Senate Bill sb0166c1

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    Florida Senate - 2006                            CS for SB 166

    By the Committee on Judiciary; and Senator Campbell





    590-1313-06

  1                      A bill to be entitled

  2         An act relating to foreclosure proceedings;

  3         amending s. 45.031, F.S.; providing for

  4         distribution of surplus funds from a judicial

  5         sale; creating s. 45.032, F.S.; providing

  6         definitions; providing a form for a notice of

  7         surplus funds; creating a presumption that the

  8         owner of record on the date of the filing of a

  9         lis pendens is the person entitled to any

10         surplus proceeds from a judicial sale of that

11         property; providing for disbursement of surplus

12         funds by the clerk of court; requiring notice

13         to potential claimants; providing for service

14         charges to the clerk; requiring a hearing in

15         certain circumstances; creating s. 45.033,

16         F.S.; providing that there is a rebuttable

17         presumption that the owner of real property as

18         of the date of the filing of a lis pendens is

19         entitled to surplus funds available in a

20         foreclosure; providing criteria for a sale or

21         assignment of rights to the surplus funds;

22         providing for attorney's fees; providing

23         exceptions; creating s. 501.2078, F.S.;

24         providing definitions; providing a civil

25         penalty for knowingly using unfair or deceptive

26         methods, acts, or practices to victimize a

27         homeowner during the course of residential

28         foreclosure proceedings; providing an

29         exception; specifying higher priority of an

30         order of restitution or reimbursement over

31         imposition of a civil penalty; providing for

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    Florida Senate - 2006                            CS for SB 166
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 1         deposit of civil penalties into the Legal

 2         Affairs Revolving Trust Fund of the Department

 3         of Legal Affairs; allocating such funds for

 4         certain purposes; providing that the penalty

 5         does not apply to the act of encumbering a

 6         dwelling subject to a substitute or additional

 7         lien; amending s. 702.035, F.S.; limiting costs

 8         chargeable in a foreclosure proceeding to the

 9         actual cost of a required legal advertisement;

10         providing an effective date.

11  

12  Be It Enacted by the Legislature of the State of Florida:

13  

14         Section 1.  Subsection (7) of section 45.031, Florida

15  Statutes, is amended to read:

16         45.031  Judicial sales procedure.--In any sale of real

17  or personal property under an order or judgment, the following

18  procedure may be followed as an alternative to any other sale

19  procedure if so ordered by the court:

20         (7)  DISBURSEMENTS OF PROCEEDS.--

21         (a)  On filing a certificate of title, the clerk shall

22  disburse the proceeds of the sale in accordance with the order

23  or final judgment and shall file a report of such

24  disbursements and serve a copy of it on each party not in

25  default, and on the Department of Revenue if the department

26  was named as a defendant in the action or if the Agency for

27  Workforce Innovation or the former Department of Labor and

28  Employment Security was named as a defendant while the

29  Department of Revenue was providing unemployment tax

30  collection services under contract with the Agency for

31  

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    Florida Senate - 2006                            CS for SB 166
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 1  Workforce Innovation through an interagency agreement pursuant

 2  to s. 443.1316.,

 3         (b)  The certificate of disbursement shall be in

 4  substantially the following form:

 5  

 6  (Caption of Action)

 7  

 8                   CERTIFICATE OF DISBURSEMENTS

 9  

10         The undersigned clerk of the court certifies that he or

11  she disbursed the proceeds received from the sale of the

12  property as provided in the order or final judgment to the

13  persons and in the amounts as follows:

14  Name                                                    Amount

15  

16                              Total

17  

18  WITNESS my hand and the seal of the court on ....,

19  ...(year)....

20                                                   ...(Clerk)...

21                                         By ...(Deputy Clerk)...

22         (c)  If no objections to the report are served within

23  10 days after it is filed, the disbursements by the clerk

24  shall stand approved as reported. If timely objections to the

25  report are served, they shall be heard by the court. Service

26  of objections to the report does not affect or cloud the title

27  of the purchaser of the property in any manner.

28         (d)  If there are funds remaining after payment of all

29  disbursements required by the final judgment of foreclosure

30  and shown on the certificate of disbursements, the provisions

31  of ss. 45.032 and 45.033 apply.

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    Florida Senate - 2006                            CS for SB 166
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 1         Section 2.  Section 45.032, Florida Statutes, is

 2  created to read:

 3         45.032  Disbursement of surplus funds after judicial

 4  sale.--

 5         (1)  As used in this section and s. 45.033, the term:

 6         (a)  "Owner of record" means the person or persons who

 7  appear to be the owner of the property on the date of the

 8  filing of the lis pendens. The clerk need not perform a title

 9  search and examination, but may rely on the plaintiff's

10  allegation of ownership in the complaint when determining the

11  owner of record.

12         (b)  "Notice of surplus funds" means a document in

13  substantially the following form:

14  

15  (Caption of Action)

16  

17                     NOTICE OF SURPLUS FUNDS

18  

19         The undersigned clerk of the court certifies that he or

20  she disbursed the proceeds received from the sale of the

21  property as provided in the order or final judgment to the

22  persons named in the certificate of disbursements, and that

23  surplus funds of $___________ remain and are subject to

24  disbursement by the court.

25         It appears that ______________, as owner(s) of the

26  property at the time that the foreclosure was filed, (is/are)

27  entitled to payment of the surplus funds. The clerk of court

28  will pay the surplus funds to the owner(s) unless an objection

29  to payment of the surplus funds is filed with the court on or

30  before ______________________.  If an objection is timely

31  

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    Florida Senate - 2006                            CS for SB 166
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 1  filed, a hearing will be set in order for the court to

 2  determine who is entitled to receive the surplus funds.

 3         IF YOU ARE AN INDIVIDUAL AND ARE THE OWNER OF THE

 4  PROPERTY, YOU MAY CLAIM THESE FUNDS YOURSELF. YOU ARE NOT

 5  REQUIRED TO HAVE A LAWYER OR ANY OTHER REPRESENTATION AND YOU

 6  DO NOT HAVE TO ASSIGN YOUR RIGHTS TO ANYONE ELSE IN ORDER FOR

 7  YOU TO CLAIM ANY MONEY TO WHICH YOU ARE ENTITLED.

 8  

 9  WITNESS my hand and the seal of the court on _____,   (year).

10              (Clerk)

11  By   (Deputy Clerk)

12  

13         (c)  "Surplus funds" means the funds remaining after

14  payment of all disbursements required by the final judgment of

15  foreclosure and shown on the certificate of disbursements.

16         (2)  There is established a legal presumption that the

17  owner of record on the date of the filing of a lis pendens is

18  the person entitled to surplus funds. The surplus funds shall

19  be paid to the owner of record on the date of the filing of

20  the lis pendens unless a court rules otherwise.

21         (3)  If the surplus funds are less than $200, the clerk

22  shall, after deducting a service charge of $5, pay the surplus

23  funds to the owner of record. The payment instrument may be

24  furnished by regular mail to the last known address of the

25  owner of record. If the surplus funds are $200 or more,

26  subsections (4)-(9) apply.

27         (4)  The clerk shall furnish a notice of surplus funds

28  by certified mail to the following persons:

29         (a)  The owner of record.

30         (b)  All defendants in the action listed on the final

31  judgment of foreclosure, except that:

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    Florida Senate - 2006                            CS for SB 166
    590-1313-06




 1         1.  A defendant whose claim was paid in full as shown

 2  on the certificate of disbursements need not be furnished a

 3  notice of surplus funds.

 4         2.  Any defendant named by position and not by actual

 5  name need not be furnished a notice of surplus funds. Examples

 6  of such defendants include, but are not limited to, defendants

 7  such as "unknown tenant" or "unknown heir."

 8         (c)  If a suggestion of bankruptcy was filed in the

 9  action, the bankruptcy trustee.

10         (d)  Any other person who appears from the record to be

11  a person who may be entitled to the surplus funds. The

12  plaintiff is not a person who is entitled to surplus funds and

13  need not be given a notice of surplus funds.

14  

15  If the clerk is unsure who the owner of record is, the clerk

16  may write "unknown" on the form and send the notice of surplus

17  funds with a notice of hearing. The clerk may only receive one

18  service charge for the mailing.

19         (5)  The clerk is entitled to a service charge of $5

20  for each notice of surplus funds. The clerk may draw the

21  service charge from the surplus funds upon mailing.

22         (6)  Unless an objection is filed within 30 days after

23  the mailing of the notice of surplus funds, the clerk shall

24  pay the surplus funds to the owner of record. If the location

25  of the owner of record is unknown, the clerk may expend up to

26  $250 of the surplus funds to conduct or contract for a search

27  for the owner of record. If the search is unsuccessful and

28  more than 90 days has elapsed, the clerk shall treat the funds

29  as unclaimed property, which shall be deposited with the Chief

30  Financial Officer pursuant to chapter 717.

31  

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    Florida Senate - 2006                            CS for SB 166
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 1         (7)  If an objection is filed or if the clerk is unable

 2  to determine the owner of record, the court shall set a

 3  hearing to determine the disposition of the surplus funds. The

 4  clerk shall prepare a notice of the hearing and shall furnish

 5  the notice by certified mail to all persons who have received

 6  a notice of surplus funds and to any other person who has

 7  requested notice of the hearing on surplus funds. The clerk is

 8  entitled to an additional service charge of $5 per notice of

 9  hearing, which may be drawn from the surplus funds.

10         (8)  At the hearing, any person other than the owner of

11  record has the burden of proving that he or she is entitled to

12  some or all of the surplus funds. The court shall consider the

13  factors in s. 45.033 when hearing a claim that a person other

14  than the owner of record is entitled to the surplus funds.

15         (9)  The clerk of court may collect an additional fee

16  of $25 from any surplus funds remaining in the court registry

17  following a foreclosure sale. The clerk shall use the proceeds

18  of such fee solely for purposes of educating the public as to

19  the rights of homeowners regarding foreclosure proceedings.

20         Section 3.  Section 45.033, Florida Statutes, is

21  created to read:

22         45.033  Sale or assignment of rights to surplus

23  proceeds in a property subject to foreclosure.--

24         (1)  There is a rebuttable presumption that the owner

25  of real property as of the date of the filing of a lis pendens

26  is entitled to surplus funds available in a foreclosure of

27  that real property.

28         (2)  Another person may rebut that presumption only by

29  proving that a transfer or assignment of the right to collect

30  the surplus funds, or any portion or percentage of the surplus

31  funds, has been executed as required by this section.

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    Florida Senate - 2006                            CS for SB 166
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 1         (3)  For a transfer or assignment to qualify as one

 2  entitling the transferee or assignee to the surplus funds, or

 3  any portion or percentage thereof, the instrument must:

 4         (a)  Be executed with the formality of a deed.

 5         (b)  Include a financial disclosure that specifies the

 6  assessed value of the property and states that the assessed

 7  value may be lower than the actual value of the property, the

 8  approximate amount of any debt encumbering the property, and

 9  the approximate amount of any equity in the property.

10         (c)  Include a statement that the owner does not need

11  an attorney or other representative to recover surplus funds

12  in a foreclosure.

13         (d)  Specify all forms of consideration paid for the

14  rights to the property or the assignment of the rights to any

15  surplus funds.

16         (4)  A transfer or assignment that does not qualify

17  under subsection (3) may nevertheless qualify if the court

18  finds that the instrument was procured in good faith and with

19  no intent to defraud the transferee or assignee.

20         (5)  A party who has executed a transfer or assignment

21  that does not conform to the requirements of this section may

22  petition the court presiding over the foreclosure proceeding

23  to set aside the nonconforming transfer or assignment. If the

24  transfer or assignment is set aside, the owner of record is

25  entitled to the surplus funds, but the other party may, in a

26  separate proceeding, seek rescission of the contract and

27  appropriate damages therein. The prevailing party in any

28  proceeding under this subsection is entitled to recover all

29  fees and costs incurred in connection with the proceeding,

30  including reasonable attorney's fees.

31  

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    Florida Senate - 2006                            CS for SB 166
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 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

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    Florida Senate - 2006                            CS for SB 166
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 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  

31  

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    Florida Senate - 2006                            CS for SB 166
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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 166

 3                                 

 4  The Committee Substitute differs from the underlying bill in
    that it:
 5  
    -    Removes provisions that directed a court to determine
 6       reasonable fees for filing a motion to disburse funds;

 7  -    Removes references to a mortgagor's primary dwelling;

 8  -    Applies to all types of foreclosures on all types of
         property, except for violations of the Florida Deceptive
 9       and Unfair Trade Practices Act;

10  -    Removes provisions that required a notice on orange paper
         to be delivered along with a mortgage foreclosure
11       complaint;

12  -    Removes provisions that prohibited persons from
         contacting an owner of property under foreclosure within
13       30 days after the foreclosure action was initiated;

14  -    Removes provisions regulating the sale of property in
         default;
15  
    -    Creates a presumption that the owner of surplus funds is
16       the record owner of property on the date of the filing of
         a lis pendens;
17  
    -    Requires clerks of court to notify defendants of
18       foreclosure actions, if surplus funds exist;

19  -    Provides for the disbursement of surplus funds without a
         hearing if no objections to paying the former property
20       owner are filed;

21  -    Authorizes clerks of court to spend some of the surplus
         funds to locate a former property owner; and
22  
    -    Requires clerks of court to deposit certain surplus funds
23       with the chief financial officer as unclaimed property.

24  

25  

26  

27  

28  

29  

30  

31  

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