Florida Senate - 2006                      COMMITTEE AMENDMENT
    Bill No. SB 166
                        Barcode 384724
                            CHAMBER ACTION
              Senate                               House
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 1           Comm: FAV             .                    
       01/25/2006 05:53 PM         .                    
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11  The Committee on Judiciary (Campbell) recommended the
12  following amendment:
13  
14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16  
17  and insert:  
18         Section 1.  Subsection (7) of section 45.031, Florida
19  Statutes, is amended to read:
20         45.031  Judicial sales procedure.--In any sale of real
21  or personal property under an order or judgment, the following
22  procedure may be followed as an alternative to any other sale
23  procedure if so ordered by the court:
24         (7)  DISBURSEMENTS OF PROCEEDS.--
25         (a)  On filing a certificate of title, the clerk shall
26  disburse the proceeds of the sale in accordance with the order
27  or final judgment and shall file a report of such
28  disbursements and serve a copy of it on each party not in
29  default, and on the Department of Revenue if the department
30  was named as a defendant in the action or if the Agency for
31  Workforce Innovation or the former Department of Labor and
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    9:58 AM   01/24/06                             s0166d-ju32-j03

Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 166 Barcode 384724 1 Employment Security was named as a defendant while the 2 Department of Revenue was providing unemployment tax 3 collection services under contract with the Agency for 4 Workforce Innovation through an interagency agreement pursuant 5 to s. 443.1316., 6 (b) The certificate of disbursement shall be in 7 substantially the following form: 8 9 (Caption of Action) 10 11 CERTIFICATE OF DISBURSEMENTS 12 13 The undersigned clerk of the court certifies that he or 14 she disbursed the proceeds received from the sale of the 15 property as provided in the order or final judgment to the 16 persons and in the amounts as follows: 17 Name Amount 18 19 Total 20 21 WITNESS my hand and the seal of the court on ...., 22 ...(year).... 23 ...(Clerk)... 24 By ...(Deputy Clerk)... 25 (c) If no objections to the report are served within 26 10 days after it is filed, the disbursements by the clerk 27 shall stand approved as reported. If timely objections to the 28 report are served, they shall be heard by the court. Service 29 of objections to the report does not affect or cloud the title 30 of the purchaser of the property in any manner. 31 (d) If there are funds remaining after payment of all 2 9:58 AM 01/24/06 s0166d-ju32-j03
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 166 Barcode 384724 1 disbursements required by the final judgment of foreclosure 2 and shown on the certificate of disbursements, the provisions 3 of ss. 45.032 and 45.033 apply. 4 Section 2. Section 45.032, Florida Statutes, is 5 created to read: 6 45.032 Disbursement of surplus funds after judicial 7 sale.-- 8 (1) As used in this section and s. 45.033, the term: 9 (a) "Owner of record" means the person or persons who 10 appear to be the owner of the property on the date of the 11 filing of the lis pendens. The clerk need not perform a title 12 search and examination, but may rely on the plaintiff's 13 allegation of ownership in the complaint when determining the 14 owner of record. 15 (b) "Notice of surplus funds" means a document in 16 substantially the following form: 17 18 (Caption of Action) 19 20 NOTICE OF SURPLUS FUNDS 21 22 The undersigned clerk of the court certifies that he or 23 she disbursed the proceeds received from the sale of the 24 property as provided in the order or final judgment to the 25 persons named in the certificate of disbursements, and that 26 surplus funds of $___________ remain and are subject to 27 disbursement by the court. 28 It appears that ______________, as owner(s) of the 29 property at the time that the foreclosure was filed, (is/are) 30 entitled to payment of the surplus funds. The clerk of court 31 will pay the surplus funds to the owner(s) unless an objection 3 9:58 AM 01/24/06 s0166d-ju32-j03
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 166 Barcode 384724 1 to payment of the surplus funds is filed with the court on or 2 before ______________________. If an objection is timely 3 filed, a hearing will be set in order for the court to 4 determine who is entitled to receive the surplus funds. 5 IF YOU ARE AN INDIVIDUAL AND ARE THE OWNER OF THE 6 PROPERTY, YOU MAY CLAIM THESE FUNDS YOURSELF. YOU ARE NOT 7 REQUIRED TO HAVE A LAWYER OR ANY OTHER REPRESENTATION AND YOU 8 DO NOT HAVE TO ASSIGN YOUR RIGHTS TO ANYONE ELSE IN ORDER FOR 9 YOU TO CLAIM ANY MONEY TO WHICH YOU ARE ENTITLED. 10 11 WITNESS my hand and the seal of the court on _____, (year). 12 (Clerk) 13 By (Deputy Clerk) 14 15 (c) "Surplus funds" means the funds remaining after 16 payment of all disbursements required by the final judgment of 17 foreclosure and shown on the certificate of disbursements. 18 (2) There is established a legal presumption that the 19 owner of record on the date of the filing of a lis pendens is 20 the person entitled to surplus funds. The surplus funds shall 21 be paid to the owner of record on the date of the filing of 22 the lis pendens unless a court rules otherwise. 23 (3) If the surplus funds are less than $200, the clerk 24 shall, after deducting a service charge of $5, pay the surplus 25 funds to the owner of record. The payment instrument may be 26 furnished by regular mail to the last known address of the 27 owner of record. If the surplus funds are $200 or more, 28 subsections (4)-(9) apply. 29 (4) The clerk shall furnish a notice of surplus funds 30 by certified mail to the following persons: 31 (a) The owner of record. 4 9:58 AM 01/24/06 s0166d-ju32-j03
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 166 Barcode 384724 1 (b) All defendants in the action listed on the final 2 judgment of foreclosure, except that: 3 1. A defendant whose claim was paid in full as shown 4 on the certificate of disbursements need not be furnished a 5 notice of surplus funds. 6 2. Any defendant named by position and not by actual 7 name need not be furnished a notice of surplus funds. Examples 8 of such defendants include, but are not limited to, defendants 9 such as "unknown tenant" or "unknown heir." 10 (c) If a suggestion of bankruptcy was filed in the 11 action, the bankruptcy trustee. 12 (d) Any other person who appears from the record to be 13 a person who may be entitled to the surplus funds. The 14 plaintiff is not a person who is entitled to surplus funds and 15 need not be given a notice of surplus funds. 16 17 If the clerk is unsure who the owner of record is, the clerk 18 may write "unknown" on the form and send the notice of surplus 19 funds with a notice of hearing. The clerk may only receive one 20 service charge for the mailing. 21 (5) The clerk is entitled to a service charge of $5 22 for each notice of surplus funds. The clerk may draw the 23 service charge from the surplus funds upon mailing. 24 (6) Unless an objection is filed within 30 days after 25 the mailing of the notice of surplus funds, the clerk shall 26 pay the surplus funds to the owner of record. If the location 27 of the owner of record is unknown, the clerk may expend up to 28 $250 of the surplus funds to conduct or contract for a search 29 for the owner of record. If the search is unsuccessful and 30 more than 90 days has elapsed, the clerk shall treat the funds 31 as unclaimed property, which shall be deposited with the Chief 5 9:58 AM 01/24/06 s0166d-ju32-j03
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 166 Barcode 384724 1 Financial Officer pursuant to chapter 717. 2 (7) If an objection is filed or if the clerk is unable 3 to determine the owner of record, the court shall set a 4 hearing to determine the disposition of the surplus funds. The 5 clerk shall prepare a notice of the hearing and shall furnish 6 the notice by certified mail to all persons who have received 7 a notice of surplus funds and to any other person who has 8 requested notice of the hearing on surplus funds. The clerk is 9 entitled to an additional service charge of $5 per notice of 10 hearing, which may be drawn from the surplus funds. 11 (8) At the hearing, any person other than the owner of 12 record has the burden of proving that he or she is entitled to 13 some or all of the surplus funds. The court shall consider the 14 factors in s. 45.033 when hearing a claim that a person other 15 than the owner of record is entitled to the surplus funds. 16 (9) The clerk of court may collect an additional fee 17 of $25 from any surplus funds remaining in the court registry 18 following a foreclosure sale. The clerk shall use the proceeds 19 of such fee solely for purposes of educating the public as to 20 the rights of homeowners regarding foreclosure proceedings. 21 Section 3. Section 45.033, Florida Statutes, is 22 created to read: 23 45.033 Sale or assignment of rights to surplus 24 proceeds in a property subject to foreclosure.-- 25 (1) There is a rebuttable presumption that the owner 26 of real property as of the date of the filing of a lis pendens 27 is entitled to surplus funds available in a foreclosure of 28 that real property. 29 (2) Another person may rebut that presumption only by 30 proving that a transfer or assignment of the right to collect 31 the surplus funds, or any portion or percentage of the surplus 6 9:58 AM 01/24/06 s0166d-ju32-j03
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 166 Barcode 384724 1 funds, has been executed as required by this section. 2 (3) For a transfer or assignment to qualify as one 3 entitling the transferee or assignee to the surplus funds, or 4 any portion or percentage thereof, the instrument must: 5 (a) Be executed with the formality of a deed. 6 (b) Include a financial disclosure that specifies the 7 assessed value of the property and states that the assessed 8 value may be lower than the actual value of the property, the 9 approximate amount of any debt encumbering the property, and 10 the approximate amount of any equity in the property. 11 (c) Include a statement that the owner does not need 12 an attorney or other representative to recover surplus funds 13 in a foreclosure. 14 (d) Specify all forms of consideration paid for the 15 rights to the property or the assignment of the rights to any 16 surplus funds. 17 (4) A transfer or assignment that does not qualify 18 under subsection (3) may nevertheless qualify if the court 19 finds that the instrument was procured in good faith and with 20 no intent to defraud the transferee or assignee. 21 (5) A party who has executed a transfer or assignment 22 that does not conform to the requirements of this section may 23 petition the court presiding over the foreclosure proceeding 24 to set aside the nonconforming transfer or assignment. If the 25 transfer or assignment is set aside, the owner of record is 26 entitled to the surplus funds, but the other party may, in a 27 separate proceeding, seek rescission of the contract and 28 appropriate damages therein. The prevailing party in any 29 proceeding under this subsection is entitled to recover all 30 fees and costs incurred in connection with the proceeding, 31 including reasonable attorney's fees. 7 9:58 AM 01/24/06 s0166d-ju32-j03
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 166 Barcode 384724 1 (6) This section does not apply to a deed, mortgage, 2 or deed in lieu of foreclosure, unless a person other than the 3 owner of record is claiming that a deed or mortgage entitles 4 the person to surplus proceeds. This section does not affect 5 the title or marketability of the real property that is the 6 subject of the deed or other instrument. This section does not 7 affect the validity of a lien evidenced by a mortgage. 8 Section 4. Section 501.2078, Florida Statutes, is 9 created to read: 10 501.2078 Violations involving individual homeowners 11 during the course of residential foreclosure proceedings; 12 civil penalties.-- 13 (1) As used in this section, the term: 14 (a) "Residential foreclosure proceeding" means any 15 action in a circuit court of this state in which a party seeks 16 to foreclose on a mortgage encumbering the mortgagor's primary 17 dwelling. 18 (b) "Homeowner" means any individual who is the owner 19 of the property subject to a residential foreclosure 20 proceeding. 21 (2) Any person, other than a financial institution as 22 defined by s. 655.005, who willfully uses, or has willfully 23 used, a method, act, or practice in violation of this part, 24 which method, act, or practice victimizes or attempts to 25 victimize a homeowner during the course of a residential 26 foreclosure proceeding, and in committing such violation knew 27 or should have known that such conduct was unfair or 28 deceptive, is liable for a civil penalty of not more than 29 $15,000 for each such violation. 30 (3) Any order of restitution or reimbursement based on 31 a violation of this part committed against a homeowner in a 8 9:58 AM 01/24/06 s0166d-ju32-j03
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 166 Barcode 384724 1 residential foreclosure proceeding has priority over the 2 imposition of any civil penalty for such violation pursuant to 3 this section. 4 (4) Civil penalties collected pursuant to this section 5 shall be deposited into the Legal Affairs Revolving Trust Fund 6 of the Department of Legal Affairs and allocated solely to the 7 Department of Legal Affairs for the purpose of preparing and 8 distributing consumer education materials, programs, and 9 seminars to benefit homeowners in residential foreclosure 10 proceedings or to further enforcement efforts. 11 (5) This section does not apply to the act of 12 encumbering the dwelling subject to a residential foreclosure 13 proceeding with a substitute or additional lien. 14 Section 5. Section 702.035, Florida Statutes, is 15 amended to read: 16 702.035 Legal notice concerning foreclosure 17 proceedings.--Whenever a legal advertisement, publication, or 18 notice relating to a foreclosure proceeding is required to be 19 placed in a newspaper, it is the responsibility of the 20 petitioner or petitioner's attorney to place such 21 advertisement, publication, or notice. The advertisement, 22 publication, or notice shall be placed directly by the 23 attorney for the petitioner, by the petitioner if acting pro 24 se, or by the clerk of the court. Only the actual costs 25 charged by the newspaper for the advertisement, publication, 26 or notice may be charged as costs in the action. 27 Section 6. This act shall take effect July 1, 2006. 28 29 30 ================ T I T L E A M E N D M E N T =============== 31 And the title is amended as follows: 9 9:58 AM 01/24/06 s0166d-ju32-j03
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 166 Barcode 384724 1 Delete everything before the enacting clause 2 3 and insert: 4 A bill to be entitled 5 An act relating to foreclosure proceedings; 6 amending s. 45.031, F.S.; providing for 7 distribution of surplus funds from a judicial 8 sale; creating s. 45.032, F.S.; providing 9 definitions; providing a form for a notice of 10 surplus funds; creating a presumption that the 11 owner of record on the date of the filing of a 12 lis pendens is the person entitled to any 13 surplus proceeds from a judicial sale of that 14 property; providing for disbursement of surplus 15 funds by the clerk of court; requiring notice 16 to potential claimants; providing for service 17 charges to the clerk; requiring a hearing in 18 certain circumstances; creating s. 45.033, 19 F.S.; providing that there is a rebuttable 20 presumption that the owner of real property as 21 of the date of the filing of a lis pendens is 22 entitled to surplus funds available in a 23 foreclosure; providing criteria for a sale or 24 assignment of rights to the surplus funds; 25 providing for attorney's fees; providing 26 exceptions; creating s. 501.2078, F.S.; 27 providing definitions; providing a civil 28 penalty for knowingly using unfair or deceptive 29 methods, acts, or practices to victimize a 30 homeowner during the course of residential 31 foreclosure proceedings; providing an 10 9:58 AM 01/24/06 s0166d-ju32-j03
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 166 Barcode 384724 1 exception; specifying higher priority of an 2 order of restitution or reimbursement over 3 imposition of a civil penalty; providing for 4 deposit of civil penalties into the Legal 5 Affairs Revolving Trust Fund of the Department 6 of Legal Affairs; allocating such funds for 7 certain purposes; providing that the penalty 8 does not apply to the act of encumbering a 9 dwelling subject to a substitute or additional 10 lien; amending s. 702.035, F.S.; limiting costs 11 chargeable in a foreclosure proceeding to the 12 actual cost of a required legal advertisement; 13 providing an effective date. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 11 9:58 AM 01/24/06 s0166d-ju32-j03