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. |