Senate Bill sb0370c1
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By the Committee on Judiciary; and Senator Campbell
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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;
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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.
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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
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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.
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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;
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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
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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.
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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.
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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).
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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."
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