| 1 | The Committee on Transportation recommends the following: |
| 2 |
|
| 3 | Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to judgment liens; amending s. 55.141, |
| 7 | F.S.; eliminating authority of judges to act under |
| 8 | provisions relating to satisfaction of judgments and |
| 9 | decrees when there is no clerk of court; revising |
| 10 | requirements of the clerk when accepting payment for |
| 11 | satisfaction of a judgment and executing and recording a |
| 12 | satisfaction of judgment; providing a sample form for |
| 13 | recording a satisfaction of judgment; providing duties of |
| 14 | the clerk relating to location and notification of |
| 15 | judgment holders and payment of certain amounts to |
| 16 | judgment holders, less certain fees and expenses; amending |
| 17 | s. 55.202, F.S.; revising procedures for acquiring a |
| 18 | judgment lien; providing court authorization to file a |
| 19 | judgment lien certificate before a judgment becomes final |
| 20 | under certain circumstances; providing effect; amending s. |
| 21 | 55.204, F.S.; revising provisions relating to continuation |
| 22 | of judgment liens; revising provisions requiring the |
| 23 | Department of State to maintain certain files and |
| 24 | information; amending s. 55.205, F.S.; deleting a |
| 25 | provision authorizing certain creditors to bring certain |
| 26 | actions against property of a debtor; amending ss. 55.602, |
| 27 | 55.603, 55.604, 55.605, and 55.606, F.S.; revising |
| 28 | provisions relating to foreign judgments to apply only to |
| 29 | out-of-country foreign judgments; amending s. 56.21, F.S.; |
| 30 | revising requirements for notices of a levy and execution |
| 31 | sale; amending s. 56.27, F.S.; clarifying provisions |
| 32 | relating to payment of money received under execution; |
| 33 | amending s. 56.29, F.S.; revising requirements regarding |
| 34 | supplementary proceedings for unsatisfied judgments; |
| 35 | amending s. 222.01, F.S.; expanding application of certain |
| 36 | judgment and lien provisions to designations of homestead |
| 37 | property before a levy to include foreign judgments; |
| 38 | amending s. 319.27, F.S.; correcting a cross reference; |
| 39 | amending s. 679.1021, F.S.; revising a definition of "lien |
| 40 | creditor"; providing effective dates. |
| 41 |
|
| 42 | Be It Enacted by the Legislature of the State of Florida: |
| 43 |
|
| 44 | Section 1. Effective July 1, 2004, section 55.141, Florida |
| 45 | Statutes, as amended by chapter 2003-402, Laws of Florida, is |
| 46 | amended to read: |
| 47 | 55.141 Satisfaction of judgments and decrees; duties of |
| 48 | clerk and judge.-- |
| 49 | (1) All judgments and decrees for the payment of money |
| 50 | rendered in the courts of this state and which have become |
| 51 | final, may be satisfied at any time prior to the actual levy of |
| 52 | execution issued thereon by payment of the full amount of such |
| 53 | judgment or decree, with interest thereon, plus the costs of the |
| 54 | issuance, if any, of execution thereon into the registry of the |
| 55 | court where rendered. |
| 56 | (2) Upon such payment, the clerk, or the judge if there is |
| 57 | no clerk, shall execute issue his or her receipt therefor and |
| 58 | shall record in the official records a satisfaction of judgment, |
| 59 | provided by the judgment holder, upon payment of the recording |
| 60 | charge prescribed in s. 28.24(12). Upon payment in the amount |
| 61 | required in subsection (1) and the recording charge required by |
| 62 | this subsection and execution and recordation of the |
| 63 | satisfaction by the clerk, any lien created by such judgment is |
| 64 | satisfied and discharged plus the necessary costs of mailing to |
| 65 | the clerk or judge. The clerk or judge shall formally notify the |
| 66 | owner of record of such judgment or decree, if such person and |
| 67 | his or her address are known to the clerk or judge receiving |
| 68 | such payment, and, upon request therefor, shall pay over to the |
| 69 | person entitled, or to his or her order, the full amount of the |
| 70 | payment so received, less his or her fees for issuing execution |
| 71 | on such judgment or decree, if any has been issued, and less his |
| 72 | or her fees for receiving into and paying out of the registry of |
| 73 | the court such payment, together with the fees of the clerk for |
| 74 | receiving into and paying such money out of the registry of the |
| 75 | court. |
| 76 | (3) The satisfaction of judgment executed by the clerk |
| 77 | shall be substantially in the following form: |
| 78 |
|
| 79 | Satisfaction of Judgment by Clerk |
| 80 |
|
| 81 | The undersigned Clerk acknowledges on this day of [month], |
| 82 | [year], receipt from [identity of party making payment] of $ |
| 83 | [total amount received], comprised of $ face amount of the |
| 84 | judgment; $ interest accruing on the judgment through the |
| 85 | date of payment; $ costs of issuance of any execution; and $ |
| 86 | for recording. |
| 87 |
|
| 88 | Pursuant to section 55.141, Florida Statutes, said sum is paid |
| 89 | to satisfy the lien and to discharge that certain final judgment |
| 90 | in favor of [name of judgment holder] whose last known address, |
| 91 | if known, is [address if shown on face of judgment or in |
| 92 | recorded affidavit pursuant to section 55.10(1), Florida |
| 93 | Statutes] against [name of judgment debtor] recorded in Official |
| 94 | Records Volume/Book , page of the public records of |
| 95 | County, Florida. |
| 96 |
|
| 97 | Upon the execution of this satisfaction, said judgment is |
| 98 | satisfied and discharged. |
| 99 |
|
| 100 | If an address for the judgment holder was provided pursuant to |
| 101 | section 55.10(1), Florida Statutes, I certify that a copy of |
| 102 | this notice has been sent to the judgment holder at said address |
| 103 | by certified mail with return receipt requested or by registered |
| 104 | mail if the notice is to be sent outside the continental United |
| 105 | States. |
| 106 |
|
| 107 | Clerk of Court Full payment of judgments and decrees as in the |
| 108 | preceding subsections of this section provided shall constitute |
| 109 | full payment and satisfaction thereof and any lien created by |
| 110 | such judgment or decree shall thereupon be satisfied and |
| 111 | discharged. |
| 112 | (4) If an address for the judgment holder was provided |
| 113 | pursuant to s. 55.10(1), the clerk shall formally send a copy of |
| 114 | the satisfaction to the judgment holder at said address by |
| 115 | certified mail with return receipt or by registered mail if the |
| 116 | notice is to be sent outside the continental United States. If |
| 117 | an address is not provided pursuant to s. 55.10(1) or if |
| 118 | delivery cannot be effected to such address, the clerk may, but |
| 119 | is not obligated to, make reasonable attempts to locate the |
| 120 | judgment holder. The discharge of the lien by the issuance of |
| 121 | the satisfaction is not dependent upon the delivery of notice by |
| 122 | the clerk. |
| 123 | (5) Upon application of the judgment holder, the clerk |
| 124 | shall pay over to the judgment holder the full amount of the |
| 125 | payment received, less the clerk's fees for issuing execution on |
| 126 | such judgment, if any has been issued, less the clerk's fees for |
| 127 | receiving into and paying out of the registry of the court such |
| 128 | payment, less the clerk's fees for recording the satisfaction of |
| 129 | judgment, and, if the clerk incurred expenses in locating the |
| 130 | judgment holder, less the reasonable expenses so incurred. |
| 131 | Section 2. Subsections (2) and (3) of section 55.202, |
| 132 | Florida Statutes, are amended to read: |
| 133 | 55.202 Judgments, orders, and decrees; lien on personal |
| 134 | property.-- |
| 135 | (2) A judgment lien may be acquired on a judgment debtor's |
| 136 | interest in all personal property in this state subject to |
| 137 | execution under s. 56.061, other than fixtures, money, |
| 138 | negotiable instruments, and mortgages. |
| 139 | (a) A judgment lien is acquired by filing a judgment lien |
| 140 | certificate in accordance with s. 55.203 with the Department of |
| 141 | State after the judgment has become final and if the time to |
| 142 | move for rehearing has lapsed, no motion for rehearing is |
| 143 | pending, and no stay of the judgment or its enforcement is then |
| 144 | in effect. A court may authorize, for cause shown, the filing of |
| 145 | a judgment lien certificate before a judgment has become final |
| 146 | when the court has authorized the issuance of a writ of |
| 147 | execution in the same matter. A judgment lien certificate not |
| 148 | filed in compliance with this subsection is permanently void and |
| 149 | of no effect. |
| 150 | (b) For any lien, warrant, assessment, or judgment |
| 151 | collected by the Department of Revenue, a judgment lien may be |
| 152 | acquired by filing the judgment lien certificate information or |
| 153 | warrant with the Department of State in accordance with |
| 154 | subsection (5). |
| 155 | (c) Except as provided in s. 55.208, the effective date of |
| 156 | a judgment lien is the date, including the time of day, of |
| 157 | filing. Although no lien attaches to property, and a creditor |
| 158 | does not become a lien creditor as to liens under chapter 679, |
| 159 | until the debtor acquires an interest in the property, priority |
| 160 | among competing judgment liens is determined in order of filing |
| 161 | date and time. |
| 162 | (d) Except as provided in s. 55.204(3), a judgment |
| 163 | creditor may file only one effective judgment lien certificate |
| 164 | based upon a particular judgment. |
| 165 | (3) Except as otherwise provided in s. 55.208, the |
| 166 | priority of a judgment lien acquired in accordance with this |
| 167 | section or s. 55.204(3) is established at the date and time the |
| 168 | judgment lien certificate is filed. |
| 169 | Section 3. Subsections (4) and (6) of section 55.204, |
| 170 | Florida Statutes, are amended to read: |
| 171 | 55.204 Duration and continuation of judgment lien; |
| 172 | destruction of records.-- |
| 173 | (4) A judgment lien continues only as to itemized property |
| 174 | for an additional 90 days after lapse of the lien. Such judgment |
| 175 | lien will continue only if: |
| 176 | (a) The property had been itemized and its location |
| 177 | described with sufficient particularity in the instructions for |
| 178 | levy to permit the sheriff to act; |
| 179 | (b) The instructions for the levy had been delivered to |
| 180 | the sheriff prior to the date of lapse of the lien to permit the |
| 181 | sheriff to act; and |
| 182 | (c) The property was located in the county in which the |
| 183 | sheriff has jurisdiction at the time of delivery of the |
| 184 | instruction for levy. Subsequent removal of the property does |
| 185 | not defeat the lien. A court may order continuation of the lien |
| 186 | beyond the 90-day period on a showing that extraordinary |
| 187 | circumstances have prevented levy. |
| 188 | (6) If no second judgment lien is filed, the Department of |
| 189 | State shall maintain each judgment lien file and all information |
| 190 | contained therein for a minimum of 1 year after the judgment |
| 191 | lien lapses in accordance with this section. If a second |
| 192 | judgment lien is filed, the department shall maintain both files |
| 193 | and all information contained in such files for a minimum of 1 |
| 194 | year after the second judgment lien lapses. |
| 195 | Section 4. Subsection (1) of section 55.205, Florida |
| 196 | Statutes, is amended to read: |
| 197 | 55.205 Effect of judgment lien.-- |
| 198 | (1) A valid judgment lien gives the judgment creditor the |
| 199 | right to proceed against the property of the debtor through writ |
| 200 | of execution, garnishment, or other judicial process. A judgment |
| 201 | creditor who has not acquired a judgment lien as provided in s. |
| 202 | 55.202 or whose lien has lapsed may nevertheless proceed against |
| 203 | the judgment debtor's property through any appropriate other |
| 204 | judicial process. Such judgment creditor proceeding by writ of |
| 205 | execution acquires a lien as of the time of levy and only on the |
| 206 | property levied upon. Except as provided in s. 55.208, such |
| 207 | judgment creditor takes subject to the claims and interest of |
| 208 | priority judgment creditors. |
| 209 | Section 5. Subsection (2) of section 55.602, Florida |
| 210 | Statutes, is amended to read: |
| 211 | 55.602 Definitions.--As used in this act, the term: |
| 212 | (2) "Out-of-country foreign judgment" means any judgment |
| 213 | of a foreign state granting or denying recovery of a sum of |
| 214 | money, other than a judgment for taxes, a fine, or other |
| 215 | penalty. |
| 216 | Section 6. Section 55.603, Florida Statutes, is amended to |
| 217 | read: |
| 218 | 55.603 Applicability.--This act applies to any out-of- |
| 219 | country foreign judgment that is final and conclusive and |
| 220 | enforceable where rendered, even though an appeal therefrom is |
| 221 | pending or is subject to appeal. |
| 222 | Section 7. Section 55.604, Florida Statutes, is amended to |
| 223 | read: |
| 224 | 55.604 Recognition and enforcement.--Except as provided in |
| 225 | s. 55.605, an out-of-country a foreign judgment meeting the |
| 226 | requirements of s. 55.603 is conclusive between the parties to |
| 227 | the extent that it grants or denies recovery of a sum of money. |
| 228 | Procedures for recognition and enforceability of an out-of- |
| 229 | country a foreign judgment shall be as follows: |
| 230 | (1) The out-of-country foreign judgment shall be filed |
| 231 | with the clerk of the court and recorded in the public records |
| 232 | in the county or counties where enforcement is sought. |
| 233 | (a) At the time of the recording of an out-of-country a |
| 234 | foreign judgment, the judgment creditor shall make and record |
| 235 | with the clerk of the circuit court an affidavit setting forth |
| 236 | the name, social security number, if known, and last known post- |
| 237 | office address of the judgment debtor and of the judgment |
| 238 | creditor. |
| 239 | (b) Promptly upon the recording of the out-of-country |
| 240 | foreign judgment and the affidavit, the clerk shall mail notice |
| 241 | of the recording of the out-of-country foreign judgment, by |
| 242 | registered mail with return receipt requested, to the judgment |
| 243 | debtor at the address given in the affidavit and shall make a |
| 244 | note of the mailing in the docket. The notice shall include the |
| 245 | name and address of the judgment creditor and of the judgment |
| 246 | creditor's attorney, if any, in this state. In addition, the |
| 247 | judgment creditor may mail a notice of the recording of the |
| 248 | judgment to the judgment debtor and may record proof of mailing |
| 249 | with the clerk. The failure of the clerk to mail notice of |
| 250 | recording will not affect the enforcement proceedings if proof |
| 251 | of mailing by the judgment creditor has been recorded. |
| 252 | (2) The judgment debtor shall have 30 days after service |
| 253 | of the notice to file a notice of objection with the clerk of |
| 254 | the court specifying the grounds for nonrecognition or |
| 255 | nonenforceability under this act. |
| 256 | (3) Upon the application of any party, and after proper |
| 257 | notice, the circuit court shall have jurisdiction to conduct a |
| 258 | hearing, determine the issues, and enter an appropriate order |
| 259 | granting or denying recognition in accordance with the terms of |
| 260 | this act. |
| 261 | (4) If the judgment debtor fails to file a notice of |
| 262 | objection within the required time, the clerk of the court shall |
| 263 | record a certificate stating that no objection has been filed. |
| 264 | (5) Upon entry of an order recognizing the out-of-country |
| 265 | foreign judgment, or upon recording of the clerk's certificate |
| 266 | set forth above, the out-of-country foreign judgment shall be |
| 267 | enforced in the same manner as the judgment of a court of this |
| 268 | state. |
| 269 | (6) Once an order recognizing the out-of-country foreign |
| 270 | judgment has been entered by a court of this state, the order |
| 271 | and a copy of the judgment may be recorded in any other county |
| 272 | of this state without further notice or proceedings, and shall |
| 273 | be enforceable in the same manner as the judgment of a court of |
| 274 | this state. |
| 275 | (7) A lien on real estate in any county shall be created |
| 276 | only when there has been recorded in the official records of the |
| 277 | county (a) a certified copy of the judgment, and (b) a copy of |
| 278 | the clerk's certificate or the order recognizing the out-of- |
| 279 | country foreign judgment. The priority of such lien will be |
| 280 | established as of the time the latter of the two recordings has |
| 281 | occurred. Such lien may be partially released or satisfied by |
| 282 | the person designated pursuant to paragraph (1). |
| 283 | (8) A judgment lien on personal property is acquired only |
| 284 | when a judgment lien certificate is filed in accordance with s. |
| 285 | 55.203 with the Department of State. |
| 286 | Section 8. Section 55.605, Florida Statutes, is amended to |
| 287 | read: |
| 288 | 55.605 Grounds for nonrecognition.-- |
| 289 | (1) An out-of-country A foreign judgment is not conclusive |
| 290 | if: |
| 291 | (a) The judgment was rendered under a system which does |
| 292 | not provide impartial tribunals or procedures compatible with |
| 293 | the requirements of due process of law. |
| 294 | (b) The foreign court did not have personal jurisdiction |
| 295 | over the defendant. |
| 296 | (c) The foreign court did not have jurisdiction over the |
| 297 | subject matter. |
| 298 | (2) An out-of-country A foreign judgment need not be |
| 299 | recognized if: |
| 300 | (a) The defendant in the proceedings in the foreign court |
| 301 | did not receive notice of the proceedings in sufficient time to |
| 302 | enable him or her to defend. |
| 303 | (b) The judgment was obtained by fraud. |
| 304 | (c) The cause of action or claim for relief on which the |
| 305 | judgment is based is repugnant to the public policy of this |
| 306 | state. |
| 307 | (d) The judgment conflicts with another final and |
| 308 | conclusive order. |
| 309 | (e) The proceeding in the foreign court was contrary to an |
| 310 | agreement between the parties under which the dispute in |
| 311 | question was to be settled otherwise than by proceedings in that |
| 312 | court. |
| 313 | (f) In the case of jurisdiction based only on personal |
| 314 | service, the foreign court was a seriously inconvenient forum |
| 315 | for the trial of the action. |
| 316 | (g) The foreign jurisdiction where judgment was rendered |
| 317 | would not give recognition to a similar judgment rendered in |
| 318 | this state. |
| 319 | Section 9. Section 55.606, Florida Statutes, is amended to |
| 320 | read: |
| 321 | 55.606 Personal jurisdiction.--The out-of-country foreign |
| 322 | judgment shall not be refused recognition for lack of personal |
| 323 | jurisdiction if: |
| 324 | (1) The defendant was served personally in the foreign |
| 325 | state; |
| 326 | (2) The defendant voluntarily appeared in the proceedings, |
| 327 | other than for the purpose of protecting property seized or |
| 328 | threatened with seizure in the proceedings or of contesting the |
| 329 | jurisdiction of the court over him or her; |
| 330 | (3) The defendant, prior to the commencement of the |
| 331 | proceedings, had agreed to submit to the jurisdiction of the |
| 332 | foreign court with respect to the subject matter involved; |
| 333 | (4) The defendant was domiciled in the foreign state when |
| 334 | the proceedings were instituted, or, being a body corporate, had |
| 335 | its principal place of business, was incorporated, or had |
| 336 | otherwise acquired corporate status, in the foreign state; |
| 337 | (5) The defendant had a business office in the foreign |
| 338 | state and the proceedings in the foreign court involved a cause |
| 339 | of action or a claim for relief arising out of business done by |
| 340 | the defendant through that office in the foreign state; or |
| 341 | (6) The defendant operated a motor vehicle or airplane in |
| 342 | the foreign state and the proceedings involved a cause of action |
| 343 | or claim for relief arising out of such operation. |
| 344 | Section 10. Effective October 1, 2004, section 56.21, |
| 345 | Florida Statutes, is amended to read: |
| 346 | 56.21 Execution sales; notice.--Notice of all sales under |
| 347 | execution shall be given by advertisement once each week for 4 |
| 348 | successive weeks in a newspaper published in the county in which |
| 349 | the sale is to take place. The time of such notice may be |
| 350 | shortened in the discretion of the court from which the |
| 351 | execution issued, upon affidavit that the property to be sold is |
| 352 | subject to decay and will not sell for its full value if held |
| 353 | until date of sale. On or before the date of the first |
| 354 | publication or posting of the notice of sale, a copy of the |
| 355 | notice of sale shall be furnished by certified mail to the |
| 356 | attorney of record of the judgment debtor, or to the judgment |
| 357 | debtor at the judgment debtor's last known address if the |
| 358 | judgment debtor does not have an attorney of record. Such copy |
| 359 | of the notice of sale shall be mailed even though a default |
| 360 | judgment was entered. When levying upon personal property, a |
| 361 | notice of such levy and execution sale and a copy of the |
| 362 | affidavit required by s. 56.27(4) shall be sent by the sheriff |
| 363 | made by the levying creditor to the attorneys attorney of record |
| 364 | of all the judgment creditors, creditor or to all the judgment |
| 365 | creditors who do not have an attorney of record, creditor who |
| 366 | have has acquired a judgment lien as provided in s. 55.202 or s. |
| 367 | 55.204(3), and whose liens have not lapsed at the time of levy, |
| 368 | at the address listed in the judgment lien certificate, or, if |
| 369 | amended, in any amendment to the judgment lien certificate, and |
| 370 | to all secured creditors who have filed financing statements as |
| 371 | provided in part V of chapter 679 s. 679.401 in the name of the |
| 372 | judgment debtor reflecting a security interest in property of |
| 373 | the kind to be sold at the execution sale at the address listed |
| 374 | in the financing statement, or, if amended, in any amendment to |
| 375 | the financing statement. Such notice shall be made in the same |
| 376 | manner as notice is made to any judgment debtor under this |
| 377 | section. When levying upon real property, notice of such levy |
| 378 | and execution sale shall be made to the property owner of record |
| 379 | in the same manner as notice is made to any judgment debtor |
| 380 | pursuant to this section. When selling real or personal |
| 381 | property, the sale date shall not be earlier than 30 days after |
| 382 | the date of the first advertisement. |
| 383 | Section 11. Subsections (1), (2), and (4) of section |
| 384 | 56.27, Florida Statutes, are amended to read: |
| 385 | 56.27 Executions; payment of money collected.-- |
| 386 | (1) All money received under executions shall be paid, in |
| 387 | the order prescribed, to the following: the sheriff, for costs; |
| 388 | the levying creditor in the amount of $500 as liquidated |
| 389 | expenses; if the levy is upon real property, the first priority |
| 390 | lienholder under s. 55.10; and if the levy is upon personal |
| 391 | property, and the first priority lienholder under s. 55.202, s. |
| 392 | 55.204(3), or s. 55.208(2), as set forth in an affidavit |
| 393 | required by subsection (4), or his or her attorney, in |
| 394 | satisfaction of the judgment lien, provided that the judgment |
| 395 | lien has not lapsed at the time of the levy. The receipt of the |
| 396 | attorney shall be a release of the officer paying the money to |
| 397 | him or her. When the name of more than one attorney appears in |
| 398 | the court file, the money shall be paid to the attorney who |
| 399 | originally commenced the action or who made the original defense |
| 400 | unless the file shows that another attorney has been |
| 401 | substituted. |
| 402 | (2) When property sold under execution brings more than |
| 403 | the amount needed to satisfy the provisions of subsection (1), |
| 404 | the surplus shall be paid in the order of priority to any |
| 405 | judgment lienholders whose judgment liens have not lapsed. |
| 406 | Priority of liens on personal property shall be based on the |
| 407 | effective date of the judgment lien acquired under s. 55.202, s. |
| 408 | 55.204(3), or s. 55.208(2), as set forth in an affidavit |
| 409 | required under subsection (4). If there is a surplus after all |
| 410 | valid judgment liens and execution liens have been satisfied, |
| 411 | the surplus must be paid to the defendant. |
| 412 | (4) On or Before the date of the first publication or |
| 413 | posting of the notice of sale provided for under s. 56.21, the |
| 414 | levying creditor shall deliver to the sheriff file an affidavit |
| 415 | setting forth the following as to the judgment debtor: |
| 416 | (a) An attestation that the levying creditor has reviewed |
| 417 | the database or judgment lien records established in accordance |
| 418 | with ss. 55.201-55.209 and that the information contained in the |
| 419 | affidavit based on that review is true and correct; |
| 420 | (b) The information required under s. 55.203(1) and (2) |
| 421 | for each judgment lien certificate indexed under the name of the |
| 422 | judgment debtor as to each judgment creditor; the file number |
| 423 | assigned to the record of the original and, if any, the second |
| 424 | judgment lien; and the date of filing for each judgment lien |
| 425 | certificate under s. 55.202 or s. 55.204(3); and |
| 426 | (c) A statement that the levying creditor either does not |
| 427 | have any other levy in process or, if another levy is in |
| 428 | process, the levying creditor believes in good faith that the |
| 429 | total value of the property under execution does not exceed the |
| 430 | amount of outstanding judgments. |
| 431 | Section 12. Subsection (1) of section 56.29, Florida |
| 432 | Statutes, is amended to read: |
| 433 | 56.29 Proceedings supplementary.-- |
| 434 | (1) When any person or entity holds an unsatisfied |
| 435 | judgment execution and has delivered a writ of execution to any |
| 436 | sheriff, the judgment holder plaintiff in execution may file an |
| 437 | affidavit so stating, identifying the issuing court, the case |
| 438 | number, the unsatisfied amount of the judgment including accrued |
| 439 | costs and interest, and that the execution is valid and |
| 440 | outstanding, and thereupon the judgment holder is entitled to |
| 441 | these proceedings supplementary to execution. |
| 442 | Section 13. Subsections (2) and (4) of section 222.01, |
| 443 | Florida Statutes, are amended to read: |
| 444 | 222.01 Designation of homestead by owner before levy.-- |
| 445 | (2) When a certified copy of a judgment has been filed in |
| 446 | the public records of a county pursuant to chapter 55 s. 55.10, |
| 447 | a person who is entitled to the benefit of the provisions of the |
| 448 | State Constitution exempting real property as homestead and who |
| 449 | has a contract to sell or a commitment from a lender for a |
| 450 | mortgage on the homestead may file a notice of homestead in the |
| 451 | public records of the county in which the homestead property is |
| 452 | located in substantially the following form: |
| 453 |
|
| 454 | NOTICE OF HOMESTEAD |
| 455 |
|
| 456 | To:... (Name and address of judgment creditor as shown on |
| 457 | recorded judgment and name and address of any other person shown |
| 458 | in the recorded judgment to receive a copy of the Notice of |
| 459 | Homestead). ... |
| 460 |
|
| 461 | You are notified that the undersigned claims as homestead |
| 462 | exempt from levy and execution under Section 4, Article X of the |
| 463 | State Constitution, the following described property: |
| 464 |
|
| 465 | ... (Legal description) ... |
| 466 |
|
| 467 | The undersigned certifies, under oath, that he or she has |
| 468 | applied for and received the homestead tax exemption as to the |
| 469 | above-described property, that _____ is the tax identification |
| 470 | parcel number of this property, and that the undersigned has |
| 471 | resided on this property continuously and uninterruptedly from |
| 472 | ... (date) ... to the date of this Notice of Homestead. |
| 473 | Further, the undersigned will either convey or mortgage the |
| 474 | above-described property pursuant to the following: |
| 475 |
|
| 476 | ... (Describe the contract of sale or loan commitment by |
| 477 | date, names of parties, date of anticipated closing, and amount. |
| 478 | The name, address, and telephone number of the person conducting |
| 479 | the anticipated closing must be set forth.) ... |
| 480 |
|
| 481 | The undersigned also certifies, under oath, that the |
| 482 | judgment lien filed by you on ... (date) ... and recorded in |
| 483 | Official Records Book _____, Page _____, of the Public Records |
| 484 | of __________ County, Florida, does not constitute a valid lien |
| 485 | on the described property. |
| 486 |
|
| 487 | YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION 222.01 ET |
| 488 | SEQ., FLORIDA STATUTES, THAT WITHIN 45 DAYS AFTER THE MAILING OF |
| 489 | THIS NOTICE YOU MUST FILE AN ACTION IN THE CIRCUIT COURT OF |
| 490 | __________ COUNTY, FLORIDA, FOR A DECLARATORY JUDGMENT TO |
| 491 | DETERMINE THE CONSTITUTIONAL HOMESTEAD STATUS OF THE SUBJECT |
| 492 | PROPERTY OR TO FORECLOSE YOUR JUDGMENT LIEN ON THE PROPERTY AND |
| 493 | RECORD A LIS PENDENS IN THE PUBLIC RECORDS OF THE COUNTY WHERE |
| 494 | THE HOMESTEAD IS LOCATED. YOUR FAILURE TO SO ACT WILL RESULT IN |
| 495 | ANY BUYER OR LENDER, OR HIS OR HER SUCCESSORS AND ASSIGNS, UNDER |
| 496 | THE ABOVE-DESCRIBED CONTRACT OF SALE OR LOAN COMMITMENT TO TAKE |
| 497 | FREE AND CLEAR OF ANY JUDGMENT LIEN YOU MAY HAVE ON THE |
| 498 | PROPERTY. |
| 499 |
|
| 500 | This _____ day of _______________, 2_____. |
| 501 | ______________________________ |
| 502 | ... (Signature of Owner) ... |
| 503 |
|
| 504 | ______________________________ |
| 505 | ... (Printed Name of Owner) ... |
| 506 |
|
| 507 | ______________________________ |
| 508 | ... (Owner's Address) ... |
| 509 |
|
| 510 | Sworn to and subscribed before me by |
| 511 | ______________________________ who is personally known to me or |
| 512 | produced ______________________________ as identification, this |
| 513 | _____ day of _______________, 2_____. |
| 514 |
|
| 515 | ______________________________ |
| 516 | Notary Public |
| 517 |
|
| 518 | (4) A lien pursuant to chapter 55 s. 55.10 of any lienor |
| 519 | upon whom such notice is served, who fails to institute an |
| 520 | action for a declaratory judgment to determine the |
| 521 | constitutional homestead status of the property described in the |
| 522 | notice of homestead or to file an action to foreclose the |
| 523 | judgment lien, together with the filing of a lis pendens in the |
| 524 | public records of the county in which the homestead is located, |
| 525 | within 45 days after service of such notice shall be deemed as |
| 526 | not attaching to the property by virtue of its status as |
| 527 | homestead property as to the interest of any buyer or lender, or |
| 528 | his or her successors or assigns, who takes under the contract |
| 529 | of sale or loan commitment described above within 180 days after |
| 530 | the filing in the public records of the notice of homestead. |
| 531 | This subsection shall not act to prohibit a lien from attaching |
| 532 | to the real property described in the notice of homestead at |
| 533 | such time as the property loses its homestead status. |
| 534 | Section 14. Subsection (2) and paragraph (b) of subsection |
| 535 | (3) of section 319.27, Florida Statutes, are amended to read: |
| 536 | 319.27 Notice of lien on motor vehicles or mobile homes; |
| 537 | notation on certificate; recording of lien.-- |
| 538 | (2) No lien for purchase money or as security for a debt |
| 539 | in the form of a security agreement, retain title contract, |
| 540 | conditional bill of sale, chattel mortgage, or other similar |
| 541 | instrument or any other nonpossessory lien, including a lien for |
| 542 | child support, upon a motor vehicle or mobile home upon which a |
| 543 | Florida certificate of title has been issued shall be |
| 544 | enforceable in any of the courts of this state against creditors |
| 545 | or subsequent purchasers for a valuable consideration and |
| 546 | without notice, unless a sworn notice of such lien has been |
| 547 | filed in the department and such lien has been noted upon the |
| 548 | certificate of title of the motor vehicle or mobile home. Such |
| 549 | notice shall be effective as constructive notice when filed. The |
| 550 | No interest of a statutory nonpossessory lienor; the interest of |
| 551 | a nonpossessory execution, attachment, or equitable lienor; or |
| 552 | the interest of a lien creditor as defined in s. 679.1021(1)(zz) |
| 553 | 679.301(3), if nonpossessory, shall not be enforceable against |
| 554 | creditors or subsequent purchasers for a valuable consideration |
| 555 | unless such interest becomes a possessory lien or is noted upon |
| 556 | the certificate of title for the subject motor vehicle or mobile |
| 557 | home prior to the occurrence of the subsequent transaction. |
| 558 | Provided the provisions of this subsection relating to a |
| 559 | nonpossessory statutory lienor; a nonpossessory execution, |
| 560 | attachment, or equitable lienor; or the interest of a lien |
| 561 | creditor as defined in s. 679.1021(1)(zz) 679.301(3) shall not |
| 562 | apply to liens validly perfected prior to October 1, 1988. The |
| 563 | notice of lien shall provide the following information: |
| 564 | (a) The date of the lien if a security agreement, retain |
| 565 | title contract, conditional bill of sale, chattel mortgage, or |
| 566 | other similar instrument was executed prior to the filing of the |
| 567 | notice of lien; |
| 568 | (b) The name and address of the registered owner; |
| 569 | (c) A description of the motor vehicle or mobile home, |
| 570 | showing the make, type, and vehicle identification number; and |
| 571 | (d) The name and address of the lienholder. |
| 572 | (3) |
| 573 | (b) As applied to a determination of the respective rights |
| 574 | of a secured party under this chapter and a lien creditor as |
| 575 | defined by s. 679.1021(1)(zz) 679.301(3), or a nonpossessory |
| 576 | statutory lienor, a security interest under this chapter shall |
| 577 | be perfected upon the filing of the notice of lien with the |
| 578 | department, the county tax collector, or their agents. Provided, |
| 579 | however, the date of perfection of a security interest of such |
| 580 | secured party shall be the same date as the execution of the |
| 581 | security agreement or other similar instrument if the notice of |
| 582 | lien is filed in accordance with this subsection within 15 days |
| 583 | after the debtor receives possession of the motor vehicle or |
| 584 | mobile home and executes such security agreement or other |
| 585 | similar instrument. The date of filing of the notice of lien |
| 586 | shall be the date of its receipt by the department central |
| 587 | office in Tallahassee, if first filed there, or otherwise by the |
| 588 | office of the county tax collector, or their agents. |
| 589 | Section 15. Paragraph (zz) of subsection (1) of section |
| 590 | 679.1021, Florida Statutes, is amended to read: |
| 591 | 679.1021 Definitions and index of definitions.-- |
| 592 | (1) In this chapter, the term: |
| 593 | (zz) "Lien creditor" means: |
| 594 | 1. A creditor that has acquired a lien on the property |
| 595 | involved by attachment, levy, judgment lien certificate, or the |
| 596 | like; |
| 597 | 2. An assignee for benefit of creditors from the time of |
| 598 | assignment; |
| 599 | 3. A trustee in bankruptcy from the date of the filing of |
| 600 | the petition; or |
| 601 | 4. A receiver in equity from the time of appointment. |
| 602 | Section 16. Except as otherwise provided herein, this act |
| 603 | shall take effect upon becoming a law. |