HB 0427CS

CHAMBER ACTION




1The Justice Council recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to procedures for the satisfaction of
7debts; amending s. 55.141, F.S.; revising provisions
8relating to satisfaction of judgments and decrees;
9eliminating the authority of judges to act under these
10provisions when there is no clerk of court; revising
11requirements of the clerk when accepting payment for
12satisfaction of a judgment and executing and recording a
13satisfaction of judgment; providing a sample form to be
14used by a clerk when recording a satisfaction of judgment;
15revising provisions relating to notification of
16satisfaction of judgment to a judgment holder; amending s.
1755.202, F.S.; revising procedures for acquiring a judgment
18lien; authorizing the court to file a judgment lien
19certificate before a judgment becomes final under certain
20circumstances; providing that an improperly filed
21certificate is of no effect; amending s. 55.204, F.S.;
22revising provisions relating to the continuation of
23judgment liens; revising provisions requiring the
24Department of State to maintain certain files and
25information; amending s. 55.205, F.S.; deleting a
26provision authorizing certain creditors to bring certain
27actions against the property of a debtor; amending ss.
2855.602, 55.603, 55.604, 55.605, and 55.606, F.S.; revising
29provisions relating to foreign judgments to apply only to
30out-of-country foreign judgments; amending s. 56.21, F.S.;
31revising requirements for notices of a levy and execution
32sale; amending s. 56.27, F.S.; clarifying provisions
33relating to payment of money received under execution;
34amending s. 56.29, F.S.; revising requirements regarding
35supplementary proceedings for unsatisfied judgments and
36judgment liens; amending s. 77.03, F.S.; deleting the
37provision that a garnishing creditor must believe that
38execution would be unavailing; amending s. 77.04, F.S.;
39specifying a time period for a garnishee to serve an
40answer to a writ; amending s. 77.041, F.S.; increasing the
41time period during which a garnishing creditor may object
42to the debtor's claim of exemption and request a hearing;
43amending s. 77.07, F.S.; providing for automatic
44dissolution of a writ and discharge of a garnishee of
45liability under certain circumstances; granting a
46plaintiff the right to extend a writ for a certain time
47period; providing procedures; amending s. 222.01, F.S.;
48revising provisions relating to the designation of
49homestead property by the owner prior to levy to include
50foreign judgments; amending s. 319.27, F.S.; correcting a
51cross reference; amending s. 679.1021, F.S.; redefining
52the term "lien creditor"; amending s. 701.02, F.S.;
53providing that certain chapters of the Uniform Commercial
54Code govern the attachment and perfection of a security
55interest in a mortgage upon real property and in a
56promissory note or other right to payment or performance
57secured by that mortgage; providing that the assignment of
58such a mortgage need not be recorded under s. 701.02,
59F.S., in order for a security interest in the mortgage to
60attach or be perfected under the Uniform Commercial Code;
61providing that a creditor or subsequent purchaser of real
62property or of any interest therein may rely on a full or
63partial release, discharge, consent, joinder,
64subordination, satisfaction, or assignment of a mortgage
65upon the property which was made by the mortgagee of
66record, without regard to the filing of certain Uniform
67Commercial Code financing statements; providing that the
68filing of such a financing statement does not constitute
69notice for the purposes of s. 701.02, F.S.; defining the
70term "mortgagee of record"; amending s. 817.801, F.S.;
71defining the term "creditor contribution"; amending s.
72817.802, F.S.; revising the amount of fees or
73contributions that a debt manager or credit counselor may
74charge to certain debtors; amending s. 817.804, F.S.;
75revising an audit requirement for debt managers and credit
76counselors; amending s. 817.805, F.S.; excluding creditor
77contributions from certain funds disbursement requirements
78for debt managers and credit counselors; providing
79effective dates.
80
81Be It Enacted by the Legislature of the State of Florida:
82
83     Section 1.  Section 55.141, Florida Statutes, is amended to
84read:
85     55.141  Satisfaction of judgments and decrees; duties of
86clerk and judge.--
87     (1)  All judgments and decrees for the payment of money
88rendered in the courts of this state and which have become
89final, may be satisfied at any time prior to the actual levy of
90execution issued thereon by payment of the full amount of such
91judgment or decree, with interest thereon, plus the costs of the
92issuance, if any, of execution thereon into the registry of the
93court where rendered.
94     (2)  Upon such payment, the clerk, or the judge if there is
95no clerk, shall execute issue his or her receipt therefor and
96shall record in the official records a satisfaction of judgment,
97provided by the judgment holder, upon payment of the recording
98charge prescribed in s. 28.24(12) plus the necessary costs of
99mailing to the clerk or judge. Upon payment of the amount
100required in subsection (1) and the recording charge required by
101this subsection and execution and recordation of the
102satisfaction by the clerk, any lien created by the judgment is
103satisfied and discharged. The clerk or judge shall formally
104notify the owner of record of such judgment or decree, if such
105person and his or her address are known to the clerk or judge
106receiving such payment, and, upon request therefor, shall pay
107over to the person entitled, or to his or her order, the full
108amount of the payment so received, less his or her service
109charge for providing a receipt upon the court issuing a writ of
110execution on such judgment or decree, if any has been issued,
111and less his or her service charge for receiving into and paying
112out of the registry of the court such payment, together with the
113service charge of the clerk for receiving into and paying such
114money out of the registry of the court.
115     (3)  The satisfaction of judgment executed by the clerk
116must be substantially in the following form:
117
118
Satisfaction of Judgment by Clerk
119
120The undersigned Clerk acknowledges on this      day of (month)
121(year) receipt from (identity of party making payment) of $
122(total amount received), comprised of $     face amount of the
123judgment; $     interest accruing on the judgment through the
124date of payment; $     costs of issuance of any execution; and $  
125for recording.
126
127Pursuant to section 55.141, Florida Statutes, said sum is paid
128to satisfy the lien and to discharge that certain final judgment
129in favor of (name of judgment holder), whose last known address,
130if known, is (address if shown on face of judgment or in
131recorded affidavit pursuant to section 55.10(1), Florida
132Statutes,) against (name of judgment debtor) recorded in
133Official Records Volume/Book     , page     , of the public
134records of______
135County, Florida.
136
137Upon the execution of this satisfaction, said judgment is
138satisfied and discharged.
139
140If an address for the judgment holder was provided under section
14155.10(1), Florida Statutes, I certify that a copy of this notice
142has been sent to the judgment holder at said address by
143certified mail with return receipt requested or by registered
144mail if the notice is to be sent outside the continental United
145States.
146
147Clerk of Court
148     (4)  If an address for the judgment holder was provided
149under s. 55.10(1), the clerk shall formally send a copy of the
150satisfaction to the judgment holder at that address by certified
151mail with return receipt or by registered mail if the notice is
152to be sent outside the continental United States. If an address
153is not provided under s. 55.10(1) or if delivery cannot be
154effected to such address, the clerk may, but is not obligated
155to, make reasonable attempts to locate the judgment holder. The
156discharge of the lien by the issuance of the satisfaction is not
157dependent upon the delivery of notice by the clerk.
158     (5)  Upon application of the judgment holder, the clerk
159shall pay over to the judgment holder the full amount of the
160payment received, less the clerk's fees for issuing execution on
161such judgment, if any has been issued; less the clerk's fees for
162receiving into and paying out of the registry of the court such
163payment; less the clerk's fees for recording the satisfaction of
164judgment; and, if the clerk incurred expenses in locating the
165judgment holder, less the reasonable expenses so incurred.
166     (3)  Full payment of judgments and decrees as in the
167preceding subsections of this section provided shall constitute
168full payment and satisfaction thereof and any lien created by
169such judgment or decree shall thereupon be satisfied and
170discharged.
171     Section 2.  Subsections (2) and (3) of section 55.202,
172Florida Statutes, are amended to read:
173     55.202  Judgments, orders, and decrees; lien on personal
174property.--
175     (2)  A judgment lien may be acquired on a judgment debtor's
176interest in all personal property in this state subject to
177execution under s. 56.061, other than fixtures, money,
178negotiable instruments, and mortgages.
179     (a)  A judgment lien is acquired by filing a judgment lien
180certificate in accordance with s. 55.203 with the Department of
181State after the judgment has become final and if the time to
182move for rehearing has lapsed, no motion for rehearing is
183pending, and no stay of the judgment or its enforcement is then
184in effect. A court may authorize, for cause shown, the filing of
185a judgment lien certificate before a judgment has become final
186when the court has authorized the issuance of a writ of
187execution in the same matter. A judgment lien certificate not
188filed in compliance with this subsection is permanently void and
189of no effect.
190     (b)  For any lien, warrant, assessment, or judgment
191collected by the Department of Revenue, a judgment lien may be
192acquired by filing the judgment lien certificate information or
193warrant with the Department of State in accordance with
194subsection (5).
195     (c)  Except as provided in s. 55.208, the effective date of
196a judgment lien is the date, including the time of day, of
197filing. Although no lien attaches to property, and a creditor
198does not become a lien creditor as to liens under chapter 679,
199until the debtor acquires an interest in the property, priority
200among competing judgment liens is determined in order of filing
201date and time.
202     (d)  Except as provided in s. 55.204(3), a judgment
203creditor may file only one effective judgment lien certificate
204based upon a particular judgment.
205     (3)  Except as otherwise provided in s. 55.208, the
206priority of a judgment lien acquired in accordance with this
207section or s. 55.204(3) is established at the date and time the
208judgment lien certificate is filed.
209     Section 3.  Subsections (4) and (6) of section 55.204,
210Florida Statutes, are amended to read:
211     55.204  Duration and continuation of judgment lien;
212destruction of records.--
213     (4)  A judgment lien continues only as to itemized property
214for an additional 90 days after lapse of the lien. Such judgment
215lien will continue only if:
216     (a)  The property had been itemized and its location
217described with sufficient particularity in the instructions for
218levy to permit the sheriff to act;
219     (b)  The instructions for the levy had been delivered to
220the sheriff prior to the date of lapse of the lien to permit the
221sheriff to act; and
222     (c)  The property was located in the county in which the
223sheriff has jurisdiction at the time of delivery of the
224instruction for levy. Subsequent removal of the property does
225not defeat the lien. A court may order continuation of the lien
226beyond the 90-day period on a showing that extraordinary
227circumstances have prevented levy.
228     (6)  If no second judgment lien is filed, the Department of
229State shall maintain each judgment lien file and all information
230contained therein for a minimum of 1 year after the judgment
231lien lapses in accordance with this section. If a second
232judgment lien is filed, the department shall maintain both files
233and all information contained in such files for a minimum of 1
234year after the second judgment lien lapses.
235     Section 4.  Subsection (1) of section 55.205, Florida
236Statutes, is amended to read:
237     55.205  Effect of judgment lien.--
238     (1)  A valid judgment lien gives the judgment creditor the
239right to proceed against the property of the debtor through writ
240of execution, garnishment, or other judicial process. A judgment
241creditor who has not acquired a judgment lien as provided in s.
24255.202 or whose lien has lapsed may nevertheless proceed against
243the judgment debtor's property through any appropriate other
244judicial process. Such judgment creditor proceeding by writ of
245execution acquires a lien as of the time of levy and only on the
246property levied upon. Except as provided in s. 55.208, such
247judgment creditor takes subject to the claims and interest of
248priority judgment creditors.
249     Section 5.  Subsection (2) of section 55.602, Florida
250Statutes, is amended to read:
251     55.602  Definitions.--As used in this act, the term:
252     (2)  "Out-of-country foreign judgment" means any judgment
253of a foreign state granting or denying recovery of a sum of
254money, other than a judgment for taxes, a fine, or other
255penalty.
256     Section 6.  Section 55.603, Florida Statutes, is amended to
257read:
258     55.603  Applicability.--This act applies to any out-of-
259out-of-country foreign judgment that is final and conclusive and
260enforceable where rendered, even though an appeal therefrom is
261pending or is subject to appeal.
262     Section 7.  Section 55.604, Florida Statutes, is amended to
263read:
264     55.604  Recognition and enforcement.--Except as provided in
265s. 55.605, an out-of-country a foreign judgment meeting the
266requirements of s. 55.603 is conclusive between the parties to
267the extent that it grants or denies recovery of a sum of money.
268Procedures for recognition and enforceability of an out-of-
269country a foreign judgment shall be as follows:
270     (1)  The out-of-country foreign judgment shall be filed
271with the clerk of the court and recorded in the public records
272in the county or counties where enforcement is sought.
273     (a)  At the time of the recording of an out-of-country a
274foreign judgment, the judgment creditor shall make and record
275with the clerk of the circuit court an affidavit setting forth
276the name, social security number, if known, and last known post-
277office address of the judgment debtor and of the judgment
278creditor.
279     (b)  Promptly upon the recording of the out-of-country
280foreign judgment and the affidavit, the clerk shall mail notice
281of the recording of the out-of-country foreign judgment, by
282registered mail with return receipt requested, to the judgment
283debtor at the address given in the affidavit and shall make a
284note of the mailing in the docket. The notice shall include the
285name and address of the judgment creditor and of the judgment
286creditor's attorney, if any, in this state. In addition, the
287judgment creditor may mail a notice of the recording of the
288judgment to the judgment debtor and may record proof of mailing
289with the clerk. The failure of the clerk to mail notice of
290recording will not affect the enforcement proceedings if proof
291of mailing by the judgment creditor has been recorded.
292     (2)  The judgment debtor shall have 30 days after service
293of the notice to file a notice of objection with the clerk of
294the court specifying the grounds for nonrecognition or
295nonenforceability under this act.
296     (3)  Upon the application of any party, and after proper
297notice, the circuit court shall have jurisdiction to conduct a
298hearing, determine the issues, and enter an appropriate order
299granting or denying recognition in accordance with the terms of
300this act.
301     (4)  If the judgment debtor fails to file a notice of
302objection within the required time, the clerk of the court shall
303record a certificate stating that no objection has been filed.
304     (5)  Upon entry of an order recognizing the out-of-country
305foreign judgment, or upon recording of the clerk's certificate
306set forth above, the out-of-country foreign judgment shall be
307enforced in the same manner as the judgment of a court of this
308state.
309     (6)  Once an order recognizing the out-of-country foreign
310judgment has been entered by a court of this state, the order
311and a copy of the judgment may be recorded in any other county
312of this state without further notice or proceedings, and shall
313be enforceable in the same manner as the judgment of a court of
314this state.
315     (7)  A lien on real estate in any county shall be created
316only when there has been recorded in the official records of the
317county (a) a certified copy of the judgment, and (b) a copy of
318the clerk's certificate or the order recognizing the out-of-
319country foreign judgment. The priority of such lien will be
320established as of the time the latter of the two recordings has
321occurred. Such lien may be partially released or satisfied by
322the person designated pursuant to paragraph (1).
323     (8)  A judgment lien on personal property is acquired only
324when a judgment lien certificate is filed in accordance with s.
32555.203 with the Department of State.
326     Section 8.  Section 55.605, Florida Statutes, is amended to
327read:
328     55.605  Grounds for nonrecognition.--
329     (1)  An out-of-country A foreign judgment is not conclusive
330if:
331     (a)  The judgment was rendered under a system which does
332not provide impartial tribunals or procedures compatible with
333the requirements of due process of law.
334     (b)  The foreign court did not have personal jurisdiction
335over the defendant.
336     (c)  The foreign court did not have jurisdiction over the
337subject matter.
338     (2)  An out-of-country A foreign judgment need not be
339recognized if:
340     (a)  The defendant in the proceedings in the foreign court
341did not receive notice of the proceedings in sufficient time to
342enable him or her to defend.
343     (b)  The judgment was obtained by fraud.
344     (c)  The cause of action or claim for relief on which the
345judgment is based is repugnant to the public policy of this
346state.
347     (d)  The judgment conflicts with another final and
348conclusive order.
349     (e)  The proceeding in the foreign court was contrary to an
350agreement between the parties under which the dispute in
351question was to be settled otherwise than by proceedings in that
352court.
353     (f)  In the case of jurisdiction based only on personal
354service, the foreign court was a seriously inconvenient forum
355for the trial of the action.
356     (g)  The foreign jurisdiction where judgment was rendered
357would not give recognition to a similar judgment rendered in
358this state.
359     Section 9.  Section 55.606, Florida Statutes, is amended to
360read:
361     55.606  Personal jurisdiction.--The out-of-country foreign
362judgment shall not be refused recognition for lack of personal
363jurisdiction if:
364     (1)  The defendant was served personally in the foreign
365state;
366     (2)  The defendant voluntarily appeared in the proceedings,
367other than for the purpose of protecting property seized or
368threatened with seizure in the proceedings or of contesting the
369jurisdiction of the court over him or her;
370     (3)  The defendant, prior to the commencement of the
371proceedings, had agreed to submit to the jurisdiction of the
372foreign court with respect to the subject matter involved;
373     (4)  The defendant was domiciled in the foreign state when
374the proceedings were instituted, or, being a body corporate, had
375its principal place of business, was incorporated, or had
376otherwise acquired corporate status, in the foreign state;
377     (5)  The defendant had a business office in the foreign
378state and the proceedings in the foreign court involved a cause
379of action or a claim for relief arising out of business done by
380the defendant through that office in the foreign state; or
381     (6)  The defendant operated a motor vehicle or airplane in
382the foreign state and the proceedings involved a cause of action
383or claim for relief arising out of such operation.
384     Section 10.  Effective October 1, 2005, section 56.21,
385Florida Statutes, is amended to read:
386     56.21  Execution sales; notice.--Notice of all sales under
387execution shall be given by advertisement once each week for 4
388successive weeks in a newspaper published in the county in which
389the sale is to take place. The time of such notice may be
390shortened in the discretion of the court from which the
391execution issued, upon affidavit that the property to be sold is
392subject to decay and will not sell for its full value if held
393until date of sale. On or before the date of the first
394publication or posting of the notice of sale, a copy of the
395notice of sale shall be furnished by certified mail to the
396attorney of record of the judgment debtor, or to the judgment
397debtor at the judgment debtor's last known address if the
398judgment debtor does not have an attorney of record. Such copy
399of the notice of sale shall be mailed even though a default
400judgment was entered. When levying upon personal property, a
401notice of such levy and execution sale and a copy of the
402affidavit required by s. 56.27(4) shall be sent by the sheriff
403made by the levying creditor to the attorneys attorney of record
404of all the judgment creditors, creditor or to all the judgment
405creditors who do not have an attorney of record, creditor who
406have has acquired a judgment lien as provided in s. 55.202 or s.
40755.204(3), and whose liens have not lapsed at the time of levy,
408at the address listed in the judgment lien certificate, or, if
409amended, in any amendment to the judgment lien certificate, and
410to all secured creditors who have filed financing statements as
411provided in part V of chapter 679 s. 679.401 in the name of the
412judgment debtor reflecting a security interest in property of
413the kind to be sold at the execution sale at the address listed
414in the financing statement, or, if amended, in any amendment to
415the financing statement. Such notice shall be made in the same
416manner as notice is made to any judgment debtor under this
417section. When levying upon real property, notice of such levy
418and execution sale shall be made to the property owner of record
419in the same manner as notice is made to any judgment debtor
420pursuant to this section. When selling real or personal
421property, the sale date shall not be earlier than 30 days after
422the date of the first advertisement.
423     Section 11.  Subsections (1), (2), and (4) of section
42456.27, Florida Statutes, are amended to read:
425     56.27  Executions; payment of money collected.--
426     (1)  All money received under executions shall be paid, in
427the order prescribed, to the following: the sheriff, for costs;
428the levying creditor in the amount of $500 as liquidated
429expenses; if the levy is upon real property, the first priority
430lienholder under s. 55.10; and if the levy is upon personal
431property, and the first priority lienholder under s. 55.202, s.
43255.204(3), or s. 55.208(2), as set forth in an affidavit
433required by subsection (4), or his or her attorney, in
434satisfaction of the judgment lien, provided that the judgment
435lien has not lapsed at the time of the levy. The receipt of the
436attorney shall be a release of the officer paying the money to
437him or her. When the name of more than one attorney appears in
438the court file, the money shall be paid to the attorney who
439originally commenced the action or who made the original defense
440unless the file shows that another attorney has been
441substituted.
442     (2)  When property sold under execution brings more than
443the amount needed to satisfy the provisions of subsection (1),
444the surplus shall be paid in the order of priority to any
445judgment lienholders whose judgment liens have not lapsed.
446Priority of liens on personal property shall be based on the
447effective date of the judgment lien acquired under s. 55.202, s.
44855.204(3), or s. 55.208(2), as set forth in an affidavit
449required under subsection (4). If there is a surplus after all
450valid judgment liens and execution liens have been satisfied,
451the surplus must be paid to the defendant.
452     (4)  On or Before the date of the first publication or
453posting of the notice of sale provided for under s. 56.21, the
454levying creditor shall deliver to the sheriff file an affidavit
455setting forth the following as to the judgment debtor:
456     (a)  An attestation that the levying creditor has reviewed
457the database or judgment lien records established in accordance
458with ss. 55.201-55.209 and that the information contained in the
459affidavit based on that review is true and correct;
460     (b)  The information required under s. 55.203(1) and (2)
461for each judgment lien certificate indexed under the name of the
462judgment debtor as to each judgment creditor; the file number
463assigned to the record of the original and, if any, the second
464judgment lien; and the date of filing for each judgment lien
465certificate under s. 55.202 or s. 55.204(3); and
466     (c)  A statement that the levying creditor either does not
467have any other levy in process or, if another levy is in
468process, the levying creditor believes in good faith that the
469total value of the property under execution does not exceed the
470amount of outstanding judgments.
471     Section 12.  Subsection (1) of section 56.29, Florida
472Statutes, is amended to read:
473     56.29  Proceedings supplementary.--
474     (1)  When any person or entity holds an unsatisfied
475judgment or judgment lien obtained under chapter 55 execution
476and has delivered a writ of execution to any sheriff, the
477judgment holder or judgment lienholder plaintiff in execution
478may file an affidavit so stating, identifying, if applicable,
479the issuing court, the case number, and the unsatisfied amount
480of the judgment or judgment lien, including accrued costs and
481interest, and stating that the execution is valid and
482outstanding, and thereupon the judgment holder or judgment
483lienholder is entitled to these proceedings supplementary to
484execution.
485     Section 13.  Section 77.03, Florida Statutes, is amended to
486read:
487     77.03  Issuance of writ after judgment.--After judgment has
488been obtained against defendant but before the writ of
489garnishment is issued, the plaintiff, the plaintiff's agent or
490attorney, shall file a motion (which shall not be verified or
491negative defendant's exemptions) stating the amount of the
492judgment and that movant does not believe that defendant has in
493his or her possession visible property on which a levy can be
494made sufficient to satisfy the judgment. The motion may be filed
495and the writ issued either before or after the return of
496execution.
497     Section 14.  Section 77.04, Florida Statutes, is amended to
498read:
499     77.04  Writ; form.--The writ shall require the garnishee to
500serve an answer to it on plaintiff within 20 days after service
501stating whether he or she is indebted to defendant at the time
502of the answer, or was indebted at the time of service of the
503writ, plus sufficient time not to exceed 1 business day for the
504garnishee to act expeditiously on the writ, or at any time
505between such times; and in what sum and what tangible or
506intangible personal property of defendant the garnishee has in
507his or her possession or control at the time of his or her
508answer, or had at the time of the service of the writ, or at any
509time between such times; and whether the garnishee knows of any
510other person indebted to defendant, or who may have any of the
511property of defendant in his or her possession or control. The
512writ shall state the amount named in plaintiff's motion.
513     Section 15.  Subsections (1) and (3) of section 77.041,
514Florida Statutes, are amended to read:
515     77.041  Notice to individual defendant for claim of
516exemption from garnishment; procedure for hearing.--
517     (1)  Upon application for a writ of garnishment by a
518plaintiff, if the defendant is an individual, the clerk of the
519court shall attach to the writ the following "Notice to
520Defendant":
521
522
NOTICE TO DEFENDANT OF RIGHT AGAINST
523
GARNISHMENT OF WAGES, MONEY,
524
AND OTHER PROPERTY
525
526     The Writ of Garnishment delivered to you with this Notice
527means that wages, money, and other property belonging to you
528have been garnished to pay a court judgment against you.
529HOWEVER, YOU MAY BE ABLE TO KEEP OR RECOVER YOUR WAGES, MONEY,
530OR PROPERTY. READ THIS NOTICE CAREFULLY.
531     State and federal laws provide that certain wages, money,
532and property, even if deposited in a bank, savings and loan, or
533credit union, may not be taken to pay certain types of court
534judgments. Such wages, money, and property are exempt from
535garnishment. The major exemptions are listed below on the form
536for Claim of Exemption and Request for Hearing. This list does
537not include all possible exemptions. You should consult a lawyer
538for specific advice.
539
540TO KEEP YOUR WAGES, MONEY, AND OTHER PROPERTY FROM
541BEING GARNISHED, OR TO GET BACK ANYTHING ALREADY
542TAKEN, YOU MUST COMPLETE A FORM FOR CLAIM OF EXEMPTION
543AND REQUEST FOR HEARING AS SET FORTH BELOW AND HAVE
544THE FORM NOTARIZED. YOU MUST FILE THE FORM WITH THE
545CLERK'S OFFICE WITHIN 20 DAYS AFTER THE DATE YOU
546RECEIVE THIS NOTICE OR YOU MAY LOSE IMPORTANT RIGHTS.
547YOU MUST ALSO MAIL OR DELIVER A COPY OF THIS FORM TO
548THE PLAINTIFF AND THE GARNISHEE AT THE ADDRESSES
549LISTED ON THE WRIT OF GARNISHMENT.
550
551     If you request a hearing, it will be held as soon as
552possible after your request is received by the court. The
553plaintiff must file any objection within 3 2 business days if
554you hand delivered to the plaintiff a copy of the form for Claim
555of Exemption and Request for Hearing or, alternatively, 8
556business 7 days if you mailed a copy of the form for claim and
557request to the plaintiff. If the plaintiff files an objection to
558your Claim of Exemption and Request for Hearing, the clerk will
559notify you and the other parties of the time and date of the
560hearing. You may attend the hearing with or without an attorney.
561If the plaintiff fails to file an objection, no hearing is
562required, the writ of garnishment will be dissolved and your
563wages, money, or property will be released.
564
565YOU SHOULD FILE THE FORM FOR CLAIM OF EXEMPTION
566IMMEDIATELY TO KEEP YOUR WAGES, MONEY, OR PROPERTY
567FROM BEING APPLIED TO THE COURT JUDGMENT. THE CLERK
568CANNOT GIVE YOU LEGAL ADVICE. IF YOU NEED LEGAL
569ASSISTANCE YOU SHOULD SEE A LAWYER. IF YOU CANNOT
570AFFORD A PRIVATE LAWYER, LEGAL SERVICES MAY BE
571AVAILABLE. CONTACT YOUR LOCAL BAR ASSOCIATION OR ASK
572THE CLERK'S OFFICE ABOUT ANY LEGAL SERVICES PROGRAM IN
573YOUR AREA.
574
575
CLAIM OF EXEMPTION AND
576
REQUEST FOR HEARING
577
578I claim exemptions from garnishment under the following
579categories as checked:
580_____1.  Head of family wages. (You must check a. or b. below.)
581_____a.  I provide more than one-half of the support for a child
582or other dependent and have net earnings of $500 or less per
583week.
584_____b.  I provide more than one-half of the support for a child
585or other dependent, have net earnings of more than $500 per
586week, but have not agreed in writing to have my wages garnished.
587_____2.  Social Security benefits.
588_____3.  Supplemental Security Income benefits.
589_____4.  Public assistance (welfare).
590_____5.  Workers' Compensation.
591_____6.  Unemployment Compensation.
592_____7.  Veterans' benefits.
593_____8.  Retirement or profit-sharing benefits or pension money.
594_____9.  Life insurance benefits or cash surrender value of a
595life insurance policy or proceeds of annuity contract.
596_____10.  Disability income benefits.
597_____11.  Prepaid College Trust Fund or Medical Savings Account.
598_____12.  Other exemptions as provided by law.
599          ________________________________(explain)
600
601I request a hearing to decide the validity of my claim. Notice
602of the hearing should be given to me at:
603
604Address:________________________________
605
606Telephone number:________________________
607
608The statements made in this request are true to the best of my
609knowledge and belief.
610
611________________________________
612Defendant's signature
613
614Date________________________________
615
616STATE OF FLORIDA
617
618COUNTY OF
619
620Sworn and subscribed to before me this ________ day of (month
621and year), by (name of person making statement)
622
623Notary Public/Deputy Clerk
624
625Personally Known ________OR Produced Identification____
626
627Type of Identification Produced____________________
628
629     (3)  Upon the filing by a defendant of a claim of exemption
630and request for hearing, a hearing will be held as soon as is
631practicable to determine the validity of the claimed exemptions.
632If the plaintiff does not file a sworn written statement that
633contests the defendant's claim of exemption within 3 2 business
634days after hand delivering the claim and request or,
635alternatively, 8 7 business days, if the claim and request were
636served by mail, no hearing is required and the clerk must
637automatically dissolve the writ and notify the parties of the
638dissolution by mail.
639     Section 16.  Subsection (5) is added to section 77.07,
640Florida Statutes, to read:
641     77.07  Dissolution of writ.--
642     (5)  If the plaintiff fails to file a dismissal or motion
643for final judgment within 6 months after filing the writ of
644garnishment, the writ shall automatically be dissolved and the
645garnishee shall be discharged from further liability under the
646writ. The plaintiff has the right to extend the writ for an
647additional 6 months by serving the garnishee and the defendant a
648notice of extension and filing in the underlying proceeding a
649certification of such service.
650     Section 17.  Subsections (2) and (4) of section 222.01,
651Florida Statutes, are amended to read:
652     222.01  Designation of homestead by owner before levy.--
653     (2)  When a certified copy of a judgment has been filed in
654the public records of a county pursuant to chapter 55 s. 55.10,
655a person who is entitled to the benefit of the provisions of the
656State Constitution exempting real property as homestead and who
657has a contract to sell or a commitment from a lender for a
658mortgage on the homestead may file a notice of homestead in the
659public records of the county in which the homestead property is
660located in substantially the following form:
661
662
NOTICE OF HOMESTEAD
663
664To:  (Name and address of judgment creditor as shown
665on recorded judgment and name and address of any other
666person shown in the recorded judgment to receive a
667copy of the Notice of Homestead).
668
669You are notified that the undersigned claims as
670homestead exempt from levy and execution under Section
6714, Article X of the State Constitution, the following
672described property:
673
674
(Legal description)
675
676The undersigned certifies, under oath, that he or she
677has applied for and received the homestead tax
678exemption as to the above-described property, that
679____ is the tax identification parcel number of this
680property, and that the undersigned has resided on this
681property continuously and uninterruptedly from (date)
682to the date of this Notice of Homestead. Further, the
683undersigned will either convey or mortgage the above-
684described property pursuant to the following:
685
686(Describe the contract of sale or loan commitment by
687date, names of parties, date of anticipated closing,
688and amount. The name, address, and telephone number of
689the person conducting the anticipated closing must be
690set forth.)
691
692The undersigned also certifies, under oath, that the
693judgment lien filed by you on (date) and recorded in
694Official Records Book ____, Page ____, of the Public
695Records of ________ County, Florida, does not
696constitute a valid lien on the described property.
697
698YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION 222.01
699ET SEQ., FLORIDA STATUTES, THAT WITHIN 45 DAYS AFTER
700THE MAILING OF THIS NOTICE YOU MUST FILE AN ACTION IN
701THE CIRCUIT COURT OF ________ COUNTY, FLORIDA, FOR A
702DECLARATORY JUDGMENT TO DETERMINE THE CONSTITUTIONAL
703HOMESTEAD STATUS OF THE SUBJECT PROPERTY OR TO
704FORECLOSE YOUR JUDGMENT LIEN ON THE PROPERTY AND
705RECORD A LIS PENDENS IN THE PUBLIC RECORDS OF THE
706COUNTY WHERE THE HOMESTEAD IS LOCATED. YOUR FAILURE TO
707SO ACT WILL RESULT IN ANY BUYER OR LENDER, OR HIS OR
708HER SUCCESSORS AND ASSIGNS, UNDER THE ABOVE-DESCRIBED
709CONTRACT OF SALE OR LOAN COMMITMENT TO TAKE FREE AND
710CLEAR OF ANY JUDGMENT LIEN YOU MAY HAVE ON THE
711PROPERTY.
712
713This ____ day of ____________, 2____.
714________________________
715(Signature of Owner)
716
717________________________
718(Printed Name of Owner)
719
720________________________
721(Owner's Address)
722
723Sworn to and subscribed before me by
724________________________ who is personally
725known to me or produced
726________________________ as identification,
727this ____ day of ____________, 2____
728
729________________________
730Notary Public
731
732     (4)  A lien pursuant to chapter 55 s. 55.10 of any lienor
733upon whom such notice is served, who fails to institute an
734action for a declaratory judgment to determine the
735constitutional homestead status of the property described in the
736notice of homestead or to file an action to foreclose the
737judgment lien, together with the filing of a lis pendens in the
738public records of the county in which the homestead is located,
739within 45 days after service of such notice shall be deemed as
740not attaching to the property by virtue of its status as
741homestead property as to the interest of any buyer or lender, or
742his or her successors or assigns, who takes under the contract
743of sale or loan commitment described above within 180 days after
744the filing in the public records of the notice of homestead.
745This subsection shall not act to prohibit a lien from attaching
746to the real property described in the notice of homestead at
747such time as the property loses its homestead status.
748     Section 18.  Subsection (2) and paragraph (b) of subsection
749(3) of section 319.27, Florida Statutes, are amended to read:
750     319.27  Notice of lien on motor vehicles or mobile homes;
751notation on certificate; recording of lien.--
752     (2)  No lien for purchase money or as security for a debt
753in the form of a security agreement, retain title contract,
754conditional bill of sale, chattel mortgage, or other similar
755instrument or any other nonpossessory lien, including a lien for
756child support, upon a motor vehicle or mobile home upon which a
757Florida certificate of title has been issued shall be
758enforceable in any of the courts of this state against creditors
759or subsequent purchasers for a valuable consideration and
760without notice, unless a sworn notice of such lien has been
761filed in the department and such lien has been noted upon the
762certificate of title of the motor vehicle or mobile home. Such
763notice shall be effective as constructive notice when filed. The
764No interest of a statutory nonpossessory lienor; the interest of
765a nonpossessory execution, attachment, or equitable lienor; or
766the interest of a lien creditor as defined in s. 679.1021(1)(zz)
767679.301(3), if nonpossessory, shall not be enforceable against
768creditors or subsequent purchasers for a valuable consideration
769unless such interest becomes a possessory lien or is noted upon
770the certificate of title for the subject motor vehicle or mobile
771home prior to the occurrence of the subsequent transaction.
772Provided the provisions of this subsection relating to a
773nonpossessory statutory lienor; a nonpossessory execution,
774attachment, or equitable lienor; or the interest of a lien
775creditor as defined in s. 679.1021(1)(zz) 679.301(3) shall not
776apply to liens validly perfected prior to October 1, 1988. The
777notice of lien shall provide the following information:
778     (a)  The date of the lien if a security agreement, retain
779title contract, conditional bill of sale, chattel mortgage, or
780other similar instrument was executed prior to the filing of the
781notice of lien;
782     (b)  The name and address of the registered owner;
783     (c)  A description of the motor vehicle or mobile home,
784showing the make, type, and vehicle identification number; and
785     (d)  The name and address of the lienholder.
786     (3)
787     (b)  As applied to a determination of the respective rights
788of a secured party under this chapter and a lien creditor as
789defined by s. 679.1021(1)(zz) 679.301(3), or a nonpossessory
790statutory lienor, a security interest under this chapter shall
791be perfected upon the filing of the notice of lien with the
792department, the county tax collector, or their agents. Provided,
793however, the date of perfection of a security interest of such
794secured party shall be the same date as the execution of the
795security agreement or other similar instrument if the notice of
796lien is filed in accordance with this subsection within 15 days
797after the debtor receives possession of the motor vehicle or
798mobile home and executes such security agreement or other
799similar instrument. The date of filing of the notice of lien
800shall be the date of its receipt by the department central
801office in Tallahassee, if first filed there, or otherwise by the
802office of the county tax collector, or their agents.
803     Section 19.  Paragraph (zz) of subsection (1) of section
804679.1021, Florida Statutes, is amended to read:
805     679.1021  Definitions and index of definitions.--
806     (1)  In this chapter, the term:
807     (zz)  "Lien creditor" means:
808     1.  A creditor that has acquired a lien on the property
809involved by attachment, levy, judgment lien certificate, or the
810like;
811     2.  An assignee for benefit of creditors from the time of
812assignment;
813     3.  A trustee in bankruptcy from the date of the filing of
814the petition; or
815     4.  A receiver in equity from the time of appointment.
816     Section 20.  Section 701.02, Florida Statutes, is amended
817to read:
818     701.02  Assignment not effectual against creditors unless
819recorded and indicated in title of document; applicability.--
820     (1)  An No assignment of a mortgage upon real property or
821of any interest therein is not, shall be good or effectual in
822law or equity, against creditors or subsequent purchasers, for a
823valuable consideration, and without notice, unless the
824assignment is contained in a document that which, in its title,
825indicates an assignment of mortgage and is recorded according to
826law.
827     (2)  The provisions of This section shall also applies
828extend to assignments of mortgages resulting from transfers of
829all or any part or parts of the debt, note or notes secured by
830mortgage, and none of same is shall be effectual in law or in
831equity against creditors or subsequent purchasers for a valuable
832consideration without notice, unless a duly executed assignment
833be recorded according to law.
834     (3)  Any assignment of a mortgage, duly executed and
835recorded according to law, purporting to assign the principal of
836the mortgage debt or the unpaid balance of such principal,
837shall, as against subsequent purchasers and creditors for value
838and without notice, be held and deemed to assign any and all
839accrued and unpaid interest secured by such mortgage, unless
840such interest is shall be specifically and affirmatively
841reserved in such an assignment by the assignor, and a no
842reservation of such interest or any part thereof may not shall
843be implied.
844     (4)  Notwithstanding subsections (1), (2), and (3)
845governing the assignment of mortgages, the provisions of the
846Uniform Commercial Code of this state, chapters 670-680, govern
847the attachment and perfection of a security interest in a
848mortgage upon real property and in a promissory note or other
849right to payment or performance secured by that mortgage. The
850assignment of such a mortgage need not be recorded under this
851section for purposes of attachment or perfection of a security
852interest in the mortgage under the Uniform Commercial Code.
853     (5)  Notwithstanding subsection (4), a creditor or
854subsequent purchaser of real property or any interest therein,
855for valuable consideration and without notice, is entitled to
856rely on a full or partial release, discharge, consent, joinder,
857subordination, satisfaction, or assignment of a mortgage upon
858such property made by the mortgagee of record, without regard to
859the filing of any Uniform Commercial Code financing statement
860that purports to perfect a security interest in the mortgage or
861in a promissory note or other right to payment or performance
862secured by the mortgage, and the filing of any such financing
863statement does not constitute notice for the purposes of this
864section. For the purposes of this subsection, the term
865"mortgagee of record" means the person named as the mortgagee in
866the recorded mortgage or, if an assignment of the mortgage has
867been recorded in accordance with this section, the term
868"mortgagee of record" means the assignee named in the recorded
869assignment.
870     Section 21.  Subsection (5) is added to section 817.801,
871Florida Statutes, to read:
872     817.801  Definitions.--As used in this part:
873     (5)  "Creditor contribution" means any sum that a creditor
874agrees to contribute to a credit counseling agency, whether
875directly or by setoff to amounts otherwise payable to the
876creditor on behalf of debtors. However, a creditor contribution
877may not reduce any sums to be credited to the account of a
878debtor making a payment to the credit counseling agency for
879further payment to the creditor.
880     Section 22.  Section 817.802, Florida Statutes, is amended
881to read:
882     817.802  Unlawful fees and costs.--
883     (1)  It is unlawful for any person, while engaging in debt
884management services or credit counseling services, to charge or
885accept from a debtor residing in this state, directly or
886indirectly, a fee or contribution greater than $50 for the
887initial setup or initial consultation. Subsequently, the person
888may not charge or accept a fee or contribution from a debtor
889residing in this state greater than $120 per year for additional
890consultations or, alternatively, if debt management services as
891defined in s. 817.801(2)(b) are provided, the person may charge
892the greater of 15 7.5 percent of the amount paid monthly by the
893debtor to the person or $25 $35 per month, not to exceed a total
894of $50 per month.
895     (2)  No provision of This section does not prohibit
896prohibits any person, while engaging in debt management or
897credit counseling services, from imposing upon and receiving
898from a debtor a reasonable and separate charge or fee for
899insufficient funds transactions.
900     Section 23.  Paragraph (a) of subsection (1) of section
901817.804, Florida Statutes, is amended to read:
902     817.804  Requirements; disclosure and financial
903reporting.--
904     (1)  Any person engaged in debt management services or
905credit counseling services shall:
906     (a)  Obtain from a certified public accountant licensed
907under s. 473.308 an annual audit that shall include of all
908accounts of such person in which the funds of debtors are
909deposited and from which payments are made to creditors on
910behalf of debtors.
911     Section 24.  Section 817.805, Florida Statutes, is amended
912to read:
913     817.805  Disbursement of funds.--Any person engaged in debt
914management or credit counseling services shall disburse to the
915appropriate creditors all funds received from a debtor, less any
916fees permitted by s. 817.802 and any creditor contributions,
917within 30 days after receipt of such funds. Further, any person
918engaged in such services shall maintain a separate trust account
919for the receipt of any funds from debtors each debtor and the
920disbursement of such funds on behalf of such debtors debtor.
921     Section 25.  Except as otherwise expressly provided in this
922act, this act shall take effect upon becoming a law.


CODING: Words stricken are deletions; words underlined are additions.