, plus the costs

26  of the issuance, if any, of execution thereon into the

27  registry of the court where rendered.

28         (2)  Upon such payment, the clerk, or the judge if

29  there is no clerk, shall execute issue his or her receipt

30  therefor and shall record in the official records a

31  satisfaction of judgment, provided by the judgment holder,

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1  upon payment of the recording charge prescribed in s.

 2  28.24(12). Upon payment in the amount required in subsection

 3  (1) and the recording charge required by this subsection and

 4  execution and recordation of the satisfaction by the clerk,

 5  any lien created by such judgment is satisfied and discharged.

 6  s. 28.24(12) plus the necessary costs of mailing to the clerk

 7  or judge. The clerk or judge shall formally notify the owner

 8  of record of such judgment or decree, if such person and his

 9  or her address are known to the clerk or judge receiving such

10  payment, and, upon request therefor, shall pay over to the

11  person entitled, or to his or her order, the full amount of

12  the payment so received, less his or her fees for issuing

13  execution on such judgment or decree, if any has been issued,

14  and less his or her fees for receiving into and paying out of

15  the registry of the court such payment, together with the fees

16  of the clerk for receiving into and paying such money out of

17  the registry of the court.

18         (3)  The satisfaction of judgment executed by the clerk

19  shall be substantially in the following form:

20  

21                Satisfaction of Judgment by Clerk

22  

23  The undersigned Clerk acknowledges on this      day of

24  (month), (year), receipt from (identity of party making

25  payment) of $ (total amount received), comprised of $     face

26  amount of the judgment; $     interest accruing on the

27  judgment through the date of payment; $     costs of issuance

28  of any execution; and $     for recording.

29  

30  Pursuant to section 55.141, Florida Statutes, said sum is paid

31  to satisfy the lien and to discharge that certain final

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1  judgment in favor of (name of judgment holder) whose last

 2  known address, if known, is (address if shown on face of

 3  judgment or in recorded affidavit pursuant to section

 4  55.10(1), Florida Statutes,) against (name of judgment debtor)

 5  recorded in Official Records Volume/Book     , page     of the

 6  public records of      County, Florida.

 7  

 8  Upon the execution of this satisfaction, said judgment is

 9  satisfied and discharged.

10  

11  If an address for the judgment holder was provided under

12  section 55.10(1), Florida Statutes, I certify that a copy of

13  this notice has been sent to the judgment holder at said

14  address by certified mail with return receipt requested or by

15  registered mail if the notice is to be sent outside the

16  continental United States.

17  

18  Clerk of Court

19         (4)  If an address for the judgment holder was provided

20  under s. 55.10(1), the clerk shall formally send a copy of the

21  satisfaction to the judgment holder at said address by

22  certified mail with return receipt or by registered mail if

23  the notice is to be sent outside the continental United

24  States. If an address is not provided under s. 55.10(1) or if

25  delivery cannot be effected to such address, the clerk may,

26  but is not obligated to, make reasonable attempts to locate

27  the judgment holder. The discharge of the lien by the issuance

28  of the satisfaction is not dependent upon the delivery of

29  notice by the clerk.

30         (5)  Upon application of the judgment holder, the clerk

31  shall pay over to the judgment holder the full amount of the

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1  payment received, less the clerk's fees for issuing execution

 2  on such judgment, if any has been issued; less the clerk's

 3  fees for receiving into and paying out of the registry of the

 4  court such payment; less the clerk's fees for recording the

 5  satisfaction of judgment; and if the clerk incurred expenses

 6  in locating the judgment holder, less the reasonable expenses

 7  so incurred.

 8         (3)  Full payment of judgments and decrees as in the

 9  preceding subsections of this section provided shall

10  constitute full payment and satisfaction thereof and any lien

11  created by such judgment or decree shall thereupon be

12  satisfied and discharged.

13         Section 2.  Subsections (2) and (3) of section 55.202,

14  Florida Statutes, are amended to read:

15         55.202  Judgments, orders, and decrees; lien on

16  personal property.--

17         (2)  A judgment lien may be acquired on a judgment

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

19  subject to execution under s. 56.061, other than fixtures,

20  money, negotiable instruments, and mortgages.

21         (a)  A judgment lien is acquired by filing a judgment

22  lien certificate in accordance with s. 55.203 with the

23  Department of State after the judgment has become final and if

24  the time to move for rehearing has lapsed, no motion for

25  rehearing is pending, and no stay of the judgment or its

26  enforcement is then in effect. A court may authorize, for

27  cause shown, the filing of a judgment lien certificate before

28  a judgment has become final when the court has authorized the

29  issuance of a writ of execution in the same matter. A judgment

30  lien certificate not filed in compliance with this subsection

31  is permanently void and of no effect.

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1         (b)  For any lien, warrant, assessment, or judgment

 2  collected by the Department of Revenue, a judgment lien may be

 3  acquired by filing the judgment lien certificate information

 4  or warrant with the Department of State in accordance with

 5  subsection (5).

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

 7  date of a judgment lien is the date, including the time of

 8  day, of filing. Although no lien attaches to property, and a

 9  creditor does not become a lien creditor as to liens under

10  chapter 679, until the debtor acquires an interest in the

11  property, priority among competing judgment liens is

12  determined in order of filing date and time.

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

14  creditor may file only one effective judgment lien certificate

15  based upon a particular judgment.

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

17  priority of a judgment lien acquired in accordance with this

18  section or s. 55.204(3) is established at the date and time

19  the judgment lien certificate is filed.

20         Section 3.  Subsections (4) and (6) of section 55.204,

21  Florida Statutes, are amended to read:

22         55.204  Duration and continuation of judgment lien;

23  destruction of records.--

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

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

26  Such judgment lien will continue only if:

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

28  described with sufficient particularity in the instructions

29  for levy to permit the sheriff to act;

30  

31  

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1         (b)  The instructions for the levy had been delivered

 2  to the sheriff prior to the date of lapse of the lien to

 3  permit the sheriff to act; and

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

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

 6  instruction for levy. Subsequent removal of the property does

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

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

 9  circumstances have prevented levy.

10         (6)  If no second judgment lien is filed, the

11  Department of State shall maintain each judgment lien file and

12  all information contained therein for a minimum of 1 year

13  after the judgment lien lapses in accordance with this

14  section.  If a second judgment lien is filed, the department

15  shall maintain both files and all information contained in

16  such files for a minimum of 1 year after the second judgment

17  lien lapses.

18         Section 4.  Subsection (1) of section 55.205, Florida

19  Statutes, is amended to read:

20         55.205  Effect of judgment lien.--

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

22  the right to proceed against the property of the debtor

23  through writ of execution, garnishment, or other judicial

24  process. A judgment creditor who has not acquired a judgment

25  lien as provided in s. 55.202 or whose lien has lapsed may

26  nevertheless proceed against the judgment debtor's property

27  through any appropriate other judicial process. Such judgment

28  creditor proceeding by writ of execution acquires a lien as of

29  the time of levy and only on the property levied upon. Except

30  as provided in s. 55.208, such judgment creditor takes subject

31  to the claims and interest of priority judgment creditors.

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1         Section 5.  Subsection (2) of section 55.602, Florida

 2  Statutes, is amended to read:

 3         55.602  Definitions.--As used in this act, the term:

 4         (2)  "Out-of-country foreign judgment" means any

 5  judgment of a foreign state granting or denying recovery of a

 6  sum of money, other than a judgment for taxes, a fine, or

 7  other penalty.

 8         Section 6.  Section 55.603, Florida Statutes, is

 9  amended to read:

10         55.603  Applicability.--This act applies to any

11  out-of-country foreign judgment that is final and conclusive

12  and enforceable where rendered, even though an appeal

13  therefrom is pending or is subject to appeal.

14         Section 7.  Section 55.604, Florida Statutes, is

15  amended to read:

16         55.604  Recognition and enforcement.--Except as

17  provided in s. 55.605, an out-of-country a foreign judgment

18  meeting the requirements of s. 55.603 is conclusive between

19  the parties to the extent that it grants or denies recovery of

20  a sum of money. Procedures for recognition and enforceability

21  of an out-of-country a foreign judgment shall be as follows:

22         (1)  The out-of-country foreign judgment shall be filed

23  with the clerk of the court and recorded in the public records

24  in the county or counties where enforcement is sought.

25         (a)  At the time of the recording of an out-of-country

26  a foreign judgment, the judgment creditor shall make and

27  record with the clerk of the circuit court an affidavit

28  setting forth the name, social security number, if known, and

29  last known post-office address of the judgment debtor and of

30  the judgment creditor.

31  

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1         (b)  Promptly upon the recording of the out-of-country

 2  foreign judgment and the affidavit, the clerk shall mail

 3  notice of the recording of the out-of-country foreign

 4  judgment, by registered mail with return receipt requested, to

 5  the judgment debtor at the address given in the affidavit and

 6  shall make a note of the mailing in the docket. The notice

 7  shall include the name and address of the judgment creditor

 8  and of the judgment creditor's attorney, if any, in this

 9  state. In addition, the judgment creditor may mail a notice of

10  the recording of the judgment to the judgment debtor and may

11  record proof of mailing with the clerk. The failure of the

12  clerk to mail notice of recording will not affect the

13  enforcement proceedings if proof of mailing by the judgment

14  creditor has been recorded.

15         (2)  The judgment debtor shall have 30 days after

16  service of the notice to file a notice of objection with the

17  clerk of the court specifying the grounds for nonrecognition

18  or nonenforceability under this act.

19         (3)  Upon the application of any party, and after

20  proper notice, the circuit court shall have jurisdiction to

21  conduct a hearing, determine the issues, and enter an

22  appropriate order granting or denying recognition in

23  accordance with the terms of this act.

24         (4)  If the judgment debtor fails to file a notice of

25  objection within the required time, the clerk of the court

26  shall record a certificate stating that no objection has been

27  filed.

28         (5)  Upon entry of an order recognizing the

29  out-of-country foreign judgment, or upon recording of the

30  clerk's certificate set forth above, the out-of-country

31  

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1  foreign judgment shall be enforced in the same manner as the

 2  judgment of a court of this state.

 3         (6)  Once an order recognizing the out-of-country

 4  foreign judgment has been entered by a court of this state,

 5  the order and a copy of the judgment may be recorded in any

 6  other county of this state without further notice or

 7  proceedings, and shall be enforceable in the same manner as

 8  the judgment of a court of this state.

 9         (7)  A lien on real estate in any county shall be

10  created only when there has been recorded in the official

11  records of the county (a) a certified copy of the judgment,

12  and (b) a copy of the clerk's certificate or the order

13  recognizing the out-of-country foreign judgment. The priority

14  of such lien will be established as of the time the latter of

15  the two recordings has occurred. Such lien may be partially

16  released or satisfied by the person designated pursuant to

17  paragraph (1).

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

19  only when a judgment lien certificate is filed in accordance

20  with s. 55.203 with the Department of State.

21         Section 8.  Section 55.605, Florida Statutes, is

22  amended to read:

23         55.605  Grounds for nonrecognition.--

24         (1)  An out-of-country A foreign judgment is not

25  conclusive if:

26         (a)  The judgment was rendered under a system which

27  does not provide impartial tribunals or procedures compatible

28  with the requirements of due process of law.

29         (b)  The foreign court did not have personal

30  jurisdiction over the defendant.

31  

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1         (c)  The foreign court did not have jurisdiction over

 2  the subject matter.

 3         (2)  An out-of-country A foreign judgment need not be

 4  recognized if:

 5         (a)  The defendant in the proceedings in the foreign

 6  court did not receive notice of the proceedings in sufficient

 7  time to enable him or her to defend.

 8         (b)  The judgment was obtained by fraud.

 9         (c)  The cause of action or claim for relief on which

10  the judgment is based is repugnant to the public policy of

11  this state.

12         (d)  The judgment conflicts with another final and

13  conclusive order.

14         (e)  The proceeding in the foreign court was contrary

15  to an agreement between the parties under which the dispute in

16  question was to be settled otherwise than by proceedings in

17  that court.

18         (f)  In the case of jurisdiction based only on personal

19  service, the foreign court was a seriously inconvenient forum

20  for the trial of the action.

21         (g)  The foreign jurisdiction where judgment was

22  rendered would not give recognition to a similar judgment

23  rendered in this state.

24         Section 9.  Section 55.606, Florida Statutes, is

25  amended to read:

26         55.606  Personal jurisdiction.--The out-of-country

27  foreign judgment shall not be refused recognition for lack of

28  personal jurisdiction if:

29         (1)  The defendant was served personally in the foreign

30  state;

31  

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1         (2)  The defendant voluntarily appeared in the

 2  proceedings, other than for the purpose of protecting property

 3  seized or threatened with seizure in the proceedings or of

 4  contesting the jurisdiction of the court over him or her;

 5         (3)  The defendant, prior to the commencement of the

 6  proceedings, had agreed to submit to the jurisdiction of the

 7  foreign court with respect to the subject matter involved;

 8         (4)  The defendant was domiciled in the foreign state

 9  when the proceedings were instituted, or, being a body

10  corporate, had its principal place of business, was

11  incorporated, or had otherwise acquired corporate status, in

12  the foreign state;

13         (5)  The defendant had a business office in the foreign

14  state and the proceedings in the foreign court involved a

15  cause of action or a claim for relief arising out of business

16  done by the defendant through that office in the foreign

17  state; or

18         (6)  The defendant operated a motor vehicle or airplane

19  in the foreign state and the proceedings involved a cause of

20  action or claim for relief arising out of such operation.

21         Section 10.  Effective October 1, 2004, section 56.21,

22  Florida Statutes, is amended to read:

23         56.21  Execution sales; notice.--Notice of all sales

24  under execution shall be given by advertisement once each week

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

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

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

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

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

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

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

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




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

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

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

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

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

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

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

 8  affidavit required by s. 56.27(4) shall be sent by the sheriff

 9  made by the levying creditor to the attorneys attorney  of

10  record of all the judgment creditors, creditor or to all the

11  judgment creditors who do not have an attorney of record,

12  creditor who have has acquired a judgment lien as provided in

13  s. 55.202 or s. 55.204(3), and whose liens have not lapsed at

14  the time of levy, at the address listed in the judgment lien

15  certificate, or, if amended, in any amendment to the judgment

16  lien certificate, and to all secured creditors who have filed

17  financing statements as provided in part V of chapter 679 s.

18  679.401 in the name of the judgment debtor reflecting a

19  security interest in property of the kind to be sold at the

20  execution sale at the address listed in the financing

21  statement, or, if amended, in any amendment to the financing

22  statement. Such notice shall be made in the same manner as

23  notice is made to any judgment debtor under this section. When

24  levying upon real property, notice of such levy and execution

25  sale shall be made to the property owner of record in the same

26  manner as notice is made to any judgment debtor pursuant to

27  this section. When selling real or personal property, the sale

28  date shall not be earlier than 30 days after the date of the

29  first advertisement.

30         Section 11.  Subsections (1), (2), and (4) of section

31  56.27, Florida Statutes, are amended to read:

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1         56.27  Executions; payment of money collected.--

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

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

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

 5  liquidated expenses; if the levy is upon real property, the

 6  first priority lienholder under s. 55.10; and if the levy is

 7  upon personal property, and the first priority lienholder

 8  under s. 55.202, s. 55.204(3), or s. 55.208(2), as set forth

 9  in an affidavit required by subsection (4), or his or her

10  attorney, in satisfaction of the judgment lien, provided that

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

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

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

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

15  the attorney who originally commenced the action or who made

16  the original defense unless the file shows that another

17  attorney has been substituted.

18         (2)  When property sold under execution brings more

19  than the amount needed to satisfy the provisions of subsection

20  (1), the surplus shall be paid in the order of priority to any

21  judgment lienholders whose judgment liens have not lapsed.

22  Priority of liens on personal property shall be based on the

23  effective date of the judgment lien acquired under s. 55.202,

24  s. 55.204(3), or s. 55.208(2), as set forth in an affidavit

25  required under subsection (4). If there is a surplus after all

26  valid judgment liens and execution liens have been satisfied,

27  the surplus must be paid to the defendant.

28         (4)  On or Before the date of the first publication or

29  posting of the notice of sale provided for under s. 56.21, the

30  levying creditor shall deliver to the sheriff file an

31  

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1  affidavit setting forth the following as to the judgment

 2  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 s. 55.203(1) and

 9  (2) for each judgment lien certificate indexed under the name

10  of the judgment debtor as to each judgment creditor; the file

11  number assigned to the record of the original and, if any, the

12  second judgment lien; and the date of filing for each judgment

13  lien certificate under s. 55.202 or s. 55.204(3); 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         Section 12.  Subsection (1) of section 56.29, Florida

20  Statutes, is amended to read:

21         56.29  Proceedings supplementary.--

22         (1)  When any person or entity holds an unsatisfied

23  judgment execution and has delivered a writ of execution to

24  any sheriff, the judgment holder plaintiff in execution may

25  file an affidavit so stating, identifying the issuing court,

26  the case number, the unsatisfied amount of the judgment

27  including accrued costs and interest, and that the execution

28  is valid and outstanding, and thereupon the judgment holder is

29  entitled to these proceedings supplementary to execution.

30         Section 13.  Subsections (2) and (4) of section 222.01,

31  Florida Statutes, are amended to read:

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1         222.01  Designation of homestead by owner before

 2  levy.--

 3         (2)  When a certified copy of a judgment has been filed

 4  in the public records of a county pursuant to chapter 55 s.

 5  55.10, a person who is entitled to the benefit of the

 6  provisions of the State Constitution exempting real property

 7  as homestead and who has a contract to sell or a commitment

 8  from a lender for a mortgage on the homestead may file a

 9  notice of homestead in the public records of the county in

10  which the homestead property is located in substantially the

11  following form:

12  

13                       NOTICE OF HOMESTEAD

14  

15         To:...(Name and address of judgment creditor as

16         shown on recorded judgment and name and address

17         of any other person shown in the recorded

18         judgment to receive a copy of the Notice of

19         Homestead)....

20  

21         You are notified that the undersigned claims as

22         homestead exempt from levy and execution under

23         Section 4, Article X of the State Constitution,

24         the following described property:

25  

26                ...(Legal description)...

27  

28         The undersigned certifies, under oath, that he

29         or she has applied for and received the

30         homestead tax exemption as to the

31         above-described property, that .... is the tax

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1         identification parcel number of this property,

 2         and that the undersigned has resided on this

 3         property continuously and uninterruptedly from

 4         ...(date)... to the date of this Notice of

 5         Homestead. Further, the undersigned will either

 6         convey or mortgage the above-described property

 7         pursuant to the following:

 8  

 9         ...(Describe the contract of sale or loan

10         commitment by date, names of parties, date of

11         anticipated closing, and amount. The name,

12         address, and telephone number of the person

13         conducting the anticipated closing must be set

14         forth.)...

15  

16         The undersigned also certifies, under oath,

17         that the judgment lien filed by you on

18         ...(date)... and recorded in Official Records

19         Book ...., Page ...., of the Public Records of

20         ........ County, Florida, does not constitute a

21         valid lien on the described property.

22  

23         YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION

24         222.01 ET SEQ., FLORIDA STATUTES, THAT WITHIN

25         45 DAYS AFTER THE MAILING OF THIS NOTICE YOU

26         MUST FILE AN ACTION IN THE CIRCUIT COURT OF

27         ........ COUNTY, FLORIDA, FOR A DECLARATORY

28         JUDGMENT TO DETERMINE THE CONSTITUTIONAL

29         HOMESTEAD STATUS OF THE SUBJECT PROPERTY OR TO

30         FORECLOSE YOUR JUDGMENT LIEN ON THE PROPERTY

31         AND RECORD A LIS PENDENS IN THE PUBLIC RECORDS

                                  17

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1         OF THE COUNTY WHERE THE HOMESTEAD IS LOCATED.

 2         YOUR FAILURE TO SO ACT WILL RESULT IN ANY BUYER

 3         OR LENDER, OR HIS OR HER SUCCESSORS AND

 4         ASSIGNS, UNDER THE ABOVE-DESCRIBED CONTRACT OF

 5         SALE OR LOAN COMMITMENT TO TAKE FREE AND CLEAR

 6         OF ANY JUDGMENT LIEN YOU MAY HAVE ON THE

 7         PROPERTY.

 8  

 9         This .... day of ............, 2.....

10                                ........................

11                              ...(Signature of Owner)...

12  

13                                ........................

14                           ...(Printed Name of Owner)...

15  

16                                ........................

17                                 ...(Owner's Address)...

18  

19         Sworn to and subscribed before me by

20         ........................ who is personally

21         known to me or produced

22         ........................ as identification,

23         this .... day of ............, 2.....

24  

25                                ........................

26                                           Notary Public

27  

28         (4)  A lien pursuant to chapter 55 s. 55.10 of any

29  lienor upon whom such notice is served, who fails to institute

30  an action for a declaratory judgment to determine the

31  constitutional homestead status of the property described in

                                  18

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1  the notice of homestead or to file an action to foreclose the

 2  judgment lien, together with the filing of a lis pendens in

 3  the public records of the county in which the homestead is

 4  located, within 45 days after service of such notice shall be

 5  deemed as not attaching to the property by virtue of its

 6  status as homestead property as to the interest of any buyer

 7  or lender, or his or her successors or assigns, who takes

 8  under the contract of sale or loan commitment described above

 9  within 180 days after the filing in the public records of the

10  notice of homestead. This subsection shall not act to prohibit

11  a lien from attaching to the real property described in the

12  notice of homestead at such time as the property loses its

13  homestead status.

14         Section 14.  Subsection (2) and paragraph (b) of

15  subsection (3) of section 319.27, Florida Statutes, are

16  amended to read:

17         319.27  Notice of lien on motor vehicles or mobile

18  homes; notation on certificate; recording of lien.--

19         (2)  No lien for purchase money or as security for a

20  debt in the form of a security agreement, retain title

21  contract, conditional bill of sale, chattel mortgage, or other

22  similar instrument or any other nonpossessory lien, including

23  a lien for child support, upon a motor vehicle or mobile home

24  upon which a Florida certificate of title has been issued

25  shall be enforceable in any of the courts of this state

26  against creditors or subsequent purchasers for a valuable

27  consideration and without notice, unless a sworn notice of

28  such lien has been filed in the department and such lien has

29  been noted upon the certificate of title of the motor vehicle

30  or mobile home. Such notice shall be effective as constructive

31  notice when filed. The No interest of a statutory

                                  19

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1  nonpossessory lienor; the interest of a nonpossessory

 2  execution, attachment, or equitable lienor; or the interest of

 3  a lien creditor as defined in s. 679.1021(1)(zz) 679.301(3),

 4  if nonpossessory, shall not be enforceable against creditors

 5  or subsequent purchasers for a valuable consideration unless

 6  such interest becomes a possessory lien or is noted upon the

 7  certificate of title for the subject motor vehicle or mobile

 8  home prior to the occurrence of the subsequent transaction.

 9  Provided the provisions of this subsection relating to a

10  nonpossessory statutory lienor; a nonpossessory execution,

11  attachment, or equitable lienor; or the interest of a lien

12  creditor as defined in s. 679.1021(1)(zz) 679.301(3) shall not

13  apply to liens validly perfected prior to October 1, 1988. The

14  notice of lien shall provide the following information:

15         (a)  The date of the lien if a security agreement,

16  retain title contract, conditional bill of sale, chattel

17  mortgage, or other similar instrument was executed prior to

18  the filing of the notice of lien;

19         (b)  The name and address of the registered owner;

20         (c)  A description of the motor vehicle or mobile home,

21  showing the make, type, and vehicle identification number; and

22         (d)  The name and address of the lienholder.

23         (3)

24         (b)  As applied to a determination of the respective

25  rights of a secured party under this chapter and a lien

26  creditor as defined by s. 679.1021(1)(zz) 679.301(3), or a

27  nonpossessory statutory lienor, a security interest under this

28  chapter shall be perfected upon the filing of the notice of

29  lien with the department, the county tax collector, or their

30  agents. Provided, however, the date of perfection of a

31  security interest of such secured party shall be the same date

                                  20

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    Florida Senate - 2004                                  SB 3012
    32-653D-04                                          See HB 955




 1  as the execution of the security agreement or other similar

 2  instrument if the notice of lien is filed in accordance with

 3  this subsection within 15 days after the debtor receives

 4  possession of the motor vehicle or mobile home and executes

 5  such security agreement or other similar instrument. The date

 6  of filing of the notice of lien shall be the date of its

 7  receipt by the department central office in Tallahassee, if

 8  first filed there, or otherwise by the office of the county

 9  tax collector, or their agents.

10         Section 15.  Paragraph (zz) of subsection (1) of

11  section 679.1021, Florida Statutes, is amended to read:

12         679.1021  Definitions and index of definitions.--

13         (1)  In this chapter, the term:

14         (zz)  "Lien creditor" means:

15         1.  A creditor that has acquired a lien on the property

16  involved by attachment, levy, judgment lien certificate, or

17  the like;

18         2.  An assignee for benefit of creditors from the time

19  of assignment;

20         3.  A trustee in bankruptcy from the date of the filing

21  of the petition; or

22         4.  A receiver in equity from the time of appointment.

23         Section 16.  Except as otherwise provided herein, this

24  act shall take effect upon becoming a law.

25  

26  

27  

28  

29  

30  

31  

                                  21

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