Senate Bill sb0370c1

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    Florida Senate - 2005                            CS for SB 370

    By the Committee on Judiciary; and Senator Campbell





    590-838-05

  1                      A bill to be entitled

  2         An act relating to procedures for the

  3         satisfaction of debts; amending s. 55.141,

  4         F.S.; revising provisions relating to

  5         satisfaction of judgments and decrees;

  6         eliminating the authority of judges to act

  7         under these provisions when there is no clerk

  8         of court; revising requirements of the clerk

  9         when accepting payment for satisfaction of a

10         judgment and executing and recording a

11         satisfaction of judgment; providing a sample

12         form to be used by a clerk when recording a

13         satisfaction of judgment; revising provisions

14         relating to notification of satisfaction of

15         judgment to a judgment holder; amending s.

16         55.202, F.S.; revising procedures for acquiring

17         a judgment lien; authorizing the court to file

18         a judgment lien certificate before a judgment

19         becomes final under certain circumstances;

20         providing that an improperly filed certificate

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

22         revising provisions relating to the

23         continuation of judgment liens; revising

24         provisions requiring the Department of State to

25         maintain certain files and information;

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

27         authorizing certain creditors to bring certain

28         actions against the property of a debtor;

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

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

31         to foreign judgments to apply only to

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

 2         56.21, F.S.; revising requirements for notices

 3         of a levy and execution sale; amending s.

 4         56.27, F.S.; clarifying provisions relating to

 5         payment of money received under execution;

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

 7         regarding supplementary proceedings for

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

 9         deleting the provision that a garnishing

10         creditor must believe that execution would be

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

12         increasing the time period during which a

13         garnishing creditor may object to the debtor's

14         claim of exemption and request a hearing;

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

16         relating to the designation of homestead

17         property by the owner prior to levy to include

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

19         correcting a cross-reference; amending s.

20         679.1021, F.S.; redefining the term "lien

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

22         that chapters 670-680 of the Uniform Commercial

23         Code govern the attachment and perfection of a

24         security interest in a mortgage upon real

25         property and in a promissory note or other

26         right to payment or performance secured by that

27         mortgage; providing that the assignment of such

28         a mortgage need not be recorded under s.

29         701.02, F.S., in order for a security interest

30         in the mortgage to attach or be perfected under

31         the Uniform Commercial Code; providing that a

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 1         creditor or subsequent purchaser of real

 2         property or of any interest therein may rely on

 3         a full or partial release, discharge, consent,

 4         joinder, subordination, satisfaction, or

 5         assignment of a mortgage upon the property

 6         which was made by the mortgagee of record,

 7         without regard to the filing of certain Uniform

 8         Commercial Code financing statements; providing

 9         that the filing of such a financing statement

10         does not constitute notice for the purposes of

11         s. 701.02, F.S.; defining the term "mortgagee

12         of record"; providing effective dates.

13  

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

15  

16         Section 1.  Section 55.141, Florida Statutes, is

17  amended to read:

18         55.141  Satisfaction of judgments and decrees; duties

19  of clerk and judge.--

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

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

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

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

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

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

26  registry of the court where rendered.

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

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

29  therefor and shall record in the official records a

30  satisfaction of judgment, provided by the judgment holder,

31  upon payment of the recording charge prescribed in s.

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 1  28.24(12) plus the necessary costs of mailing to the clerk or

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

 3  and the recording charge required by this subsection and

 4  execution and recordation of the satisfaction by the clerk,

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

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

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

 8  address are known to the clerk or judge receiving such

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

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

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

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

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

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

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

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

17  money out of the registry of the court.

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

19  must be substantially in the following form:

20  

21                Satisfaction of Judgment by Clerk

22  

23  The undersigned Clerk acknowledges on this      day of

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

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

26  amount of the judgment; $     interest accruing on the

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

28  of any execution; and $     for recording.

29  

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

31  to satisfy the lien and to discharge that certain final

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

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

 3  judgment or in recorded affidavit pursuant to section

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

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

 6  public records of      County, Florida.

 7  

 8  Upon the execution of this satisfaction, said judgment is

 9  satisfied and discharged.

10  

11  If an address for the judgment holder was provided under

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

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

14  address by certified mail with return receipt requested or by

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

16  continental United States.

17  

18  Clerk of Court

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

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

21  satisfaction to the judgment holder at that address by

22  certified mail with return receipt or by registered mail if

23  the notice is to be sent outside the continental United

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

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

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

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

28  of the satisfaction is not dependent upon the delivery of

29  notice by the clerk.

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

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

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

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

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

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

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

 6  in locating the judgment holder, less the reasonable expenses

 7  so incurred.

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

 9  preceding subsections of this section provided shall

10  constitute full payment and satisfaction thereof and any lien

11  created by such judgment or decree shall thereupon be

12  satisfied and discharged.

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

14  Florida Statutes, are amended to read:

15         55.202  Judgments, orders, and decrees; lien on

16  personal property.--

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

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

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

20  money, negotiable instruments, and mortgages.

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

22  lien certificate in accordance with s. 55.203 with the

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

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

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

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

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

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

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

30  lien certificate not filed in compliance with this subsection

31  is permanently void and of no effect.

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

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

 3  acquired by filing the judgment lien certificate information

 4  or warrant with the Department of State in accordance with

 5  subsection (5).

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

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

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

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

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

11  property, priority among competing judgment liens is

12  determined in order of filing date and time.

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

14  creditor may file only one effective judgment lien certificate

15  based upon a particular judgment.

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

17  priority of a judgment lien acquired in accordance with this

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

19  the judgment lien certificate is filed.

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

21  Florida Statutes, are amended to read:

22         55.204  Duration and continuation of judgment lien;

23  destruction of records.--

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

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

26  Such judgment lien will continue only if:

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

28  described with sufficient particularity in the instructions

29  for levy to permit the sheriff to act;

30  

31  

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

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

 3  permit the sheriff to act; and

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

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

 6  instruction for levy. Subsequent removal of the property does

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

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

 9  circumstances have prevented levy.

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

11  Department of State shall maintain each judgment lien file and

12  all information contained therein for a minimum of 1 year

13  after the judgment lien lapses in accordance with this

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

15  shall maintain both files and all information contained in

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

17  lien lapses.

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

19  Statutes, is amended to read:

20         55.205  Effect of judgment lien.--

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

22  the right to proceed against the property of the debtor

23  through writ of execution, garnishment, or other judicial

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

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

26  nevertheless proceed against the judgment debtor's property

27  through any appropriate other judicial process. Such judgment

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

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

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

31  to the claims and interest of priority judgment creditors.

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

 2  Statutes, is amended to read:

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

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

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

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

 7  other penalty.

 8         Section 6.  Section 55.603, Florida Statutes, is

 9  amended to read:

10         55.603  Applicability.--This act applies to any

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

12  and enforceable where rendered, even though an appeal

13  therefrom is pending or is subject to appeal.

14         Section 7.  Section 55.604, Florida Statutes, is

15  amended to read:

16         55.604  Recognition and enforcement.--Except as

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

18  meeting the requirements of s. 55.603 is conclusive between

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

20  a sum of money. Procedures for recognition and enforceability

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

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

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

24  in the county or counties where enforcement is sought.

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

26  a foreign judgment, the judgment creditor shall make and

27  record with the clerk of the circuit court an affidavit

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

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

30  the judgment creditor.

31  

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

 2  foreign judgment and the affidavit, the clerk shall mail

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

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

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

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

 7  shall include the name and address of the judgment creditor

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

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

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

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

12  clerk to mail notice of recording will not affect the

13  enforcement proceedings if proof of mailing by the judgment

14  creditor has been recorded.

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

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

17  clerk of the court specifying the grounds for nonrecognition

18  or nonenforceability under this act.

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

20  proper notice, the circuit court shall have jurisdiction to

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

22  appropriate order granting or denying recognition in

23  accordance with the terms of this act.

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

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

26  shall record a certificate stating that no objection has been

27  filed.

28         (5)  Upon entry of an order recognizing the

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

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

31  

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

 2  judgment of a court of this state.

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

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

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

 6  other county of this state without further notice or

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

 8  the judgment of a court of this state.

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

10  created only when there has been recorded in the official

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

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

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

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

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

16  released or satisfied by the person designated pursuant to

17  paragraph (1).

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

19  only when a judgment lien certificate is filed in accordance

20  with s. 55.203 with the Department of State.

21         Section 8.  Section 55.605, Florida Statutes, is

22  amended to read:

23         55.605  Grounds for nonrecognition.--

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

25  conclusive if:

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

27  does not provide impartial tribunals or procedures compatible

28  with the requirements of due process of law.

29         (b)  The foreign court did not have personal

30  jurisdiction over the defendant.

31  

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

 2  the subject matter.

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

 4  recognized if:

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

 6  court did not receive notice of the proceedings in sufficient

 7  time to enable him or her to defend.

 8         (b)  The judgment was obtained by fraud.

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

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

11  this state.

12         (d)  The judgment conflicts with another final and

13  conclusive order.

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

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

16  question was to be settled otherwise than by proceedings in

17  that court.

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

19  service, the foreign court was a seriously inconvenient forum

20  for the trial of the action.

21         (g)  The foreign jurisdiction where judgment was

22  rendered would not give recognition to a similar judgment

23  rendered in this state.

24         Section 9.  Section 55.606, Florida Statutes, is

25  amended to read:

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

27  foreign judgment shall not be refused recognition for lack of

28  personal jurisdiction if:

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

30  state;

31  

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 1         (2)  The defendant voluntarily appeared in the

 2  proceedings, other than for the purpose of protecting property

 3  seized or threatened with seizure in the proceedings or of

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

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

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

 7  foreign court with respect to the subject matter involved;

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

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

10  corporate, had its principal place of business, was

11  incorporated, or had otherwise acquired corporate status, in

12  the foreign state;

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

14  state and the proceedings in the foreign court involved a

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

16  done by the defendant through that office in the foreign

17  state; or

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

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

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

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

22  Florida Statutes, is amended to read:

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

24  under execution shall be given by advertisement once each week

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 9  made by the levying creditor to the attorneys attorney of

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

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

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

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

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

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

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

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

18  679.401 in the name of the judgment debtor reflecting a

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

20  execution sale at the address listed in the financing

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

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

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

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

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

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

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

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

29  first advertisement.

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

31  56.27, Florida Statutes, are amended to read:

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 1         56.27  Executions; payment of money collected.--

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

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

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

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

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

 7  upon personal property, and the first priority lienholder

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

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

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

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

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

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

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

15  the attorney who originally commenced the action or who made

16  the original defense unless the file shows that another

17  attorney has been substituted.

18         (2)  When property sold under execution brings more

19  than the amount needed to satisfy the provisions of subsection

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

21  judgment lienholders whose judgment liens have not lapsed.

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

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

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

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

26  valid judgment liens and execution liens have been satisfied,

27  the surplus must be paid to the defendant.

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

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

30  levying creditor shall deliver to the sheriff file an

31  

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 1  affidavit setting forth the following as to the judgment

 2  debtor:

 3         (a)  An attestation that the levying creditor has

 4  reviewed the database or judgment lien records established in

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

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

 7  correct;

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

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

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

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

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

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

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

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

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

17  total value of the property under execution does not exceed

18  the amount of outstanding judgments.

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

20  Statutes, is amended to read:

21         56.29  Proceedings supplementary.--

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

23  judgment execution and has delivered a writ of execution to

24  any sheriff, the judgment holder plaintiff in execution may

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

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

27  including accrued costs and interest, and stating that the

28  execution is valid and outstanding, and thereupon the judgment

29  holder is entitled to these proceedings supplementary to

30  execution.

31  

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 1         Section 13.  Section 77.03, Florida Statutes, is

 2  amended to read:

 3         77.03  Issuance of writ after judgment.--After judgment

 4  has been obtained against defendant but before the writ of

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

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

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

 8  judgment and that movant does not believe that defendant has

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

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

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

12  execution.

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

14  Florida Statutes, are amended to read:

15         77.041  Notice to individual defendant for claim of

16  exemption from garnishment; procedure for hearing.--

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

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

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

20  Defendant":

21  

22               NOTICE TO DEFENDANT OF RIGHT AGAINST

23                   GARNISHMENT OF WAGES, MONEY,

24                        AND OTHER PROPERTY

25  

26         The Writ of Garnishment delivered to you with this

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

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

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

30  MONEY, OR PROPERTY. READ THIS NOTICE CAREFULLY.

31  

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 1         State and federal laws provide that certain wages,

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

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

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

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

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

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

 8  lawyer for specific advice.

 9         TO KEEP YOUR WAGES, MONEY, AND OTHER PROPERTY

10         FROM BEING GARNISHED, OR TO GET BACK ANYTHING

11         ALREADY TAKEN, YOU MUST COMPLETE A FORM FOR

12         CLAIM OF EXEMPTION AND REQUEST FOR HEARING AS

13         SET FORTH BELOW AND HAVE THE FORM NOTARIZED.

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

15         WITHIN 20 DAYS AFTER THE DATE YOU RECEIVE THIS

16         NOTICE OR YOU MAY LOSE IMPORTANT RIGHTS. YOU

17         MUST ALSO MAIL OR DELIVER A COPY OF THIS FORM

18         TO THE PLAINTIFF AND THE GARNISHEE AT THE

19         ADDRESSES LISTED ON THE WRIT OF GARNISHMENT.

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

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

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

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

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

25  8 business 7 days if you mailed a copy of the form for claim

26  and request to the plaintiff. If the plaintiff files an

27  objection to your Claim of Exemption and Request for Hearing,

28  the clerk will notify you and the other parties of the time

29  and date of the hearing. You may attend the hearing with or

30  without an attorney. If the plaintiff fails to file an

31  objection, no hearing is required, the writ of garnishment

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 1  will be dissolved and your wages, money, or property will be

 2  released.

 3         YOU SHOULD FILE THE FORM FOR CLAIM OF EXEMPTION

 4         IMMEDIATELY TO KEEP YOUR WAGES, MONEY, OR

 5         PROPERTY FROM BEING APPLIED TO THE COURT

 6         JUDGMENT. THE CLERK CANNOT GIVE YOU LEGAL

 7         ADVICE. IF YOU NEED LEGAL ASSISTANCE YOU SHOULD

 8         SEE A LAWYER. IF YOU CANNOT AFFORD A PRIVATE

 9         LAWYER, LEGAL SERVICES MAY BE AVAILABLE.

10         CONTACT YOUR LOCAL BAR ASSOCIATION OR ASK THE

11         CLERK'S OFFICE ABOUT ANY LEGAL SERVICES PROGRAM

12         IN YOUR AREA.

13  

14                  CLAIM OF EXEMPTION AND

15                   REQUEST FOR HEARING

16  

17  I claim exemptions from garnishment under the following

18  categories as checked:

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

20           or b. below.)

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

22           support for a child or other dependent and

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

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

25           support for a child or other dependent, have

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

27           have not agreed in writing to have my wages

28           garnished.

29  ....     2.  Social Security benefits.

30  ....     3.  Supplemental Security Income benefits.

31  ....     4.  Public assistance (welfare).

                                  19

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 1  ....     5.  Workers' Compensation.

 2  ....     6.  Unemployment Compensation.

 3  ....     7.  Veterans' benefits.

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

 5           pension money.

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

 7           value of a life insurance policy or proceeds

 8           of annuity contract.

 9  ....     10.  Disability income benefits.

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

11           Savings Account.

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

13           ................................(explain)

14  

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

16  of the hearing should be given to me at:

17  

18  Address: ................................

19  Telephone number:........................

20  

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

22  knowledge and belief.

23  

24  ................................

25  Defendant's signature

26  Date................................

27  

28  STATE OF FLORIDA

29  COUNTY OF

30  

31  

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

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

 3  statement)...

 4  Notary Public/Deputy Clerk

 5  Personally Known ........OR Produced Identification....

 6  Type of Identification Produced....................

 7  

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

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

10  soon as is practicable to determine the validity of the

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

12  written statement that contests the defendant's claim of

13  exemption within 3 2 business days after hand delivering the

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

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

16  and the clerk must automatically dissolve the writ and notify

17  the parties of the dissolution by mail.

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

19  Florida Statutes, are amended to read:

20         222.01  Designation of homestead by owner before

21  levy.--

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

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

24  55.10, a person who is entitled to the benefit of the

25  provisions of the State Constitution exempting real property

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

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

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

29  which the homestead property is located in substantially the

30  following form:

31  

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 1                       NOTICE OF HOMESTEAD

 2  

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

 4         shown on recorded judgment and name and address

 5         of any other person shown in the recorded

 6         judgment to receive a copy of the Notice of

 7         Homestead)....

 8  

 9         You are notified that the undersigned claims as

10         homestead exempt from levy and execution under

11         Section 4, Article X of the State Constitution,

12         the following described property:

13  

14                ...(Legal description)...

15  

16         The undersigned certifies, under oath, that he

17         or she has applied for and received the

18         homestead tax exemption as to the

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

20         identification parcel number of this property,

21         and that the undersigned has resided on this

22         property continuously and uninterruptedly from

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

24         Homestead. Further, the undersigned will either

25         convey or mortgage the above-described property

26         pursuant to the following:

27  

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

29         commitment by date, names of parties, date of

30         anticipated closing, and amount. The name,

31         address, and telephone number of the person

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 1         conducting the anticipated closing must be set

 2         forth.)...

 3  

 4         The undersigned also certifies, under oath,

 5         that the judgment lien filed by you on

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

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

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

 9         valid lien on the described property.

10  

11         YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION

12         222.01 ET SEQ., FLORIDA STATUTES, THAT WITHIN

13         45 DAYS AFTER THE MAILING OF THIS NOTICE YOU

14         MUST FILE AN ACTION IN THE CIRCUIT COURT OF

15         ........ COUNTY, FLORIDA, FOR A DECLARATORY

16         JUDGMENT TO DETERMINE THE CONSTITUTIONAL

17         HOMESTEAD STATUS OF THE SUBJECT PROPERTY OR TO

18         FORECLOSE YOUR JUDGMENT LIEN ON THE PROPERTY

19         AND RECORD A LIS PENDENS IN THE PUBLIC RECORDS

20         OF THE COUNTY WHERE THE HOMESTEAD IS LOCATED.

21         YOUR FAILURE TO SO ACT WILL RESULT IN ANY BUYER

22         OR LENDER, OR HIS OR HER SUCCESSORS AND

23         ASSIGNS, UNDER THE ABOVE-DESCRIBED CONTRACT OF

24         SALE OR LOAN COMMITMENT TO TAKE FREE AND CLEAR

25         OF ANY JUDGMENT LIEN YOU MAY HAVE ON THE

26         PROPERTY.

27  

28         This .... day of ............, 2.....

29                                ........................

30                              ...(Signature of Owner)...

31  

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 1                                ........................

 2                           ...(Printed Name of Owner)...

 3  

 4                                ........................

 5                                 ...(Owner's Address)...

 6  

 7         Sworn to and subscribed before me by

 8         ........................ who is personally

 9         known to me or produced

10         ........................ as identification,

11         this .... day of ............, 2.....

12  

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

14                                           Notary Public

15  

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

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

18  an action for a declaratory judgment to determine the

19  constitutional homestead status of the property described in

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

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

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

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

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

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

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

27  under the contract of sale or loan commitment described above

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

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

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

31  

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

 2  homestead status.

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

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

 5  amended to read:

 6         319.27  Notice of lien on motor vehicles or mobile

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

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

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

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

11  similar instrument or any other nonpossessory lien, including

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

13  upon which a Florida certificate of title has been issued

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

15  against creditors or subsequent purchasers for a valuable

16  consideration and without notice, unless a sworn notice of

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

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

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

20  notice when filed. The No interest of a statutory

21  nonpossessory lienor; the interest of a nonpossessory

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

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

24  if nonpossessory, shall not be enforceable against creditors

25  or subsequent purchasers for a valuable consideration unless

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

27  certificate of title for the subject motor vehicle or mobile

28  home prior to the occurrence of the subsequent transaction.

29  Provided the provisions of this subsection relating to a

30  nonpossessory statutory lienor; a nonpossessory execution,

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

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

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

 3  notice of lien shall provide the following information:

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

 5  retain title contract, conditional bill of sale, chattel

 6  mortgage, or other similar instrument was executed prior to

 7  the filing of the notice of lien;

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

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

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

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

12         (3)

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

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

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

16  nonpossessory statutory lienor, a security interest under this

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

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

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

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

21  as the execution of the security agreement or other similar

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

23  this subsection within 15 days after the debtor receives

24  possession of the motor vehicle or mobile home and executes

25  such security agreement or other similar instrument. The date

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

27  receipt by the department central office in Tallahassee, if

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

29  tax collector, or their agents.

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

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

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 1         679.1021  Definitions and index of definitions.--

 2         (1)  In this chapter, the term:

 3         (zz)  "Lien creditor" means:

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

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

 6  the like;

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

 8  of assignment;

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

10  of the petition; or

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

12         Section 18.  Section 701.02, Florida Statutes, is

13  amended to read:

14         701.02  Assignment not effectual against creditors

15  unless recorded and indicated in title of document;

16  applicability.--

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

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

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

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

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

22  title, indicates an assignment of mortgage and is recorded

23  according to law.

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

25  section shall also extend to assignments of mortgages

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

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

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

29  subsequent purchasers for a valuable consideration without

30  notice, unless a duly executed assignment be recorded

31  according to law.

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

 2  recorded according to law, purporting to assign the principal

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

 4  shall, as against subsequent purchasers and creditors for

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

 6  all accrued and unpaid interest secured by such mortgage,

 7  unless such interest is shall be specifically and

 8  affirmatively reserved in such an assignment by the assignor,

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

10  not shall be implied.

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

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

13  Uniform Commercial Code of this state govern the attachment

14  and perfection of a security interest in a mortgage upon real

15  property and in a promissory note or other right to payment or

16  performance secured by that mortgage. The assignment of such a

17  mortgage need not be recorded under this section for purposes

18  of attachment or perfection of a security interest in the

19  mortgage under the Uniform Commercial Code.

20         (5)  Notwithstanding subsection (4), a creditor or

21  subsequent purchaser of real property or any interest therein,

22  for valuable consideration and without notice, is entitled to

23  rely on a full or partial release, discharge, consent,

24  joinder, subordination, satisfaction, or assignment of a

25  mortgage upon such property made by the mortgagee of record,

26  without regard to the filing of any Uniform Commercial Code

27  financing statement that purports to perfect a security

28  interest in the mortgage or in a promissory note or other

29  right to payment or performance secured by the mortgage, and

30  the filing of any such financing statement does not constitute

31  notice for the purposes of this section. For the purposes of

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 1  this subsection, the term "mortgagee of record" means the

 2  person named as the mortgagee in the recorded mortgage or, if

 3  an assignment of the mortgage has been recorded in accordance

 4  with this section, the term "mortgagee of record" means the

 5  assignee named in the recorded assignment.

 6         Section 19.  Except as otherwise expressly provided in

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

 8  

 9          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
10                         Senate Bill 370

11                                 

12  The committee substitute adds a new subsection (5) to s.
    701.02, F.S., to clarify that, for transactions involving real
13  property, creditors and subsequent purchasers may rely on the
    records filed with the clerk of court as opposed to Uniform
14  Commercial Code filings.

15  The committee substitute also revises the title of the
    legislation to an act relating to "procedures for the
16  satisfaction of debts."

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  29

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