HB 0955

1	A bill to be entitled
2	An act relating to judgment liens; amending s. 55.202,
3	F.S.; providing that motor vehicles are personal property
4	for purposes of a judgment lien; revising procedures for
5	acquiring a judgment lien; providing court authorization
6	to file a judgment lien certificate before a judgment
7	becomes final under certain circumstances; providing
8	effect; amending s. 55.204, F.S.; revising provisions
9	relating to continuation of judgment liens; revising
10	provisions requiring the Department of State to maintain
11	certain files and information; amending s. 55.205, F.S.;
12	deleting a provision authorizing certain creditors to
13	bring certain actions against property of a debtor;
14	amending ss. 55.602, 55.603, 55.604, 55.605, and 55.606,
15	F.S.; revising provisions relating to foreign judgments to
16	apply only to out-of-country foreign judgments; amending
17	s. 56.21, F.S.; revising requirements for notices of a
18	levy and execution sale; amending s. 56.27, F.S.;
19	clarifying provisions relating to payment of money
20	received under execution; amending s. 56.29, F.S.;
21	revising requirements regarding supplementary proceedings
22	for unsatisfied judgments; amending s. 319.27, F.S.;
23	excluding certain lien creditors from provisions providing
24	for unenforceability of certain interests; correcting a
25	cross reference; amending s. 679.1021, F.S.; revising a
26	definition of ?lien creditor?; providing effective dates.
27
28	Be It Enacted by the Legislature of the State of Florida:
29
30	Section 1.  Subsections (2) and (3) of section 55.202,
31	Florida Statutes, are amended to read:
32	55.202  Judgments, orders, and decrees; lien on personal
33	property.--
34	(2)  A judgment lien may be acquired on a judgment debtor's
35	interest in all personal property in this state subject to
36	execution under s. 56.061, including motor vehicles as defined
37	in s. 320.01, other than fixtures, money, negotiable
38	instruments, and mortgages.
39	(a)  A judgment lien is acquired by filing a judgment lien
40	certificate in accordance with s. 55.203 with the Department of
41	State after the judgment has become final and if the time to
42	move for rehearing has lapsed, no motion for rehearing is
43	pending, and no stay of the judgment or its enforcement is then
44	in effect. A court may authorize, for cause shown, the filing of
45	a judgment lien certificate before a judgment has become final
46	when the court has authorized the issuance of a writ of
47	execution in the same matter. A judgment lien certificate not
48	filed in compliance with this subsection is permanently void and
49	of no effect.
50	(b)  For any lien, warrant, assessment, or judgment
51	collected by the Department of Revenue, a judgment lien may be
52	acquired by filing the judgment lien certificate information or
53	warrant with the Department of State in accordance with
54	subsection (5).
55	(c)  Except as provided in s. 55.208, the effective date of
56	a judgment lien is the date, including the time of day, of
57	filing. Although no lien attaches to property, and a creditor
58	does not become a lien creditor as to liens under chapter 679,
59	until the debtor acquires an interest in the property, priority
60	among competing judgment liens is determined in order of filing
61	date and time.
62	(d)  Except as provided in s. 55.204(3), a judgment
63	creditor may file only one effective judgment lien certificate
64	based upon a particular judgment.
65	(3)  Except as otherwise provided in s. 55.208, the
66	priority of a judgment lien acquired in accordance with this
67	section or s. 55.204(3) is established at the date and time the
68	judgment lien certificate is filed.
69	Section 2.  Subsections (4) and (6) of section 55.204,
70	Florida Statutes, are amended to read:
71	55.204  Duration and continuation of judgment lien;
72	destruction of records.--
73	(4)  A judgment lien continues only as to itemized property
74	for an additional 90 days after lapse of the lien. Such judgment
75	lien will continue only if:
76	(a)  The property had been itemized and its location
77	described with sufficient particularity in the instructions for
78	levy to permit the sheriff to act;
79	(b)  The instructions for the levy had been delivered to
80	the sheriff prior to the date of lapse of the lien to permit the
81	sheriff to act; and
82	(c)  The property was located in the county in which the
83	sheriff has jurisdiction at the time of delivery of the
84	instruction for levy. Subsequent removal of the property does
85	not defeat the lien. A court may order continuation of the lien
86	beyond the 90-day period on a showing that extraordinary
87	circumstances have prevented levy.
88	(6)  If no second judgment lien is filed, the Department of
89	State shall maintain each judgment lien file and all information
90	contained therein for a minimum of 1 year after the judgment
91	lien lapses in accordance with this section. If a second
92	judgment lien is filed, the department shall maintain both files
93	and all information contained in such files for a minimum of 1
94	year after the second judgment lien lapses.
95	Section 3.  Subsection (1) of section 55.205, Florida
96	Statutes, is amended to read:
97	55.205  Effect of judgment lien.--
98	(1)  A valid judgment lien gives the judgment creditor the
99	right to proceed against the property of the debtor through writ
100	of execution, garnishment, or other judicial process. A judgment
101	creditor who has not acquired a judgment lien as provided in s.
102	55.202 or whose lien has lapsed may nevertheless proceed against
103	the judgment debtor's property through any appropriate other
104	judicial process. Such judgment creditor proceeding by writ of
105	execution acquires a lien as of the time of levy and only on the
106	property levied upon. Except as provided in s. 55.208, such
107	judgment creditor takes subject to the claims and interest of
108	priority judgment creditors.
109	Section 4.  Subsection (2) of section 55.602, Florida
110	Statutes, is amended to read:
111	55.602  Definitions.--As used in this act, the term:
112	(2)  "Out-of-country foreign judgment" means any judgment
113	of a foreign state granting or denying recovery of a sum of
114	money, other than a judgment for taxes, a fine, or other
115	penalty.
116	Section 5.  Section 55.603, Florida Statutes, is amended to
117	read:
118	55.603  Applicability.--This act applies to any out-of-
119	out-of-country foreign judgment that is final and conclusive and
120	enforceable where rendered, even though an appeal therefrom is
121	pending or is subject to appeal.
122	Section 6.  Section 55.604, Florida Statutes, is amended to
123	read:
124	55.604  Recognition and enforcement.--Except as provided in
125	s. 55.605, an out-of-country a foreign judgment meeting the
126	requirements of s. 55.603 is conclusive between the parties to
127	the extent that it grants or denies recovery of a sum of money.
128	Procedures for recognition and enforceability of an out-of-
129	country a foreign judgment shall be as follows:
130	(1)  The out-of-country foreign judgment shall be filed
131	with the clerk of the court and recorded in the public records
132	in the county or counties where enforcement is sought.
133	(a)  At the time of the recording of an out-of-country a
134	foreign judgment, the judgment creditor shall make and record
135	with the clerk of the circuit court an affidavit setting forth
136	the name, social security number, if known, and last known post-
137	office address of the judgment debtor and of the judgment
138	creditor.
139	(b)  Promptly upon the recording of the out-of-country
140	foreign judgment and the affidavit, the clerk shall mail notice
141	of the recording of the out-of-country foreign judgment, by
142	registered mail with return receipt requested, to the judgment
143	debtor at the address given in the affidavit and shall make a
144	note of the mailing in the docket. The notice shall include the
145	name and address of the judgment creditor and of the judgment
146	creditor's attorney, if any, in this state. In addition, the
147	judgment creditor may mail a notice of the recording of the
148	judgment to the judgment debtor and may record proof of mailing
149	with the clerk. The failure of the clerk to mail notice of
150	recording will not affect the enforcement proceedings if proof
151	of mailing by the judgment creditor has been recorded.
152	(2)  The judgment debtor shall have 30 days after service
153	of the notice to file a notice of objection with the clerk of
154	the court specifying the grounds for nonrecognition or
155	nonenforceability under this act.
156	(3)  Upon the application of any party, and after proper
157	notice, the circuit court shall have jurisdiction to conduct a
158	hearing, determine the issues, and enter an appropriate order
159	granting or denying recognition in accordance with the terms of
160	this act.
161	(4)  If the judgment debtor fails to file a notice of
162	objection within the required time, the clerk of the court shall
163	record a certificate stating that no objection has been filed.
164	(5)  Upon entry of an order recognizing the out-of-country
165	foreign judgment, or upon recording of the clerk's certificate
166	set forth above, the out-of-country foreign judgment shall be
167	enforced in the same manner as the judgment of a court of this
168	state.
169	(6)  Once an order recognizing the out-of-country foreign
170	judgment has been entered by a court of this state, the order
171	and a copy of the judgment may be recorded in any other county
172	of this state without further notice or proceedings, and shall
173	be enforceable in the same manner as the judgment of a court of
174	this state.
175	(7)  A lien on real estate in any county shall be created
176	only when there has been recorded in the official records of the
177	county (a) a certified copy of the judgment, and (b) a copy of
178	the clerk's certificate or the order recognizing the out-of-
179	country foreign judgment. The priority of such lien will be
180	established as of the time the latter of the two recordings has
181	occurred. Such lien may be partially released or satisfied by
182	the person designated pursuant to paragraph (1).
183	(8)  A judgment lien on personal property is acquired only
184	when a judgment lien certificate is filed in accordance with s.
185	55.203 with the Department of State.
186	Section 7.  Section 55.605, Florida Statutes, is amended to
187	read:
188	55.605  Grounds for nonrecognition.--
189	(1)  An out-of-country A foreign judgment is not conclusive
190	if:
191	(a)  The judgment was rendered under a system which does
192	not provide impartial tribunals or procedures compatible with
193	the requirements of due process of law.
194	(b)  The foreign court did not have personal jurisdiction
195	over the defendant.
196	(c)  The foreign court did not have jurisdiction over the
197	subject matter.
198	(2)  An out-of-country A foreign judgment need not be
199	recognized if:
200	(a)  The defendant in the proceedings in the foreign court
201	did not receive notice of the proceedings in sufficient time to
202	enable him or her to defend.
203	(b)  The judgment was obtained by fraud.
204	(c)  The cause of action or claim for relief on which the
205	judgment is based is repugnant to the public policy of this
206	state.
207	(d)  The judgment conflicts with another final and
208	conclusive order.
209	(e)  The proceeding in the foreign court was contrary to an
210	agreement between the parties under which the dispute in
211	question was to be settled otherwise than by proceedings in that
212	court.
213	(f)  In the case of jurisdiction based only on personal
214	service, the foreign court was a seriously inconvenient forum
215	for the trial of the action.
216	(g)  The foreign jurisdiction where judgment was rendered
217	would not give recognition to a similar judgment rendered in
218	this state.
219	Section 8.  Section 55.606, Florida Statutes, is amended to
220	read:
221	55.606  Personal jurisdiction.--The out-of-country foreign
222	judgment shall not be refused recognition for lack of personal
223	jurisdiction if:
224	(1)  The defendant was served personally in the foreign
225	state;
226	(2)  The defendant voluntarily appeared in the proceedings,
227	other than for the purpose of protecting property seized or
228	threatened with seizure in the proceedings or of contesting the
229	jurisdiction of the court over him or her;
230	(3)  The defendant, prior to the commencement of the
231	proceedings, had agreed to submit to the jurisdiction of the
232	foreign court with respect to the subject matter involved;
233	(4)  The defendant was domiciled in the foreign state when
234	the proceedings were instituted, or, being a body corporate, had
235	its principal place of business, was incorporated, or had
236	otherwise acquired corporate status, in the foreign state;
237	(5)  The defendant had a business office in the foreign
238	state and the proceedings in the foreign court involved a cause
239	of action or a claim for relief arising out of business done by
240	the defendant through that office in the foreign state; or
241	(6)  The defendant operated a motor vehicle or airplane in
242	the foreign state and the proceedings involved a cause of action
243	or claim for relief arising out of such operation.
244	Section 9.  Effective October 1, 2004, section 56.21,
245	Florida Statutes, is amended to read:
246	56.21  Execution sales; notice.--Notice of all sales under
247	execution shall be given by advertisement once each week for 4
248	successive weeks in a newspaper published in the county in which
249	the sale is to take place. The time of such notice may be
250	shortened in the discretion of the court from which the
251	execution issued, upon affidavit that the property to be sold is
252	subject to decay and will not sell for its full value if held
253	until date of sale. On or before the date of the first
254	publication or posting of the notice of sale, a copy of the
255	notice of sale shall be furnished by certified mail to the
256	attorney of record of the judgment debtor, or to the judgment
257	debtor at the judgment debtor's last known address if the
258	judgment debtor does not have an attorney of record. Such copy
259	of the notice of sale shall be mailed even though a default
260	judgment was entered. When levying upon personal property, a
261	notice of such levy and execution sale and a copy of the
262	affidavit required by s. 56.27(4) shall be sent by the sheriff
263	made by the levying creditor to the attorneys attorney of record
264	of all the judgment creditors, creditor or to all the judgment
265	creditors who do not have an attorney of record, creditor who
266	have has acquired a judgment lien as provided in s. 55.202 or s.
267	55.204(3), and whose liens have not lapsed at the time of levy,
268	at the address listed in the judgment lien certificate, or, if
269	amended, in any amendment to the judgment lien certificate, and
270	to all secured creditors who have filed financing statements as
271	provided in part V of chapter 679 s. 679.401 in the name of the
272	judgment debtor reflecting a security interest in property of
273	the kind to be sold at the execution sale at the address listed
274	in the financing statement, or, if amended, in any amendment to
275	the financing statement. Such notice shall be made in the same
276	manner as notice is made to any judgment debtor under this
277	section. When levying upon real property, notice of such levy
278	and execution sale shall be made to the property owner of record
279	in the same manner as notice is made to any judgment debtor
280	pursuant to this section. When selling real or personal
281	property, the sale date shall not be earlier than 30 days after
282	the date of the first advertisement.
283	Section 10.  Subsections (1), (2), and (4) of section
284	56.27, Florida Statutes, are amended to read:
285	56.27  Executions; payment of money collected.--
286	(1)  All money received under executions shall be paid, in
287	the order prescribed, to the following: the sheriff, for costs;
288	the levying creditor in the amount of $500 as liquidated
289	expenses; if the levy is upon real property, the first priority
290	lienholder under s. 55.10; and if the levy is upon personal
291	property, and the first priority lienholder under s. 55.202, s.
292	55.204(3), or s. 55.208(2), as set forth in an affidavit
293	required by subsection (4), or his or her attorney, in
294	satisfaction of the judgment lien, provided that the judgment
295	lien has not lapsed at the time of the levy. The receipt of the
296	attorney shall be a release of the officer paying the money to
297	him or her. When the name of more than one attorney appears in
298	the court file, the money shall be paid to the attorney who
299	originally commenced the action or who made the original defense
300	unless the file shows that another attorney has been
301	substituted.
302	(2)  When property sold under execution brings more than
303	the amount needed to satisfy the provisions of subsection (1),
304	the surplus shall be paid in the order of priority to any
305	judgment lienholders whose judgment liens have not lapsed.
306	Priority of liens on personal property shall be based on the
307	effective date of the judgment lien acquired under s. 55.202, s.
308	55.204(3), or s. 55.208(2), as set forth in an affidavit
309	required under subsection (4). If there is a surplus after all
310	valid judgment liens and execution liens have been satisfied,
311	the surplus must be paid to the defendant.
312	(4)  On or Before the date of the first publication or
313	posting of the notice of sale provided for under s. 56.21, the
314	levying creditor shall deliver to the sheriff file an affidavit
315	setting forth the following as to the judgment debtor:
316	(a)  An attestation that the levying creditor has reviewed
317	the database or judgment lien records established in accordance
318	with ss. 55.201-55.209 and that the information contained in the
319	affidavit based on that review is true and correct;
320	(b)  The information required under s. 55.203(1) and (2)
321	for each judgment lien certificate indexed under the name of the
322	judgment debtor as to each judgment creditor; the file number
323	assigned to the record of the original and, if any, the second
324	judgment lien; and the date of filing for each judgment lien
325	certificate under s. 55.202 or s. 55.204(3); and
326	(c)  A statement that the levying creditor either does not
327	have any other levy in process or, if another levy is in
328	process, the levying creditor believes in good faith that the
329	total value of the property under execution does not exceed the
330	amount of outstanding judgments.
331	Section 11.  Subsection (1) of section 56.29, Florida
332	Statutes, is amended to read:
333	56.29  Proceedings supplementary.--
334	(1)  When any person or entity holds an unsatisfied
335	judgment execution and has delivered a writ of execution to any
336	sheriff, the judgment holder plaintiff in execution may file an
337	affidavit so stating, identifying the issuing court, the case
338	number, the unsatisfied amount of the judgment including accrued
339	costs and interest, and that the execution is valid and
340	outstanding, and thereupon the judgment holder is entitled to
341	these proceedings supplementary to execution.
342	Section 12.  Subsection (2) and paragraph (b) of subsection
343	(3) of section 319.27, Florida Statutes, are amended to read:
344	319.27  Notice of lien on motor vehicles or mobile homes;
345	notation on certificate; recording of lien.--
346	(2)  No lien for purchase money or as security for a debt
347	in the form of a security agreement, retain title contract,
348	conditional bill of sale, chattel mortgage, or other similar
349	instrument or any other nonpossessory lien, including a lien for
350	child support, upon a motor vehicle or mobile home upon which a
351	Florida certificate of title has been issued shall be
352	enforceable in any of the courts of this state against creditors
353	or subsequent purchasers for a valuable consideration and
354	without notice, unless a sworn notice of such lien has been
355	filed in the department and such lien has been noted upon the
356	certificate of title of the motor vehicle or mobile home. Such
357	notice shall be effective as constructive notice when filed. The
358	No interest of a statutory nonpossessory lienor; the interest of
359	a nonpossessory execution, attachment, or equitable lienor; or
360	the interest of a lien creditor as defined in s.
361	679.1021(1)(zz), other than one who has acquired a lien on a
362	motor vehicle by judgment lien certificate 679.301(3), if
363	nonpossessory, shall not be enforceable against creditors or
364	subsequent purchasers for a valuable consideration unless such
365	interest becomes a possessory lien or is noted upon the
366	certificate of title for the subject motor vehicle or mobile
367	home prior to the occurrence of the subsequent transaction.
368	Provided the provisions of this subsection relating to a
369	nonpossessory statutory lienor; a nonpossessory execution,
370	attachment, or equitable lienor; or the interest of a lien
371	creditor as defined in s. 679.1021(1)(zz) 679.301(3) shall not
372	apply to liens validly perfected prior to October 1, 1988. The
373	notice of lien shall provide the following information:
374	(a)  The date of the lien if a security agreement, retain
375	title contract, conditional bill of sale, chattel mortgage, or
376	other similar instrument was executed prior to the filing of the
377	notice of lien;
378	(b)  The name and address of the registered owner;
379	(c)  A description of the motor vehicle or mobile home,
380	showing the make, type, and vehicle identification number; and
381	(d)  The name and address of the lienholder.
382	(3)
383	(b)  As applied to a determination of the respective rights
384	of a secured party under this chapter and a lien creditor as
385	defined by s. 679.1021(1)(zz) 679.301(3), or a nonpossessory
386	statutory lienor, a security interest under this chapter shall
387	be perfected upon the filing of the notice of lien with the
388	department, the county tax collector, or their agents. Provided,
389	however, the date of perfection of a security interest of such
390	secured party shall be the same date as the execution of the
391	security agreement or other similar instrument if the notice of
392	lien is filed in accordance with this subsection within 15 days
393	after the debtor receives possession of the motor vehicle or
394	mobile home and executes such security agreement or other
395	similar instrument. The date of filing of the notice of lien
396	shall be the date of its receipt by the department central
397	office in Tallahassee, if first filed there, or otherwise by the
398	office of the county tax collector, or their agents.
399	Section 13.  Paragraph (zz) of subsection (1) of section
400	679.1021, Florida Statutes, is amended to read:
401	679.1021  Definitions and index of definitions.--
402	(1)  In this chapter, the term:
403	(zz)  "Lien creditor" means:
404	1.  A creditor that has acquired a lien on the property
405	involved by attachment, levy, judgment lien certificate, or the
406	like;
407	2.  An assignee for benefit of creditors from the time of
408	assignment;
409	3.  A trustee in bankruptcy from the date of the filing of
410	the petition; or
411	4.  A receiver in equity from the time of appointment.
412	Section 14.  Except as otherwise provided herein, this act
413	shall take effect upon becoming a law.

CODING: Words stricken are deletions; words underlined are additions.