HB 0427

CS

CHAMBER ACTION

1	The Justice Council recommends the following:
2
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
81	Be It Enacted by the Legislature of the State of Florida:
82
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
118	Satisfaction of Judgment by Clerk
119
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
137	Upon the execution of this satisfaction, said judgment is
138	satisfied and discharged.
139
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
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.

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