1 | The Justice Council recommends the following: |
2 |
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3 | Council/Committee Substitute |
4 | Remove the entire bill and insert: |
5 | A bill to be entitled |
6 | An act relating to procedures for the satisfaction of |
7 | debts; amending s. 55.141, F.S.; revising provisions |
8 | relating to satisfaction of judgments and decrees; |
9 | eliminating the authority of judges to act under these |
10 | provisions when there is no clerk of court; revising |
11 | requirements of the clerk when accepting payment for |
12 | satisfaction of a judgment and executing and recording a |
13 | satisfaction of judgment; providing a sample form to be |
14 | used by a clerk when recording a satisfaction of judgment; |
15 | revising provisions relating to notification of |
16 | satisfaction of judgment to a judgment holder; amending s. |
17 | 55.202, F.S.; revising procedures for acquiring a judgment |
18 | lien; authorizing the court to file a judgment lien |
19 | certificate before a judgment becomes final under certain |
20 | circumstances; providing that an improperly filed |
21 | certificate is of no effect; amending s. 55.204, F.S.; |
22 | revising provisions relating to the continuation of |
23 | judgment liens; revising provisions requiring the |
24 | Department of State to maintain certain files and |
25 | information; amending s. 55.205, F.S.; deleting a |
26 | provision authorizing certain creditors to bring certain |
27 | actions against the property of a debtor; amending ss. |
28 | 55.602, 55.603, 55.604, 55.605, and 55.606, F.S.; revising |
29 | provisions relating to foreign judgments to apply only to |
30 | out-of-country foreign judgments; amending s. 56.21, F.S.; |
31 | revising requirements for notices of a levy and execution |
32 | sale; amending s. 56.27, F.S.; clarifying provisions |
33 | relating to payment of money received under execution; |
34 | amending s. 56.29, F.S.; revising requirements regarding |
35 | supplementary proceedings for unsatisfied judgments and |
36 | judgment liens; amending s. 77.03, F.S.; deleting the |
37 | provision that a garnishing creditor must believe that |
38 | execution would be unavailing; amending s. 77.04, F.S.; |
39 | specifying a time period for a garnishee to serve an |
40 | answer to a writ; amending s. 77.041, F.S.; increasing the |
41 | time period during which a garnishing creditor may object |
42 | to the debtor's claim of exemption and request a hearing; |
43 | amending s. 77.07, F.S.; providing for automatic |
44 | dissolution of a writ and discharge of a garnishee of |
45 | liability under certain circumstances; granting a |
46 | plaintiff the right to extend a writ for a certain time |
47 | period; providing procedures; amending s. 222.01, F.S.; |
48 | revising provisions relating to the designation of |
49 | homestead property by the owner prior to levy to include |
50 | foreign judgments; amending s. 319.27, F.S.; correcting a |
51 | cross reference; amending s. 679.1021, F.S.; redefining |
52 | the term "lien creditor"; amending s. 701.02, F.S.; |
53 | providing that certain chapters of the Uniform Commercial |
54 | Code govern the attachment and perfection of a security |
55 | interest in a mortgage upon real property and in a |
56 | promissory note or other right to payment or performance |
57 | secured by that mortgage; providing that the assignment of |
58 | such a mortgage need not be recorded under s. 701.02, |
59 | F.S., in order for a security interest in the mortgage to |
60 | attach or be perfected under the Uniform Commercial Code; |
61 | providing that a creditor or subsequent purchaser of real |
62 | property or of any interest therein may rely on a full or |
63 | partial release, discharge, consent, joinder, |
64 | subordination, satisfaction, or assignment of a mortgage |
65 | upon the property which was made by the mortgagee of |
66 | record, without regard to the filing of certain Uniform |
67 | Commercial Code financing statements; providing that the |
68 | filing of such a financing statement does not constitute |
69 | notice for the purposes of s. 701.02, F.S.; defining the |
70 | term "mortgagee of record"; amending s. 817.801, F.S.; |
71 | defining the term "creditor contribution"; amending s. |
72 | 817.802, F.S.; revising the amount of fees or |
73 | contributions that a debt manager or credit counselor may |
74 | charge to certain debtors; amending s. 817.804, F.S.; |
75 | revising an audit requirement for debt managers and credit |
76 | counselors; amending s. 817.805, F.S.; excluding creditor |
77 | contributions from certain funds disbursement requirements |
78 | for debt managers and credit counselors; providing |
79 | effective dates. |
80 |
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81 | Be It Enacted by the Legislature of the State of Florida: |
82 |
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83 | Section 1. Section 55.141, Florida Statutes, is amended to |
84 | read: |
85 | 55.141 Satisfaction of judgments and decrees; duties of |
86 | clerk and judge.-- |
87 | (1) All judgments and decrees for the payment of money |
88 | rendered in the courts of this state and which have become |
89 | final, may be satisfied at any time prior to the actual levy of |
90 | execution issued thereon by payment of the full amount of such |
91 | judgment or decree, with interest thereon, plus the costs of the |
92 | issuance, if any, of execution thereon into the registry of the |
93 | court where rendered. |
94 | (2) Upon such payment, the clerk, or the judge if there is |
95 | no clerk, shall execute issue his or her receipt therefor and |
96 | shall record in the official records a satisfaction of judgment, |
97 | provided by the judgment holder, upon payment of the recording |
98 | charge prescribed in s. 28.24(12) plus the necessary costs of |
99 | mailing to the clerk or judge. Upon payment of the amount |
100 | required in subsection (1) and the recording charge required by |
101 | this subsection and execution and recordation of the |
102 | satisfaction by the clerk, any lien created by the judgment is |
103 | satisfied and discharged. The clerk or judge shall formally |
104 | notify the owner of record of such judgment or decree, if such |
105 | person and his or her address are known to the clerk or judge |
106 | receiving such payment, and, upon request therefor, shall pay |
107 | over to the person entitled, or to his or her order, the full |
108 | amount of the payment so received, less his or her service |
109 | charge for providing a receipt upon the court issuing a writ of |
110 | execution on such judgment or decree, if any has been issued, |
111 | and less his or her service charge for receiving into and paying |
112 | out of the registry of the court such payment, together with the |
113 | service charge of the clerk for receiving into and paying such |
114 | money out of the registry of the court. |
115 | (3) The satisfaction of judgment executed by the clerk |
116 | must be substantially in the following form: |
117 |
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118 | Satisfaction of Judgment by Clerk |
119 |
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120 | The 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 |
123 | judgment; $ interest accruing on the judgment through the |
124 | date of payment; $ costs of issuance of any execution; and $ |
125 | for recording. |
126 |
|
127 | Pursuant to section 55.141, Florida Statutes, said sum is paid |
128 | to satisfy the lien and to discharge that certain final judgment |
129 | in favor of (name of judgment holder), whose last known address, |
130 | if known, is (address if shown on face of judgment or in |
131 | recorded affidavit pursuant to section 55.10(1), Florida |
132 | Statutes,) against (name of judgment debtor) recorded in |
133 | Official Records Volume/Book , page , of the public |
134 | records of______ |
135 | County, Florida. |
136 |
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137 | Upon the execution of this satisfaction, said judgment is |
138 | satisfied and discharged. |
139 |
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140 | If an address for the judgment holder was provided under section |
141 | 55.10(1), Florida Statutes, I certify that a copy of this notice |
142 | has been sent to the judgment holder at said address by |
143 | certified mail with return receipt requested or by registered |
144 | mail if the notice is to be sent outside the continental United |
145 | States. |
146 |
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147 | Clerk of Court |
148 | (4) If an address for the judgment holder was provided |
149 | under s. 55.10(1), the clerk shall formally send a copy of the |
150 | satisfaction to the judgment holder at that address by certified |
151 | mail with return receipt or by registered mail if the notice is |
152 | to be sent outside the continental United States. If an address |
153 | is not provided under s. 55.10(1) or if delivery cannot be |
154 | effected to such address, the clerk may, but is not obligated |
155 | to, make reasonable attempts to locate the judgment holder. The |
156 | discharge of the lien by the issuance of the satisfaction is not |
157 | dependent upon the delivery of notice by the clerk. |
158 | (5) Upon application of the judgment holder, the clerk |
159 | shall pay over to the judgment holder the full amount of the |
160 | payment received, less the clerk's fees for issuing execution on |
161 | such judgment, if any has been issued; less the clerk's fees for |
162 | receiving into and paying out of the registry of the court such |
163 | payment; less the clerk's fees for recording the satisfaction of |
164 | judgment; and, if the clerk incurred expenses in locating the |
165 | judgment holder, less the reasonable expenses so incurred. |
166 | (3) Full payment of judgments and decrees as in the |
167 | preceding subsections of this section provided shall constitute |
168 | full payment and satisfaction thereof and any lien created by |
169 | such judgment or decree shall thereupon be satisfied and |
170 | discharged. |
171 | Section 2. Subsections (2) and (3) of section 55.202, |
172 | Florida Statutes, are amended to read: |
173 | 55.202 Judgments, orders, and decrees; lien on personal |
174 | property.-- |
175 | (2) A judgment lien may be acquired on a judgment debtor's |
176 | interest in all personal property in this state subject to |
177 | execution under s. 56.061, other than fixtures, money, |
178 | negotiable instruments, and mortgages. |
179 | (a) A judgment lien is acquired by filing a judgment lien |
180 | certificate in accordance with s. 55.203 with the Department of |
181 | State after the judgment has become final and if the time to |
182 | move for rehearing has lapsed, no motion for rehearing is |
183 | pending, and no stay of the judgment or its enforcement is then |
184 | in effect. A court may authorize, for cause shown, the filing of |
185 | a judgment lien certificate before a judgment has become final |
186 | when the court has authorized the issuance of a writ of |
187 | execution in the same matter. A judgment lien certificate not |
188 | filed in compliance with this subsection is permanently void and |
189 | of no effect. |
190 | (b) For any lien, warrant, assessment, or judgment |
191 | collected by the Department of Revenue, a judgment lien may be |
192 | acquired by filing the judgment lien certificate information or |
193 | warrant with the Department of State in accordance with |
194 | subsection (5). |
195 | (c) Except as provided in s. 55.208, the effective date of |
196 | a judgment lien is the date, including the time of day, of |
197 | filing. Although no lien attaches to property, and a creditor |
198 | does not become a lien creditor as to liens under chapter 679, |
199 | until the debtor acquires an interest in the property, priority |
200 | among competing judgment liens is determined in order of filing |
201 | date and time. |
202 | (d) Except as provided in s. 55.204(3), a judgment |
203 | creditor may file only one effective judgment lien certificate |
204 | based upon a particular judgment. |
205 | (3) Except as otherwise provided in s. 55.208, the |
206 | priority of a judgment lien acquired in accordance with this |
207 | section or s. 55.204(3) is established at the date and time the |
208 | judgment lien certificate is filed. |
209 | Section 3. Subsections (4) and (6) of section 55.204, |
210 | Florida Statutes, are amended to read: |
211 | 55.204 Duration and continuation of judgment lien; |
212 | destruction of records.-- |
213 | (4) A judgment lien continues only as to itemized property |
214 | for an additional 90 days after lapse of the lien. Such judgment |
215 | lien will continue only if: |
216 | (a) The property had been itemized and its location |
217 | described with sufficient particularity in the instructions for |
218 | levy to permit the sheriff to act; |
219 | (b) The instructions for the levy had been delivered to |
220 | the sheriff prior to the date of lapse of the lien to permit the |
221 | sheriff to act; and |
222 | (c) The property was located in the county in which the |
223 | sheriff has jurisdiction at the time of delivery of the |
224 | instruction for levy. Subsequent removal of the property does |
225 | not defeat the lien. A court may order continuation of the lien |
226 | beyond the 90-day period on a showing that extraordinary |
227 | circumstances have prevented levy. |
228 | (6) If no second judgment lien is filed, the Department of |
229 | State shall maintain each judgment lien file and all information |
230 | contained therein for a minimum of 1 year after the judgment |
231 | lien lapses in accordance with this section. If a second |
232 | judgment lien is filed, the department shall maintain both files |
233 | and all information contained in such files for a minimum of 1 |
234 | year after the second judgment lien lapses. |
235 | Section 4. Subsection (1) of section 55.205, Florida |
236 | Statutes, is amended to read: |
237 | 55.205 Effect of judgment lien.-- |
238 | (1) A valid judgment lien gives the judgment creditor the |
239 | right to proceed against the property of the debtor through writ |
240 | of execution, garnishment, or other judicial process. A judgment |
241 | creditor who has not acquired a judgment lien as provided in s. |
242 | 55.202 or whose lien has lapsed may nevertheless proceed against |
243 | the judgment debtor's property through any appropriate other |
244 | judicial process. Such judgment creditor proceeding by writ of |
245 | execution acquires a lien as of the time of levy and only on the |
246 | property levied upon. Except as provided in s. 55.208, such |
247 | judgment creditor takes subject to the claims and interest of |
248 | priority judgment creditors. |
249 | Section 5. Subsection (2) of section 55.602, Florida |
250 | Statutes, 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 |
253 | of a foreign state granting or denying recovery of a sum of |
254 | money, other than a judgment for taxes, a fine, or other |
255 | penalty. |
256 | Section 6. Section 55.603, Florida Statutes, is amended to |
257 | read: |
258 | 55.603 Applicability.--This act applies to any out-of- |
259 | out-of-country foreign judgment that is final and conclusive and |
260 | enforceable where rendered, even though an appeal therefrom is |
261 | pending or is subject to appeal. |
262 | Section 7. Section 55.604, Florida Statutes, is amended to |
263 | read: |
264 | 55.604 Recognition and enforcement.--Except as provided in |
265 | s. 55.605, an out-of-country a foreign judgment meeting the |
266 | requirements of s. 55.603 is conclusive between the parties to |
267 | the extent that it grants or denies recovery of a sum of money. |
268 | Procedures for recognition and enforceability of an out-of- |
269 | country a foreign judgment shall be as follows: |
270 | (1) The out-of-country foreign judgment shall be filed |
271 | with the clerk of the court and recorded in the public records |
272 | in the county or counties where enforcement is sought. |
273 | (a) At the time of the recording of an out-of-country a |
274 | foreign judgment, the judgment creditor shall make and record |
275 | with the clerk of the circuit court an affidavit setting forth |
276 | the name, social security number, if known, and last known post- |
277 | office address of the judgment debtor and of the judgment |
278 | creditor. |
279 | (b) Promptly upon the recording of the out-of-country |
280 | foreign judgment and the affidavit, the clerk shall mail notice |
281 | of the recording of the out-of-country foreign judgment, by |
282 | registered mail with return receipt requested, to the judgment |
283 | debtor at the address given in the affidavit and shall make a |
284 | note of the mailing in the docket. The notice shall include the |
285 | name and address of the judgment creditor and of the judgment |
286 | creditor's attorney, if any, in this state. In addition, the |
287 | judgment creditor may mail a notice of the recording of the |
288 | judgment to the judgment debtor and may record proof of mailing |
289 | with the clerk. The failure of the clerk to mail notice of |
290 | recording will not affect the enforcement proceedings if proof |
291 | of mailing by the judgment creditor has been recorded. |
292 | (2) The judgment debtor shall have 30 days after service |
293 | of the notice to file a notice of objection with the clerk of |
294 | the court specifying the grounds for nonrecognition or |
295 | nonenforceability under this act. |
296 | (3) Upon the application of any party, and after proper |
297 | notice, the circuit court shall have jurisdiction to conduct a |
298 | hearing, determine the issues, and enter an appropriate order |
299 | granting or denying recognition in accordance with the terms of |
300 | this act. |
301 | (4) If the judgment debtor fails to file a notice of |
302 | objection within the required time, the clerk of the court shall |
303 | record a certificate stating that no objection has been filed. |
304 | (5) Upon entry of an order recognizing the out-of-country |
305 | foreign judgment, or upon recording of the clerk's certificate |
306 | set forth above, the out-of-country foreign judgment shall be |
307 | enforced in the same manner as the judgment of a court of this |
308 | state. |
309 | (6) Once an order recognizing the out-of-country foreign |
310 | judgment has been entered by a court of this state, the order |
311 | and a copy of the judgment may be recorded in any other county |
312 | of this state without further notice or proceedings, and shall |
313 | be enforceable in the same manner as the judgment of a court of |
314 | this state. |
315 | (7) A lien on real estate in any county shall be created |
316 | only when there has been recorded in the official records of the |
317 | county (a) a certified copy of the judgment, and (b) a copy of |
318 | the clerk's certificate or the order recognizing the out-of- |
319 | country foreign judgment. The priority of such lien will be |
320 | established as of the time the latter of the two recordings has |
321 | occurred. Such lien may be partially released or satisfied by |
322 | the person designated pursuant to paragraph (1). |
323 | (8) A judgment lien on personal property is acquired only |
324 | when a judgment lien certificate is filed in accordance with s. |
325 | 55.203 with the Department of State. |
326 | Section 8. Section 55.605, Florida Statutes, is amended to |
327 | read: |
328 | 55.605 Grounds for nonrecognition.-- |
329 | (1) An out-of-country A foreign judgment is not conclusive |
330 | if: |
331 | (a) The judgment was rendered under a system which does |
332 | not provide impartial tribunals or procedures compatible with |
333 | the requirements of due process of law. |
334 | (b) The foreign court did not have personal jurisdiction |
335 | over the defendant. |
336 | (c) The foreign court did not have jurisdiction over the |
337 | subject matter. |
338 | (2) An out-of-country A foreign judgment need not be |
339 | recognized if: |
340 | (a) The defendant in the proceedings in the foreign court |
341 | did not receive notice of the proceedings in sufficient time to |
342 | enable 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 |
345 | judgment is based is repugnant to the public policy of this |
346 | state. |
347 | (d) The judgment conflicts with another final and |
348 | conclusive order. |
349 | (e) The proceeding in the foreign court was contrary to an |
350 | agreement between the parties under which the dispute in |
351 | question was to be settled otherwise than by proceedings in that |
352 | court. |
353 | (f) In the case of jurisdiction based only on personal |
354 | service, the foreign court was a seriously inconvenient forum |
355 | for the trial of the action. |
356 | (g) The foreign jurisdiction where judgment was rendered |
357 | would not give recognition to a similar judgment rendered in |
358 | this state. |
359 | Section 9. Section 55.606, Florida Statutes, is amended to |
360 | read: |
361 | 55.606 Personal jurisdiction.--The out-of-country foreign |
362 | judgment shall not be refused recognition for lack of personal |
363 | jurisdiction if: |
364 | (1) The defendant was served personally in the foreign |
365 | state; |
366 | (2) The defendant voluntarily appeared in the proceedings, |
367 | other than for the purpose of protecting property seized or |
368 | threatened with seizure in the proceedings or of contesting the |
369 | jurisdiction of the court over him or her; |
370 | (3) The defendant, prior to the commencement of the |
371 | proceedings, had agreed to submit to the jurisdiction of the |
372 | foreign court with respect to the subject matter involved; |
373 | (4) The defendant was domiciled in the foreign state when |
374 | the proceedings were instituted, or, being a body corporate, had |
375 | its principal place of business, was incorporated, or had |
376 | otherwise acquired corporate status, in the foreign state; |
377 | (5) The defendant had a business office in the foreign |
378 | state and the proceedings in the foreign court involved a cause |
379 | of action or a claim for relief arising out of business done by |
380 | the defendant through that office in the foreign state; or |
381 | (6) The defendant operated a motor vehicle or airplane in |
382 | the foreign state and the proceedings involved a cause of action |
383 | or claim for relief arising out of such operation. |
384 | Section 10. Effective October 1, 2005, section 56.21, |
385 | Florida Statutes, is amended to read: |
386 | 56.21 Execution sales; notice.--Notice of all sales under |
387 | execution shall be given by advertisement once each week for 4 |
388 | successive weeks in a newspaper published in the county in which |
389 | the sale is to take place. The time of such notice may be |
390 | shortened in the discretion of the court from which the |
391 | execution issued, upon affidavit that the property to be sold is |
392 | subject to decay and will not sell for its full value if held |
393 | until date of sale. On or before the date of the first |
394 | publication or posting of the notice of sale, a copy of the |
395 | notice of sale shall be furnished by certified mail to the |
396 | attorney of record of the judgment debtor, or to the judgment |
397 | debtor at the judgment debtor's last known address if the |
398 | judgment debtor does not have an attorney of record. Such copy |
399 | of the notice of sale shall be mailed even though a default |
400 | judgment was entered. When levying upon personal property, a |
401 | notice of such levy and execution sale and a copy of the |
402 | affidavit required by s. 56.27(4) shall be sent by the sheriff |
403 | made by the levying creditor to the attorneys attorney of record |
404 | of all the judgment creditors, creditor or to all the judgment |
405 | creditors who do not have an attorney of record, creditor who |
406 | have has acquired a judgment lien as provided in s. 55.202 or s. |
407 | 55.204(3), and whose liens have not lapsed at the time of levy, |
408 | at the address listed in the judgment lien certificate, or, if |
409 | amended, in any amendment to the judgment lien certificate, and |
410 | to all secured creditors who have filed financing statements as |
411 | provided in part V of chapter 679 s. 679.401 in the name of the |
412 | judgment debtor reflecting a security interest in property of |
413 | the kind to be sold at the execution sale at the address listed |
414 | in the financing statement, or, if amended, in any amendment to |
415 | the financing statement. Such notice shall be made in the same |
416 | manner as notice is made to any judgment debtor under this |
417 | section. When levying upon real property, notice of such levy |
418 | and execution sale shall be made to the property owner of record |
419 | in the same manner as notice is made to any judgment debtor |
420 | pursuant to this section. When selling real or personal |
421 | property, the sale date shall not be earlier than 30 days after |
422 | the date of the first advertisement. |
423 | Section 11. Subsections (1), (2), and (4) of section |
424 | 56.27, 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 |
427 | the order prescribed, to the following: the sheriff, for costs; |
428 | the levying creditor in the amount of $500 as liquidated |
429 | expenses; if the levy is upon real property, the first priority |
430 | lienholder under s. 55.10; and if the levy is upon personal |
431 | property, and the first priority lienholder under s. 55.202, s. |
432 | 55.204(3), or s. 55.208(2), as set forth in an affidavit |
433 | required by subsection (4), or his or her attorney, in |
434 | satisfaction of the judgment lien, provided that the judgment |
435 | lien has not lapsed at the time of the levy. The receipt of the |
436 | attorney shall be a release of the officer paying the money to |
437 | him or her. When the name of more than one attorney appears in |
438 | the court file, the money shall be paid to the attorney who |
439 | originally commenced the action or who made the original defense |
440 | unless the file shows that another attorney has been |
441 | substituted. |
442 | (2) When property sold under execution brings more than |
443 | the amount needed to satisfy the provisions of subsection (1), |
444 | the surplus shall be paid in the order of priority to any |
445 | judgment lienholders whose judgment liens have not lapsed. |
446 | Priority of liens on personal property shall be based on the |
447 | effective date of the judgment lien acquired under s. 55.202, s. |
448 | 55.204(3), or s. 55.208(2), as set forth in an affidavit |
449 | required under subsection (4). If there is a surplus after all |
450 | valid judgment liens and execution liens have been satisfied, |
451 | the surplus must be paid to the defendant. |
452 | (4) On or Before the date of the first publication or |
453 | posting of the notice of sale provided for under s. 56.21, the |
454 | levying creditor shall deliver to the sheriff file an affidavit |
455 | setting forth the following as to the judgment debtor: |
456 | (a) An attestation that the levying creditor has reviewed |
457 | the database or judgment lien records established in accordance |
458 | with ss. 55.201-55.209 and that the information contained in the |
459 | affidavit based on that review is true and correct; |
460 | (b) The information required under s. 55.203(1) and (2) |
461 | for each judgment lien certificate indexed under the name of the |
462 | judgment debtor as to each judgment creditor; the file number |
463 | assigned to the record of the original and, if any, the second |
464 | judgment lien; and the date of filing for each judgment lien |
465 | certificate under s. 55.202 or s. 55.204(3); and |
466 | (c) A statement that the levying creditor either does not |
467 | have any other levy in process or, if another levy is in |
468 | process, the levying creditor believes in good faith that the |
469 | total value of the property under execution does not exceed the |
470 | amount of outstanding judgments. |
471 | Section 12. Subsection (1) of section 56.29, Florida |
472 | Statutes, is amended to read: |
473 | 56.29 Proceedings supplementary.-- |
474 | (1) When any person or entity holds an unsatisfied |
475 | judgment or judgment lien obtained under chapter 55 execution |
476 | and has delivered a writ of execution to any sheriff, the |
477 | judgment holder or judgment lienholder plaintiff in execution |
478 | may file an affidavit so stating, identifying, if applicable, |
479 | the issuing court, the case number, and the unsatisfied amount |
480 | of the judgment or judgment lien, including accrued costs and |
481 | interest, and stating that the execution is valid and |
482 | outstanding, and thereupon the judgment holder or judgment |
483 | lienholder is entitled to these proceedings supplementary to |
484 | execution. |
485 | Section 13. Section 77.03, Florida Statutes, is amended to |
486 | read: |
487 | 77.03 Issuance of writ after judgment.--After judgment has |
488 | been obtained against defendant but before the writ of |
489 | garnishment is issued, the plaintiff, the plaintiff's agent or |
490 | attorney, shall file a motion (which shall not be verified or |
491 | negative defendant's exemptions) stating the amount of the |
492 | judgment and that movant does not believe that defendant has in |
493 | his or her possession visible property on which a levy can be |
494 | made sufficient to satisfy the judgment. The motion may be filed |
495 | and the writ issued either before or after the return of |
496 | execution. |
497 | Section 14. Section 77.04, Florida Statutes, is amended to |
498 | read: |
499 | 77.04 Writ; form.--The writ shall require the garnishee to |
500 | serve an answer to it on plaintiff within 20 days after service |
501 | stating whether he or she is indebted to defendant at the time |
502 | of the answer, or was indebted at the time of service of the |
503 | writ, plus sufficient time not to exceed 1 business day for the |
504 | garnishee to act expeditiously on the writ, or at any time |
505 | between such times; and in what sum and what tangible or |
506 | intangible personal property of defendant the garnishee has in |
507 | his or her possession or control at the time of his or her |
508 | answer, or had at the time of the service of the writ, or at any |
509 | time between such times; and whether the garnishee knows of any |
510 | other person indebted to defendant, or who may have any of the |
511 | property of defendant in his or her possession or control. The |
512 | writ shall state the amount named in plaintiff's motion. |
513 | Section 15. Subsections (1) and (3) of section 77.041, |
514 | Florida Statutes, are amended to read: |
515 | 77.041 Notice to individual defendant for claim of |
516 | exemption from garnishment; procedure for hearing.-- |
517 | (1) Upon application for a writ of garnishment by a |
518 | plaintiff, if the defendant is an individual, the clerk of the |
519 | court shall attach to the writ the following "Notice to |
520 | Defendant": |
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 |
527 | means that wages, money, and other property belonging to you |
528 | have been garnished to pay a court judgment against you. |
529 | HOWEVER, YOU MAY BE ABLE TO KEEP OR RECOVER YOUR WAGES, MONEY, |
530 | OR PROPERTY. READ THIS NOTICE CAREFULLY. |
531 | State and federal laws provide that certain wages, money, |
532 | and property, even if deposited in a bank, savings and loan, or |
533 | credit union, may not be taken to pay certain types of court |
534 | judgments. Such wages, money, and property are exempt from |
535 | garnishment. The major exemptions are listed below on the form |
536 | for Claim of Exemption and Request for Hearing. This list does |
537 | not include all possible exemptions. You should consult a lawyer |
538 | for specific advice. |
539 |
|
540 | TO KEEP YOUR WAGES, MONEY, AND OTHER PROPERTY FROM |
541 | BEING GARNISHED, OR TO GET BACK ANYTHING ALREADY |
542 | TAKEN, YOU MUST COMPLETE A FORM FOR CLAIM OF EXEMPTION |
543 | AND REQUEST FOR HEARING AS SET FORTH BELOW AND HAVE |
544 | THE FORM NOTARIZED. YOU MUST FILE THE FORM WITH THE |
545 | CLERK'S OFFICE WITHIN 20 DAYS AFTER THE DATE YOU |
546 | RECEIVE THIS NOTICE OR YOU MAY LOSE IMPORTANT RIGHTS. |
547 | YOU MUST ALSO MAIL OR DELIVER A COPY OF THIS FORM TO |
548 | THE PLAINTIFF AND THE GARNISHEE AT THE ADDRESSES |
549 | LISTED ON THE WRIT OF GARNISHMENT. |
550 |
|
551 | If you request a hearing, it will be held as soon as |
552 | possible after your request is received by the court. The |
553 | plaintiff must file any objection within 3 2 business days if |
554 | you hand delivered to the plaintiff a copy of the form for Claim |
555 | of Exemption and Request for Hearing or, alternatively, 8 |
556 | business 7 days if you mailed a copy of the form for claim and |
557 | request to the plaintiff. If the plaintiff files an objection to |
558 | your Claim of Exemption and Request for Hearing, the clerk will |
559 | notify you and the other parties of the time and date of the |
560 | hearing. You may attend the hearing with or without an attorney. |
561 | If the plaintiff fails to file an objection, no hearing is |
562 | required, the writ of garnishment will be dissolved and your |
563 | wages, money, or property will be released. |
564 |
|
565 | YOU SHOULD FILE THE FORM FOR CLAIM OF EXEMPTION |
566 | IMMEDIATELY TO KEEP YOUR WAGES, MONEY, OR PROPERTY |
567 | FROM BEING APPLIED TO THE COURT JUDGMENT. THE CLERK |
568 | CANNOT GIVE YOU LEGAL ADVICE. IF YOU NEED LEGAL |
569 | ASSISTANCE YOU SHOULD SEE A LAWYER. IF YOU CANNOT |
570 | AFFORD A PRIVATE LAWYER, LEGAL SERVICES MAY BE |
571 | AVAILABLE. CONTACT YOUR LOCAL BAR ASSOCIATION OR ASK |
572 | THE CLERK'S OFFICE ABOUT ANY LEGAL SERVICES PROGRAM IN |
573 | YOUR AREA. |
574 |
|
575 | CLAIM OF EXEMPTION AND |
576 | REQUEST FOR HEARING |
577 |
|
578 | I claim exemptions from garnishment under the following |
579 | categories 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 |
582 | or other dependent and have net earnings of $500 or less per |
583 | week. |
584 | _____b. I provide more than one-half of the support for a child |
585 | or other dependent, have net earnings of more than $500 per |
586 | week, 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 |
595 | life 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 |
|
601 | I request a hearing to decide the validity of my claim. Notice |
602 | of the hearing should be given to me at: |
603 |
|
604 | Address:________________________________ |
605 |
|
606 | Telephone number:________________________ |
607 |
|
608 | The statements made in this request are true to the best of my |
609 | knowledge and belief. |
610 |
|
611 | ________________________________ |
612 | Defendant's signature |
613 |
|
614 | Date________________________________ |
615 |
|
616 | STATE OF FLORIDA |
617 |
|
618 | COUNTY OF |
619 |
|
620 | Sworn and subscribed to before me this ________ day of (month |
621 | and year), by (name of person making statement) |
622 |
|
623 | Notary Public/Deputy Clerk |
624 |
|
625 | Personally Known ________OR Produced Identification____ |
626 |
|
627 | Type of Identification Produced____________________ |
628 |
|
629 | (3) Upon the filing by a defendant of a claim of exemption |
630 | and request for hearing, a hearing will be held as soon as is |
631 | practicable to determine the validity of the claimed exemptions. |
632 | If the plaintiff does not file a sworn written statement that |
633 | contests the defendant's claim of exemption within 3 2 business |
634 | days after hand delivering the claim and request or, |
635 | alternatively, 8 7 business days, if the claim and request were |
636 | served by mail, no hearing is required and the clerk must |
637 | automatically dissolve the writ and notify the parties of the |
638 | dissolution by mail. |
639 | Section 16. Subsection (5) is added to section 77.07, |
640 | Florida Statutes, to read: |
641 | 77.07 Dissolution of writ.-- |
642 | (5) If the plaintiff fails to file a dismissal or motion |
643 | for final judgment within 6 months after filing the writ of |
644 | garnishment, the writ shall automatically be dissolved and the |
645 | garnishee shall be discharged from further liability under the |
646 | writ. The plaintiff has the right to extend the writ for an |
647 | additional 6 months by serving the garnishee and the defendant a |
648 | notice of extension and filing in the underlying proceeding a |
649 | certification of such service. |
650 | Section 17. Subsections (2) and (4) of section 222.01, |
651 | Florida 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 |
654 | the public records of a county pursuant to chapter 55 s. 55.10, |
655 | a person who is entitled to the benefit of the provisions of the |
656 | State Constitution exempting real property as homestead and who |
657 | has a contract to sell or a commitment from a lender for a |
658 | mortgage on the homestead may file a notice of homestead in the |
659 | public records of the county in which the homestead property is |
660 | located in substantially the following form: |
661 |
|
662 | NOTICE OF HOMESTEAD |
663 |
|
664 | To: (Name and address of judgment creditor as shown |
665 | on recorded judgment and name and address of any other |
666 | person shown in the recorded judgment to receive a |
667 | copy of the Notice of Homestead). |
668 |
|
669 | You are notified that the undersigned claims as |
670 | homestead exempt from levy and execution under Section |
671 | 4, Article X of the State Constitution, the following |
672 | described property: |
673 |
|
674 | (Legal description) |
675 |
|
676 | The undersigned certifies, under oath, that he or she |
677 | has applied for and received the homestead tax |
678 | exemption as to the above-described property, that |
679 | ____ is the tax identification parcel number of this |
680 | property, and that the undersigned has resided on this |
681 | property continuously and uninterruptedly from (date) |
682 | to the date of this Notice of Homestead. Further, the |
683 | undersigned will either convey or mortgage the above- |
684 | described property pursuant to the following: |
685 |
|
686 | (Describe the contract of sale or loan commitment by |
687 | date, names of parties, date of anticipated closing, |
688 | and amount. The name, address, and telephone number of |
689 | the person conducting the anticipated closing must be |
690 | set forth.) |
691 |
|
692 | The undersigned also certifies, under oath, that the |
693 | judgment lien filed by you on (date) and recorded in |
694 | Official Records Book ____, Page ____, of the Public |
695 | Records of ________ County, Florida, does not |
696 | constitute a valid lien on the described property. |
697 |
|
698 | YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION 222.01 |
699 | ET SEQ., FLORIDA STATUTES, THAT WITHIN 45 DAYS AFTER |
700 | THE MAILING OF THIS NOTICE YOU MUST FILE AN ACTION IN |
701 | THE CIRCUIT COURT OF ________ COUNTY, FLORIDA, FOR A |
702 | DECLARATORY JUDGMENT TO DETERMINE THE CONSTITUTIONAL |
703 | HOMESTEAD STATUS OF THE SUBJECT PROPERTY OR TO |
704 | FORECLOSE YOUR JUDGMENT LIEN ON THE PROPERTY AND |
705 | RECORD A LIS PENDENS IN THE PUBLIC RECORDS OF THE |
706 | COUNTY WHERE THE HOMESTEAD IS LOCATED. YOUR FAILURE TO |
707 | SO ACT WILL RESULT IN ANY BUYER OR LENDER, OR HIS OR |
708 | HER SUCCESSORS AND ASSIGNS, UNDER THE ABOVE-DESCRIBED |
709 | CONTRACT OF SALE OR LOAN COMMITMENT TO TAKE FREE AND |
710 | CLEAR OF ANY JUDGMENT LIEN YOU MAY HAVE ON THE |
711 | PROPERTY. |
712 |
|
713 | This ____ day of ____________, 2____. |
714 | ________________________ |
715 | (Signature of Owner) |
716 |
|
717 | ________________________ |
718 | (Printed Name of Owner) |
719 |
|
720 | ________________________ |
721 | (Owner's Address) |
722 |
|
723 | Sworn to and subscribed before me by |
724 | ________________________ who is personally |
725 | known to me or produced |
726 | ________________________ as identification, |
727 | this ____ day of ____________, 2____ |
728 |
|
729 | ________________________ |
730 | Notary Public |
731 |
|
732 | (4) A lien pursuant to chapter 55 s. 55.10 of any lienor |
733 | upon whom such notice is served, who fails to institute an |
734 | action for a declaratory judgment to determine the |
735 | constitutional homestead status of the property described in the |
736 | notice of homestead or to file an action to foreclose the |
737 | judgment lien, together with the filing of a lis pendens in the |
738 | public records of the county in which the homestead is located, |
739 | within 45 days after service of such notice shall be deemed as |
740 | not attaching to the property by virtue of its status as |
741 | homestead property as to the interest of any buyer or lender, or |
742 | his or her successors or assigns, who takes under the contract |
743 | of sale or loan commitment described above within 180 days after |
744 | the filing in the public records of the notice of homestead. |
745 | This subsection shall not act to prohibit a lien from attaching |
746 | to the real property described in the notice of homestead at |
747 | such 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; |
751 | notation on certificate; recording of lien.-- |
752 | (2) No lien for purchase money or as security for a debt |
753 | in the form of a security agreement, retain title contract, |
754 | conditional bill of sale, chattel mortgage, or other similar |
755 | instrument or any other nonpossessory lien, including a lien for |
756 | child support, upon a motor vehicle or mobile home upon which a |
757 | Florida certificate of title has been issued shall be |
758 | enforceable in any of the courts of this state against creditors |
759 | or subsequent purchasers for a valuable consideration and |
760 | without notice, unless a sworn notice of such lien has been |
761 | filed in the department and such lien has been noted upon the |
762 | certificate of title of the motor vehicle or mobile home. Such |
763 | notice shall be effective as constructive notice when filed. The |
764 | No interest of a statutory nonpossessory lienor; the interest of |
765 | a nonpossessory execution, attachment, or equitable lienor; or |
766 | the interest of a lien creditor as defined in s. 679.1021(1)(zz) |
767 | 679.301(3), if nonpossessory, shall not be enforceable against |
768 | creditors or subsequent purchasers for a valuable consideration |
769 | unless such interest becomes a possessory lien or is noted upon |
770 | the certificate of title for the subject motor vehicle or mobile |
771 | home prior to the occurrence of the subsequent transaction. |
772 | Provided the provisions of this subsection relating to a |
773 | nonpossessory statutory lienor; a nonpossessory execution, |
774 | attachment, or equitable lienor; or the interest of a lien |
775 | creditor as defined in s. 679.1021(1)(zz) 679.301(3) shall not |
776 | apply to liens validly perfected prior to October 1, 1988. The |
777 | notice of lien shall provide the following information: |
778 | (a) The date of the lien if a security agreement, retain |
779 | title contract, conditional bill of sale, chattel mortgage, or |
780 | other similar instrument was executed prior to the filing of the |
781 | notice of lien; |
782 | (b) The name and address of the registered owner; |
783 | (c) A description of the motor vehicle or mobile home, |
784 | showing 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 |
788 | of a secured party under this chapter and a lien creditor as |
789 | defined by s. 679.1021(1)(zz) 679.301(3), or a nonpossessory |
790 | statutory lienor, a security interest under this chapter shall |
791 | be perfected upon the filing of the notice of lien with the |
792 | department, the county tax collector, or their agents. Provided, |
793 | however, the date of perfection of a security interest of such |
794 | secured party shall be the same date as the execution of the |
795 | security agreement or other similar instrument if the notice of |
796 | lien is filed in accordance with this subsection within 15 days |
797 | after the debtor receives possession of the motor vehicle or |
798 | mobile home and executes such security agreement or other |
799 | similar instrument. The date of filing of the notice of lien |
800 | shall be the date of its receipt by the department central |
801 | office in Tallahassee, if first filed there, or otherwise by the |
802 | office of the county tax collector, or their agents. |
803 | Section 19. Paragraph (zz) of subsection (1) of section |
804 | 679.1021, 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 |
809 | involved by attachment, levy, judgment lien certificate, or the |
810 | like; |
811 | 2. An assignee for benefit of creditors from the time of |
812 | assignment; |
813 | 3. A trustee in bankruptcy from the date of the filing of |
814 | the petition; or |
815 | 4. A receiver in equity from the time of appointment. |
816 | Section 20. Section 701.02, Florida Statutes, is amended |
817 | to read: |
818 | 701.02 Assignment not effectual against creditors unless |
819 | recorded and indicated in title of document; applicability.-- |
820 | (1) An No assignment of a mortgage upon real property or |
821 | of any interest therein is not, shall be good or effectual in |
822 | law or equity, against creditors or subsequent purchasers, for a |
823 | valuable consideration, and without notice, unless the |
824 | assignment is contained in a document that which, in its title, |
825 | indicates an assignment of mortgage and is recorded according to |
826 | law. |
827 | (2) The provisions of This section shall also applies |
828 | extend to assignments of mortgages resulting from transfers of |
829 | all or any part or parts of the debt, note or notes secured by |
830 | mortgage, and none of same is shall be effectual in law or in |
831 | equity against creditors or subsequent purchasers for a valuable |
832 | consideration without notice, unless a duly executed assignment |
833 | be recorded according to law. |
834 | (3) Any assignment of a mortgage, duly executed and |
835 | recorded according to law, purporting to assign the principal of |
836 | the mortgage debt or the unpaid balance of such principal, |
837 | shall, as against subsequent purchasers and creditors for value |
838 | and without notice, be held and deemed to assign any and all |
839 | accrued and unpaid interest secured by such mortgage, unless |
840 | such interest is shall be specifically and affirmatively |
841 | reserved in such an assignment by the assignor, and a no |
842 | reservation of such interest or any part thereof may not shall |
843 | be implied. |
844 | (4) Notwithstanding subsections (1), (2), and (3) |
845 | governing the assignment of mortgages, the provisions of the |
846 | Uniform Commercial Code of this state, chapters 670-680, govern |
847 | the attachment and perfection of a security interest in a |
848 | mortgage upon real property and in a promissory note or other |
849 | right to payment or performance secured by that mortgage. The |
850 | assignment of such a mortgage need not be recorded under this |
851 | section for purposes of attachment or perfection of a security |
852 | interest in the mortgage under the Uniform Commercial Code. |
853 | (5) Notwithstanding subsection (4), a creditor or |
854 | subsequent purchaser of real property or any interest therein, |
855 | for valuable consideration and without notice, is entitled to |
856 | rely on a full or partial release, discharge, consent, joinder, |
857 | subordination, satisfaction, or assignment of a mortgage upon |
858 | such property made by the mortgagee of record, without regard to |
859 | the filing of any Uniform Commercial Code financing statement |
860 | that purports to perfect a security interest in the mortgage or |
861 | in a promissory note or other right to payment or performance |
862 | secured by the mortgage, and the filing of any such financing |
863 | statement does not constitute notice for the purposes of this |
864 | section. For the purposes of this subsection, the term |
865 | "mortgagee of record" means the person named as the mortgagee in |
866 | the recorded mortgage or, if an assignment of the mortgage has |
867 | been recorded in accordance with this section, the term |
868 | "mortgagee of record" means the assignee named in the recorded |
869 | assignment. |
870 | Section 21. Subsection (5) is added to section 817.801, |
871 | Florida Statutes, to read: |
872 | 817.801 Definitions.--As used in this part: |
873 | (5) "Creditor contribution" means any sum that a creditor |
874 | agrees to contribute to a credit counseling agency, whether |
875 | directly or by setoff to amounts otherwise payable to the |
876 | creditor on behalf of debtors. However, a creditor contribution |
877 | may not reduce any sums to be credited to the account of a |
878 | debtor making a payment to the credit counseling agency for |
879 | further payment to the creditor. |
880 | Section 22. Section 817.802, Florida Statutes, is amended |
881 | to read: |
882 | 817.802 Unlawful fees and costs.-- |
883 | (1) It is unlawful for any person, while engaging in debt |
884 | management services or credit counseling services, to charge or |
885 | accept from a debtor residing in this state, directly or |
886 | indirectly, a fee or contribution greater than $50 for the |
887 | initial setup or initial consultation. Subsequently, the person |
888 | may not charge or accept a fee or contribution from a debtor |
889 | residing in this state greater than $120 per year for additional |
890 | consultations or, alternatively, if debt management services as |
891 | defined in s. 817.801(2)(b) are provided, the person may charge |
892 | the greater of 15 7.5 percent of the amount paid monthly by the |
893 | debtor to the person or $25 $35 per month, not to exceed a total |
894 | of $50 per month. |
895 | (2) No provision of This section does not prohibit |
896 | prohibits any person, while engaging in debt management or |
897 | credit counseling services, from imposing upon and receiving |
898 | from a debtor a reasonable and separate charge or fee for |
899 | insufficient funds transactions. |
900 | Section 23. Paragraph (a) of subsection (1) of section |
901 | 817.804, Florida Statutes, is amended to read: |
902 | 817.804 Requirements; disclosure and financial |
903 | reporting.-- |
904 | (1) Any person engaged in debt management services or |
905 | credit counseling services shall: |
906 | (a) Obtain from a certified public accountant licensed |
907 | under s. 473.308 an annual audit that shall include of all |
908 | accounts of such person in which the funds of debtors are |
909 | deposited and from which payments are made to creditors on |
910 | behalf of debtors. |
911 | Section 24. Section 817.805, Florida Statutes, is amended |
912 | to read: |
913 | 817.805 Disbursement of funds.--Any person engaged in debt |
914 | management or credit counseling services shall disburse to the |
915 | appropriate creditors all funds received from a debtor, less any |
916 | fees permitted by s. 817.802 and any creditor contributions, |
917 | within 30 days after receipt of such funds. Further, any person |
918 | engaged in such services shall maintain a separate trust account |
919 | for the receipt of any funds from debtors each debtor and the |
920 | disbursement of such funds on behalf of such debtors debtor. |
921 | Section 25. Except as otherwise expressly provided in this |
922 | act, this act shall take effect upon becoming a law. |