Senate Bill sb0370

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    Florida Senate - 2005                                   SB 370

    By Senator Campbell





    32-220A-05

  1                      A bill to be entitled

  2         An act relating to judgment liens; amending s.

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

  4         satisfaction of judgments and decrees;

  5         eliminating the authority of judges to act

  6         under these provisions when there is no clerk

  7         of court; revising requirements of the clerk

  8         when accepting payment for satisfaction of a

  9         judgment and executing and recording a

10         satisfaction of judgment; providing a sample

11         form to be used by a clerk when recording a

12         satisfaction of judgment; revising provisions

13         relating to notification of satisfaction of

14         judgment to a judgment holder; amending s.

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

16         a judgment lien; authorizing the court to file

17         a judgment lien certificate before a judgment

18         becomes final under certain circumstances;

19         providing that an improperly filed certificate

20         is of no effect; amending s. 55.204, F.S.;

21         revising provisions relating to the

22         continuation of judgment liens; revising

23         provisions requiring the Department of State to

24         maintain certain files and information;

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

26         authorizing certain creditors to bring certain

27         actions against the property of a debtor;

28         amending ss. 55.602, 55.603, 55.604, 55.605,

29         and 55.606, F.S.; revising provisions relating

30         to foreign judgments to apply only to

31         out-of-country foreign judgments; amending s.

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 1         56.21, F.S.; revising requirements for notices

 2         of a levy and execution sale; amending s.

 3         56.27, F.S.; clarifying provisions relating to

 4         payment of money received under execution;

 5         amending s. 56.29, F.S.; revising requirements

 6         regarding supplementary proceedings for

 7         unsatisfied judgments; amending s. 77.03, F.S.;

 8         deleting the provision that a garnishing

 9         creditor must believe that execution would be

10         unavailing; amending s. 77.041, F.S.;

11         increasing the time period during which a

12         garnishing creditor may object to the debtor's

13         claim of exemption and request a hearing;

14         amending s. 222.01, F.S.; revising provisions

15         relating to the designation of homestead

16         property by the owner prior to levy to include

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

18         correcting a cross-reference; amending s.

19         679.1021, F.S.; redefining the term "lien

20         creditor";  amending s. 701.02, F.S.; providing

21         that chapters 670-680 of the Uniform Commercial

22         Code govern the attachment and perfection of a

23         security interest in a mortgage upon real

24         property and in a promissory note or other

25         right to payment or performance secured by that

26         mortgage; providing that the assignment of such

27         a mortgage need not be recorded under s.

28         701.02, F.S., in order for a security interest

29         in the mortgage to attach or be perfected under

30         the Uniform Commercial Code; providing

31         effective dates.

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

 2  

 3         Section 1.  Section 55.141, Florida Statutes, is

 4  amended to read:

 5         55.141  Satisfaction of judgments and decrees; duties

 6  of clerk and judge.--

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

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

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

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

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

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

13  registry of the court where rendered.

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

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

16  therefor and shall record in the official records a

17  satisfaction of judgment, provided by the judgment holder,

18  upon payment of the recording charge prescribed in s.

19  28.24(12) plus the necessary costs of mailing to the clerk or

20  judge. Upon payment of the amount required in subsection (1)

21  and the recording charge required by this subsection and

22  execution and recordation of the satisfaction by the clerk,

23  any lien created by the judgment is satisfied and discharged.

24  The clerk or judge shall formally notify the owner of record

25  of such judgment or decree, if such person and his or her

26  address are known to the clerk or judge receiving such

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

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

29  the payment so received, less his or her service charge for

30  providing a receipt upon the court issuing a writ of execution

31  on such judgment or decree, if any has been issued, and less

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 1  his or her service charge for receiving into and paying out of

 2  the registry of the court such payment, together with the

 3  service charge of the clerk for receiving into and paying such

 4  money out of the registry of the court.

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

 6  must be substantially in the following form:

 7  

 8                Satisfaction of Judgment by Clerk

 9  

10  The undersigned Clerk acknowledges on this      day of

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

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

13  amount of the judgment; $     interest accruing on the

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

15  of any execution; and $     for recording.

16  

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

18  to satisfy the lien and to discharge that certain final

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

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

21  judgment or in recorded affidavit pursuant to section

22  55.10(1), Florida Statutes,) against (name of judgment debtor)

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

24  public records of      County, Florida.

25  

26  Upon the execution of this satisfaction, said judgment is

27  satisfied and discharged.

28  

29  If an address for the judgment holder was provided under

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

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

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 1  address by certified mail with return receipt requested or by

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

 3  continental United States.

 4  

 5  Clerk of Court

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

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

 8  satisfaction to the judgment holder at that address by

 9  certified mail with return receipt or by registered mail if

10  the notice is to be sent outside the continental United

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

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

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

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

15  of the satisfaction is not dependent upon the delivery of

16  notice by the clerk.

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

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

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

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

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

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

23  satisfaction of judgment; and, if the clerk incurred expenses

24  in locating the judgment holder, less the reasonable expenses

25  so incurred.

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

27  preceding subsections of this section provided shall

28  constitute full payment and satisfaction thereof and any lien

29  created by such judgment or decree shall thereupon be

30  satisfied and discharged.

31  

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

 2  Florida Statutes, are amended to read:

 3         55.202  Judgments, orders, and decrees; lien on

 4  personal property.--

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

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

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

 8  money, negotiable instruments, and mortgages.

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

10  lien certificate in accordance with s. 55.203 with the

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

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

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

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

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

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

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

18  lien certificate not filed in compliance with this subsection

19  is permanently void and of no effect.

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

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

22  acquired by filing the judgment lien certificate information

23  or warrant with the Department of State in accordance with

24  subsection (5).

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

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

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

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

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

30  property, priority among competing judgment liens is

31  determined in order of filing date and time.

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

 2  creditor may file only one effective judgment lien certificate

 3  based upon a particular judgment.

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

 5  priority of a judgment lien acquired in accordance with this

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

 7  the judgment lien certificate is filed.

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

 9  Florida Statutes, are amended to read:

10         55.204  Duration and continuation of judgment lien;

11  destruction of records.--

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

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

14  Such judgment lien will continue only if:

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

16  described with sufficient particularity in the instructions

17  for levy to permit the sheriff to act;

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

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

20  permit the sheriff to act; and

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

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

23  instruction for levy. Subsequent removal of the property does

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

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

26  circumstances have prevented levy.

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

28  Department of State shall maintain each judgment lien file and

29  all information contained therein for a minimum of 1 year

30  after the judgment lien lapses in accordance with this

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

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 1  shall maintain both files and all information contained in

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

 3  lien lapses.

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

 5  Statutes, is amended to read:

 6         55.205  Effect of judgment lien.--

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

 8  the right to proceed against the property of the debtor

 9  through writ of execution, garnishment, or other judicial

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

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

12  nevertheless proceed against the judgment debtor's property

13  through any appropriate other judicial process. Such judgment

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

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

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

17  to the claims and interest of priority judgment creditors.

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

19  Statutes, is amended to read:

20         55.602  Definitions.--As used in this act, the term:

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

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

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

24  other penalty.

25         Section 6.  Section 55.603, Florida Statutes, is

26  amended to read:

27         55.603  Applicability.--This act applies to any

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

29  and enforceable where rendered, even though an appeal

30  therefrom is pending or is subject to appeal.

31  

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 1         Section 7.  Section 55.604, Florida Statutes, is

 2  amended to read:

 3         55.604  Recognition and enforcement.--Except as

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

 5  meeting the requirements of s. 55.603 is conclusive between

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

 7  a sum of money. Procedures for recognition and enforceability

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

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

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

11  in the county or counties where enforcement is sought.

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

13  a foreign judgment, the judgment creditor shall make and

14  record with the clerk of the circuit court an affidavit

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

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

17  the judgment creditor.

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

19  foreign judgment and the affidavit, the clerk shall mail

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

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

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

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

24  shall include the name and address of the judgment creditor

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

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

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

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

29  clerk to mail notice of recording will not affect the

30  enforcement proceedings if proof of mailing by the judgment

31  creditor has been recorded.

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

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

 3  clerk of the court specifying the grounds for nonrecognition

 4  or nonenforceability under this act.

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

 6  proper notice, the circuit court shall have jurisdiction to

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

 8  appropriate order granting or denying recognition in

 9  accordance with the terms of this act.

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

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

12  shall record a certificate stating that no objection has been

13  filed.

14         (5)  Upon entry of an order recognizing the

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

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

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

18  judgment of a court of this state.

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

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

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

22  other county of this state without further notice or

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

24  the judgment of a court of this state.

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

26  created only when there has been recorded in the official

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

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

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

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

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

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 1  released or satisfied by the person designated pursuant to

 2  paragraph (1).

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

 4  only when a judgment lien certificate is filed in accordance

 5  with s. 55.203 with the Department of State.

 6         Section 8.  Section 55.605, Florida Statutes, is

 7  amended to read:

 8         55.605  Grounds for nonrecognition.--

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

10  conclusive if:

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

12  does not provide impartial tribunals or procedures compatible

13  with the requirements of due process of law.

14         (b)  The foreign court did not have personal

15  jurisdiction over the defendant.

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

17  the subject matter.

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

19  recognized if:

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

21  court did not receive notice of the proceedings in sufficient

22  time to enable him or her to defend.

23         (b)  The judgment was obtained by fraud.

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

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

26  this state.

27         (d)  The judgment conflicts with another final and

28  conclusive order.

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

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

31  

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 1  question was to be settled otherwise than by proceedings in

 2  that court.

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

 4  service, the foreign court was a seriously inconvenient forum

 5  for the trial of the action.

 6         (g)  The foreign jurisdiction where judgment was

 7  rendered would not give recognition to a similar judgment

 8  rendered in this state.

 9         Section 9.  Section 55.606, Florida Statutes, is

10  amended to read:

11         55.606  Personal jurisdiction.--The out-of-country

12  foreign judgment shall not be refused recognition for lack of

13  personal jurisdiction if:

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

15  state;

16         (2)  The defendant voluntarily appeared in the

17  proceedings, other than for the purpose of protecting property

18  seized or threatened with seizure in the proceedings or of

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

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

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

22  foreign court with respect to the subject matter involved;

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

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

25  corporate, had its principal place of business, was

26  incorporated, or had otherwise acquired corporate status, in

27  the foreign state;

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

29  state and the proceedings in the foreign court involved a

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

31  

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 1  done by the defendant through that office in the foreign

 2  state; or

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

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

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

 6         Section 10.  Effective October 1, 2005, section 56.21,

 7  Florida Statutes, is amended to read:

 8         56.21  Execution sales; notice.--Notice of all sales

 9  under execution shall be given by advertisement once each week

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

25  made by the levying creditor to the attorneys attorney of

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

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

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

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

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

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

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

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

 3  679.401 in the name of the judgment debtor reflecting a

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

 5  execution sale at the address listed in the financing

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

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

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

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

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

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

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

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

14  first advertisement.

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

16  56.27, Florida Statutes, are amended to read:

17         56.27  Executions; payment of money collected.--

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

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

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

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

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

23  upon personal property, and the first priority lienholder

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

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

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

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

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

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

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

31  the attorney who originally commenced the action or who made

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 1  the original defense unless the file shows that another

 2  attorney has been substituted.

 3         (2)  When property sold under execution brings more

 4  than the amount needed to satisfy the provisions of subsection

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

 6  judgment lienholders whose judgment liens have not lapsed.

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

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

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

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

11  valid judgment liens and execution liens have been satisfied,

12  the surplus must be paid to the defendant.

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

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

15  levying creditor shall deliver to the sheriff file an

16  affidavit setting forth the following as to the judgment

17  debtor:

18         (a)  An attestation that the levying creditor has

19  reviewed the database or judgment lien records established in

20  accordance with ss. 55.201-55.209 and that the information

21  contained in the affidavit based on that review is true and

22  correct;

23         (b)  The information required under s. 55.203(1) and

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

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

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

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

28  lien certificate under s. 55.202 or s. 55.204(3); and

29         (c)  A statement that the levying creditor either does

30  not have any other levy in process or, if another levy is in

31  process, the levying creditor believes in good faith that the

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 1  total value of the property under execution does not exceed

 2  the amount of outstanding judgments.

 3         Section 12.  Subsection (1) of section 56.29, Florida

 4  Statutes, is amended to read:

 5         56.29  Proceedings supplementary.--

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

 7  judgment execution and has delivered a writ of execution to

 8  any sheriff, the judgment holder plaintiff in execution may

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

10  the case number, and the unsatisfied amount of the judgment,

11  including accrued costs and interest, and stating that the

12  execution is valid and outstanding, and thereupon the judgment

13  holder is entitled to these proceedings supplementary to

14  execution.

15         Section 13.  Section 77.03, Florida Statutes, is

16  amended to read:

17         77.03  Issuance of writ after judgment.--After judgment

18  has been obtained against defendant but before the writ of

19  garnishment is issued, the plaintiff, the plaintiff's agent or

20  attorney, shall file a motion (which shall not be verified or

21  negative defendant's exemptions) stating the amount of the

22  judgment and that movant does not believe that defendant has

23  in his or her possession visible property on which a levy can

24  be made sufficient to satisfy the judgment.  The motion may be

25  filed and the writ issued either before or after the return of

26  execution.

27         Section 14.  Subsections (1) and (3) of section 77.041,

28  Florida Statutes, are amended to read:

29         77.041  Notice to individual defendant for claim of

30  exemption from garnishment; procedure for hearing.--

31  

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 1         (1)  Upon application for a writ of garnishment by a

 2  plaintiff, if the defendant is an individual, the clerk of the

 3  court shall attach to the writ the following "Notice to

 4  Defendant":

 5  

 6               NOTICE TO DEFENDANT OF RIGHT AGAINST

 7                   GARNISHMENT OF WAGES, MONEY,

 8                        AND OTHER PROPERTY

 9  

10         The Writ of Garnishment delivered to you with this

11  Notice means that wages, money, and other property belonging

12  to you have been garnished to pay a court judgment against

13  you. HOWEVER, YOU MAY BE ABLE TO KEEP OR RECOVER YOUR WAGES,

14  MONEY, OR PROPERTY. READ THIS NOTICE CAREFULLY.

15         State and federal laws provide that certain wages,

16  money, and property, even if deposited in a bank, savings and

17  loan, or credit union, may not be taken to pay certain types

18  of court judgments. Such wages, money, and property are exempt

19  from garnishment. The major exemptions are listed below on the

20  form for Claim of Exemption and Request for Hearing. This list

21  does not include all possible exemptions. You should consult a

22  lawyer for specific advice.

23         TO KEEP YOUR WAGES, MONEY, AND OTHER PROPERTY

24         FROM BEING GARNISHED, OR TO GET BACK ANYTHING

25         ALREADY TAKEN, YOU MUST COMPLETE A FORM FOR

26         CLAIM OF EXEMPTION AND REQUEST FOR HEARING AS

27         SET FORTH BELOW AND HAVE THE FORM NOTARIZED.

28         YOU MUST FILE THE FORM WITH THE CLERK'S OFFICE

29         WITHIN 20 DAYS AFTER THE DATE YOU RECEIVE THIS

30         NOTICE OR YOU MAY LOSE IMPORTANT RIGHTS. YOU

31         MUST ALSO MAIL OR DELIVER A COPY OF THIS FORM

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 1         TO THE PLAINTIFF AND THE GARNISHEE AT THE

 2         ADDRESSES LISTED ON THE WRIT OF GARNISHMENT.

 3         If you request a hearing, it will be held as soon as

 4  possible after your request is received by the court. The

 5  plaintiff must file any objection within 3 2 business days if

 6  you hand delivered to the plaintiff a copy of the form for

 7  Claim of Exemption and Request for Hearing or, alternatively,

 8  7 days if you mailed a copy of the form for claim and request

 9  to the plaintiff. If the plaintiff files an objection to your

10  Claim of Exemption and Request for Hearing, the clerk will

11  notify you and the other parties of the time and date of the

12  hearing. You may attend the hearing with or without an

13  attorney. If the plaintiff fails to file an objection, no

14  hearing is required, the writ of garnishment will be dissolved

15  and your wages, money, or property will be released.

16         YOU SHOULD FILE THE FORM FOR CLAIM OF EXEMPTION

17         IMMEDIATELY TO KEEP YOUR WAGES, MONEY, OR

18         PROPERTY FROM BEING APPLIED TO THE COURT

19         JUDGMENT. THE CLERK CANNOT GIVE YOU LEGAL

20         ADVICE. IF YOU NEED LEGAL ASSISTANCE YOU SHOULD

21         SEE A LAWYER. IF YOU CANNOT AFFORD A PRIVATE

22         LAWYER, LEGAL SERVICES MAY BE AVAILABLE.

23         CONTACT YOUR LOCAL BAR ASSOCIATION OR ASK THE

24         CLERK'S OFFICE ABOUT ANY LEGAL SERVICES PROGRAM

25         IN YOUR AREA.

26  

27                  CLAIM OF EXEMPTION AND

28                   REQUEST FOR HEARING

29  

30  I claim exemptions from garnishment under the following

31  categories as checked:

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 1  ....     1.  Head of family wages. (You must check a.

 2           or b. below.)

 3  ....     a.  I provide more than one-half of the

 4           support for a child or other dependent and

 5           have net earnings of $500 or less per week.

 6  ....     b.  I provide more than one-half of the

 7           support for a child or other dependent, have

 8           net earnings of more than $500 per week, but

 9           have not agreed in writing to have my wages

10           garnished.

11  ....     2.  Social Security benefits.

12  ....     3.  Supplemental Security Income benefits.

13  ....     4.  Public assistance (welfare).

14  ....     5.  Workers' Compensation.

15  ....     6.  Unemployment Compensation.

16  ....     7.  Veterans' benefits.

17  ....     8.  Retirement or profit-sharing benefits or

18           pension money.

19  ....     9.  Life insurance benefits or cash surrender

20           value of a life insurance policy or proceeds

21           of annuity contract.

22  ....     10.  Disability income benefits.

23  ....     11.  Prepaid College Trust Fund or Medical

24           Savings Account.

25  ....     12.  Other exemptions as provided by law.

26           ................................(explain)

27  

28  I request a hearing to decide the validity of my claim. Notice

29  of the hearing should be given to me at:

30  

31  Address: ................................

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 1  Telephone number:........................

 2  

 3  The statements made in this request are true to the best of my

 4  knowledge and belief.

 5  

 6  ................................

 7  Defendant's signature

 8  Date................................

 9  

10  STATE OF FLORIDA

11  COUNTY OF

12  

13  Sworn and subscribed to before me this ........ day of

14  ...(month and year)..., by ...(name of person making

15  statement)...

16  Notary Public/Deputy Clerk

17  Personally Known ........OR Produced Identification....

18  Type of Identification Produced....................

19  

20         (3)  Upon the filing by a defendant of a claim of

21  exemption and request for hearing, a hearing will be held as

22  soon as is practicable to determine the validity of the

23  claimed exemptions. If the plaintiff does not file a sworn

24  written statement that contests the defendant's claim of

25  exemption within 3 2 business days after hand delivering the

26  claim and request or, alternatively, 8 7 business days, if the

27  claim and request were served by mail, no hearing is required

28  and the clerk must automatically dissolve the writ and notify

29  the parties of the dissolution by mail.

30         Section 15.  Subsections (2) and (4) of section 222.01,

31  Florida Statutes, are amended to read:

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 1         222.01  Designation of homestead by owner before

 2  levy.--

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

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

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

 6  provisions of the State Constitution exempting real property

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

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

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

10  which the homestead property is located in substantially the

11  following form:

12  

13                       NOTICE OF HOMESTEAD

14  

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

16         shown on recorded judgment and name and address

17         of any other person shown in the recorded

18         judgment to receive a copy of the Notice of

19         Homestead)....

20  

21         You are notified that the undersigned claims as

22         homestead exempt from levy and execution under

23         Section 4, Article X of the State Constitution,

24         the following described property:

25  

26                ...(Legal description)...

27  

28         The undersigned certifies, under oath, that he

29         or she has applied for and received the

30         homestead tax exemption as to the

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

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 1         identification parcel number of this property,

 2         and that the undersigned has resided on this

 3         property continuously and uninterruptedly from

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

 5         Homestead. Further, the undersigned will either

 6         convey or mortgage the above-described property

 7         pursuant to the following:

 8  

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

10         commitment by date, names of parties, date of

11         anticipated closing, and amount. The name,

12         address, and telephone number of the person

13         conducting the anticipated closing must be set

14         forth.)...

15  

16         The undersigned also certifies, under oath,

17         that the judgment lien filed by you on

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

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

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

21         valid lien on the described property.

22  

23         YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION

24         222.01 ET SEQ., FLORIDA STATUTES, THAT WITHIN

25         45 DAYS AFTER THE MAILING OF THIS NOTICE YOU

26         MUST FILE AN ACTION IN THE CIRCUIT COURT OF

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

28         JUDGMENT TO DETERMINE THE CONSTITUTIONAL

29         HOMESTEAD STATUS OF THE SUBJECT PROPERTY OR TO

30         FORECLOSE YOUR JUDGMENT LIEN ON THE PROPERTY

31         AND RECORD A LIS PENDENS IN THE PUBLIC RECORDS

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 1         OF THE COUNTY WHERE THE HOMESTEAD IS LOCATED.

 2         YOUR FAILURE TO SO ACT WILL RESULT IN ANY BUYER

 3         OR LENDER, OR HIS OR HER SUCCESSORS AND

 4         ASSIGNS, UNDER THE ABOVE-DESCRIBED CONTRACT OF

 5         SALE OR LOAN COMMITMENT TO TAKE FREE AND CLEAR

 6         OF ANY JUDGMENT LIEN YOU MAY HAVE ON THE

 7         PROPERTY.

 8  

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

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

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

12  

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

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

15  

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

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

18  

19         Sworn to and subscribed before me by

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

21         known to me or produced

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

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

24  

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

26                                           Notary Public

27  

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

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

30  an action for a declaratory judgment to determine the

31  constitutional homestead status of the property described in

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

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

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

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

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

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

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

 8  under the contract of sale or loan commitment described above

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

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

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

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

13  homestead status.

14         Section 16.  Subsection (2) and paragraph (b) of

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

16  amended to read:

17         319.27  Notice of lien on motor vehicles or mobile

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

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

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

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

22  similar instrument or any other nonpossessory lien, including

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

24  upon which a Florida certificate of title has been issued

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

26  against creditors or subsequent purchasers for a valuable

27  consideration and without notice, unless a sworn notice of

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

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

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

31  notice when filed. The No interest of a statutory

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 1  nonpossessory lienor; the interest of a nonpossessory

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

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

 4  if nonpossessory, shall not be enforceable against creditors

 5  or subsequent purchasers for a valuable consideration unless

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

 7  certificate of title for the subject motor vehicle or mobile

 8  home prior to the occurrence of the subsequent transaction.

 9  Provided the provisions of this subsection relating to a

10  nonpossessory statutory lienor; a nonpossessory execution,

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

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

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

14  notice of lien shall provide the following information:

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

16  retain title contract, conditional bill of sale, chattel

17  mortgage, or other similar instrument was executed prior to

18  the filing of the notice of lien;

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

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

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

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

23         (3)

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

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

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

27  nonpossessory statutory lienor, a security interest under this

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

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

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

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

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 1  as the execution of the security agreement or other similar

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

 3  this subsection within 15 days after the debtor receives

 4  possession of the motor vehicle or mobile home and executes

 5  such security agreement or other similar instrument. The date

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

 7  receipt by the department central office in Tallahassee, if

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

 9  tax collector, or their agents.

10         Section 17.  Paragraph (zz) of subsection (1) of

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

12         679.1021  Definitions and index of definitions.--

13         (1)  In this chapter, the term:

14         (zz)  "Lien creditor" means:

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

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

17  the like;

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

19  of assignment;

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

21  of the petition; or

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

23         Section 18.  Section 701.02, Florida Statutes, is

24  amended to read:

25         701.02  Assignment not effectual against creditors

26  unless recorded and indicated in title of document;

27  applicability.--

28         (1)  An No assignment of a mortgage upon real property

29  or of any interest therein, is not shall be good or effectual

30  in law or equity, against creditors or subsequent purchasers,

31  for a valuable consideration, and without notice, unless the

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 1  assignment is contained in a document that which, in its

 2  title, indicates an assignment of mortgage and is recorded

 3  according to law.

 4         (2)  This section also applies The provisions of this

 5  section shall also extend to assignments of mortgages

 6  resulting from transfers of all or any part or parts of the

 7  debt, note or notes secured by mortgage, and none of same is

 8  shall be effectual in law or in equity against creditors or

 9  subsequent purchasers for a valuable consideration without

10  notice, unless a duly executed assignment be recorded

11  according to law.

12         (3)  Any assignment of a mortgage, duly executed and

13  recorded according to law, purporting to assign the principal

14  of the mortgage debt or the unpaid balance of such principal,

15  shall, as against subsequent purchasers and creditors for

16  value and without notice, be held and deemed to assign any and

17  all accrued and unpaid interest secured by such mortgage,

18  unless such interest is shall be specifically and

19  affirmatively reserved in such an assignment by the assignor,

20  and a no reservation of such interest or any part thereof may

21  not shall be implied.

22         (4)  Notwithstanding subsections (1), (2), and (3)

23  governing the assignment of mortgages, chapters 670-680 of the

24  Uniform Commercial Code govern the attachment and perfection

25  of a security interest in a mortgage upon real property and in

26  a promissory note or other right to payment or performance

27  secured by that mortgage. The assignment of such a mortgage

28  need not be recorded under this section for purposes of

29  attachment or perfection of a security interest in the

30  mortgage under the Uniform Commercial Code.

31  

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 1         Section 19.  Except as otherwise expressly provided in

 2  this act, this act shall take effect upon becoming a law.

 3  

 4            *****************************************

 5                          SENATE SUMMARY

 6    Amends provisions relating to judgment liens. Revises
      provisions relating to the satisfaction of judgments and
 7    decrees. Eliminates the authority of judges to act under
      certain provisions when there is no clerk of court.
 8    Revises requirements relating to the clerk when accepting
      payment for satisfaction of a judgment and executing and
 9    recording a satisfaction of judgment. Provides a sample
      form to be used by a clerk for recording a satisfaction
10    of judgment. Revises provisions relating to the
      notification of satisfaction of judgment to a judgment
11    holder. Revises procedures for acquiring a judgment lien.
      Provides court authorization to file a judgment lien
12    certificate before a judgment becomes final under certain
      circumstances. Revises provisions relating to
13    continuations of judgment liens. Revises provisions
      requiring the Department of State to maintain certain
14    files and information. Deletes a provision authorizing
      certain creditors to bring certain actions against the
15    property of a debtor. Revises provisions relating to
      foreign judgments to apply only to out-of-country foreign
16    judgments. Revises requirements for notices of a levy and
      execution sale. Clarifies provisions relating to payment
17    of money received under execution. Revises requirements
      regarding supplementary proceedings for unsatisfied
18    judgments. Deletes a provision stating that garnishing
      creditor must believe that execution would be unavailing.
19    Increases the time period during which a garnishing
      creditor may object to the debtor's claim of exemption
20    and request a hearing. Revises provisions relating to the
      designation of homestead property by the owner prior to
21    levy to include foreign judgments. Redefines the term
      "lien creditor." Provides that chapters 670-680 of the
22    Uniform Commercial Code govern the attachment and
      perfection of a security interest in a mortgage upon real
23    property and in a promissory note or other right to
      payment or performance secured by that mortgage. Provides
24    that the assignment of such a mortgage need not be
      recorded under s. 701.02, F.S., in order for a security
25    interest in the mortgage to attach or be perfected under
      the Uniform Commercial Code.
26  

27  

28  

29  

30  

31  

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