Senate Bill sb0166c3

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    Florida Senate - 2006              CS for CS for CS for SB 166

    By the Committees on Justice Appropriations; Banking and
    Insurance; Judiciary; and Senators Campbell and Crist




    604-2391-06

  1                      A bill to be entitled

  2         An act relating to foreclosure proceedings;

  3         amending s. 45.031, F.S.; revising procedures

  4         and requirements for judicial sales; creating

  5         s. 45.032, F.S.; providing for disbursement of

  6         surplus funds after a judicial sale; providing

  7         definitions; establishing a rebuttable

  8         presumption of entitlement to surplus funds in

  9         certain filings; providing legislative intent;

10         providing requirements and procedures for

11         disbursement of surplus funds by the clerk of

12         court; providing for appointment of a surplus

13         trustee under certain circumstances; providing

14         for notice of appointment; providing for

15         termination of appointment; providing for

16         treatment of surplus funds as unclaimed

17         property under certain circumstances; providing

18         construction relating to title of property in a

19         foreclosure sale; creating s. 45.033, F.S.;

20         providing for a sale or assignment of rights to

21         surplus funds in a property subject to

22         foreclosure; establishing a rebuttable

23         presumption of entitlement to surplus funds;

24         providing requirements for proof; providing

25         legislative intent; providing requirements for

26         rebutting the presumption; providing

27         requirements for transfers or assignments of

28         surplus funds; providing duties and authority

29         of a court in payment of surplus funds under a

30         transfer or assignment; providing for

31         nonapplication to certain instruments;

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 1         specifying absence of effect on title or

 2         marketability of certain property or validity

 3         of certain liens; creating s. 45.034, F.S.;

 4         providing qualifications for appointment as a

 5         surplus trustee by the Department of Financial

 6         Services; providing requirements for

 7         appointment as a surplus trustee; providing for

 8         application and renewal fees; providing duties

 9         of the department in certifying surplus

10         trustees; requiring the department to establish

11         a rotation system for assignment of cases to

12         surplus trustees; providing duties of a surplus

13         trustee; providing entitlement of a surplus

14         trustee to certain service charges and fees;

15         creating s. 45.035, F.S.; specifying service

16         charges for clerks of court for administering

17         judicial sales and surplus funds; creating s.

18         501.2078, F.S.; providing definitions;

19         providing a civil penalty for knowingly using

20         unfair or deceptive homeowner victimization

21         methods, acts, or practices in residential

22         foreclosure proceedings; specifying higher

23         priority of an order of restitution or

24         reimbursement over imposition of a civil

25         penalty; providing for deposit of civil

26         penalties into the Legal Affairs Revolving

27         Trust Fund of the Department of Legal Affairs;

28         allocating such funds for certain purposes;

29         specifying nonapplication to certain

30         encumbrances, deeds, or actions; amending s.

31         702.035, F.S.; specifying different

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    Florida Senate - 2006              CS for CS for CS for SB 166
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 1         requirements relating to newspaper legal

 2         notices and process requirements for counties

 3         of different population sizes; limiting certain

 4         costs chargeable in a foreclosure proceeding;

 5         amending s. 201.02, F.S.; correcting a

 6         cross-reference; providing an effective date.

 7  

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

 9  

10         Section 1.  Section 45.031, Florida Statutes, is

11  amended to read:

12         45.031  Judicial sales procedure.--In any sale of real

13  or personal property under an order or judgment, the

14  procedures provided in ss. 45.031-45.035 following procedure

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

16  if so ordered by the court.:

17         (1)  FINAL JUDGMENT SALE BY CLERK.--In the order or

18  final judgment, the court shall direct the clerk to sell the

19  property at public sale on a specified day that shall be not

20  less than 20 days or more than 35 days after the date thereof,

21  on terms and conditions specified in the order or judgment. A

22  sale may be held more than 35 days after the date of final

23  judgment or order if the plaintiff or plaintiff's attorney

24  consents to such time. The final judgment shall contain the

25  following statement in conspicuous type:

26  

27  IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE

28  ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO

29  ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO

30  THIS FINAL JUDGMENT.

31  

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 1  IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO FUNDS

 2  REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK

 3  NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A

 4  CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.

 5  

 6         (b)  If the property being foreclosed on has qualified

 7  for the homestead tax exemption in the most recent approved

 8  tax roll, the final judgment shall additionally contain the

 9  following statement in conspicuous type:

10  

11  IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE FUNDS

12  YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER OR ANY OTHER

13  REPRESENTATION AND YOU DO NOT HAVE TO ASSIGN YOUR RIGHTS TO

14  ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY MONEY TO WHICH YOU

15  ARE ENTITLED. PLEASE CHECK WITH THE CLERK OF THE COURT,

16  [INSERT INFORMATION FOR APPLICABLE COURT] WITHIN TEN (10) DAYS

17  AFTER THE SALE TO SEE IF THERE IS ADDITIONAL MONEY FROM THE

18  FORECLOSURE SALE THAT THE CLERK HAS IN THE REGISTRY OF THE

19  COURT.

20  

21  IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP YOU

22  CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY CAREFULLY ALL

23  PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLY

24  AN ATTORNEY WHO IS NOT RELATED TO THE PERSON OFFERING TO HELP

25  YOU, TO MAKE SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND

26  THAT YOU ARE NOT TRANSFERRING YOUR PROPERTY OR THE EQUITY IN

27  YOUR PROPERTY WITHOUT THE PROPER INFORMATION. IF YOU CANNOT

28  AFFORD TO PAY AN ATTORNEY, YOU MAY CONTACT (INSERT LOCAL OR

29  NEAREST LEGAL AID OFFICE AND TELEPHONE PHONE NUMBER) TO SEE IF

30  YOU QUALIFY FINANCIALLY FOR THEIR SERVICES. IF THEY CANNOT

31  ASSIST YOU, THEY MAY BE ABLE TO REFER YOU TO A LOCAL BAR

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 1  REFERRAL AGENCY OR SUGGEST OTHER OPTIONS. IF YOU CHOOSE TO

 2  CONTACT (NAME OF LOCAL OR NEAREST LEGAL AID OFFICE) FOR

 3  ASSISTANCE, YOU SHOULD DO SO AS SOON AS POSSIBLE AFTER RECEIPT

 4  OF THIS NOTICE.

 5  

 6         (c)  A copy of the final judgment shall be furnished by

 7  the clerk by first class mail to the last known address of

 8  every party to the action or to the attorney of record for

 9  such party. Any irregularity in such mailing, including the

10  failure to include this statement in any final judgment or

11  order, shall not affect the validity or finality of the final

12  judgment or order or any sale held pursuant to the final

13  judgment or order. Any sale held more than 35 days after the

14  final judgment or order shall not affect the validity or

15  finality of the final judgment or order or any sale held

16  pursuant to such judgment or order thereto.

17         (2)  PUBLICATION OF SALE.--Notice of sale shall be

18  published once a week for 2 consecutive weeks in a newspaper

19  of general circulation, as defined in chapter 50, published in

20  the county where the sale is to be held. The second

21  publication shall be at least 5 days before the sale. The

22  notice shall contain:

23         (a)  A description of the property to be sold.

24         (b)  The time and place of sale.

25         (c)  A statement that the sale will be made pursuant to

26  the order or final judgment.

27         (d)  The caption of the action.

28         (e)  The name of the clerk making the sale.

29         (f)  A statement that any person claiming an interest

30  in the surplus from the sale, if any, other than the property

31  

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 1  owner as of the date of the lis pendens must file a claim

 2  within 60 days after the sale.

 3  

 4  The clerk shall receive a service charge of up to $60 for

 5  services in making, recording, and certifying the sale and

 6  title that shall be assessed as costs. The court, in its

 7  discretion, may enlarge the time of the sale. Notice of the

 8  changed time of sale shall be published as provided herein.

 9         (3)(2)  CONDUCT OF SALE; DEPOSIT REQUIRED.--The sale

10  shall be conducted at public auction at the time and place set

11  forth in the final judgment. The clerk shall receive the

12  service charge imposed in s. 45.035 for services in making,

13  recording, and certifying the sale and title that shall be

14  assessed as costs. At the time of the sale, the successful

15  high bidder shall post with the clerk a deposit equal to 5

16  percent of the final bid. The deposit shall be applied to the

17  sale price at the time of payment. If final payment is not

18  made within the prescribed period, the clerk shall readvertise

19  the sale as provided in this section and pay all costs of the

20  sale from the deposit. Any remaining funds shall be applied

21  toward the judgment.

22         (4)(3)  CERTIFICATION OF SALE.--After a sale of the

23  property the clerk shall promptly file a certificate of sale

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

25  substantially the following form:

26  

27  (Caption of Action)

28  

29                       CERTIFICATE OF SALE

30  

31  

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 1         The undersigned clerk of the court certifies that

 2  notice of public sale of the property described in the order

 3  or final judgment was published in ...., a newspaper

 4  circulated in .... County, Florida, in the manner shown by the

 5  proof of publication attached, and on ...., ... (year)..., the

 6  property was offered for public sale to the highest and best

 7  bidder for cash. The highest and best bid received for the

 8  property in the amount of $....  was submitted by ...., to

 9  whom the property was sold. The proceeds of the sale are

10  retained for distribution in accordance with the order or

11  final judgment or law. WITNESS my hand and the seal of this

12  court on ...., ...(year)....

13                                                   ...(Clerk)...

14                                         By ...(Deputy Clerk)...

15         (5)(4)  CERTIFICATE OF TITLE.--If no objections to the

16  sale are filed within 10 days after filing the certificate of

17  sale, the clerk shall file a certificate of title and serve a

18  copy of it on each party not in default in substantially the

19  following form:

20  

21  (Caption of Action)

22  

23                       CERTIFICATE OF TITLE

24         The undersigned clerk of the court certifies that he or

25  she executed and filed a certificate of sale in this action on

26  ...., ...(year)..., for the property described herein and that

27  no objections to the sale have been filed within the time

28  allowed for filing objections.

29         The following property in .... County, Florida:

30                          (description)

31  was sold to ..................................................

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 1  

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

 3                                                   ...(Clerk)...

 4                                         By ...(Deputy Clerk)...

 5         (6)(5)  CONFIRMATION; RECORDING.--When the certificate

 6  of title is filed the sale shall stand confirmed, and title to

 7  the property shall pass to the purchaser named in the

 8  certificate without the necessity of any further proceedings

 9  or instruments.

10         (6)  RECORDING.--The certificate of title shall be

11  recorded by the clerk.

12         (7)  DISBURSEMENTS OF PROCEEDS.--

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

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

15  or final judgment and shall file a report of such

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

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

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

19  Workforce Innovation or the former Department of Labor and

20  Employment Security was named as a defendant while the

21  Department of Revenue was providing unemployment tax

22  collection services under contract with the Agency for

23  Workforce Innovation through an interagency agreement pursuant

24  to s. 443.1316.

25         (b)  The certificate of disbursements shall be, in

26  substantially the following form:

27  

28  (Caption of Action)

29  

30                   CERTIFICATE OF DISBURSEMENTS

31  

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 1         The undersigned clerk of the court certifies that he or

 2  she disbursed the proceeds received from the sale of the

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

 4  persons and in the amounts as follows:

 5  Name                                                    Amount

 6  

 7                    Total disbursements: $....

 8         Surplus retained by clerk, if any: $....

 9  

10  IF YOU ARE A PERSON CLAIMING A RIGHT TO FUNDS REMAINING AFTER

11  THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN

12  60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL

13  NOT BE ENTITLED TO ANY REMAINING FUNDS. AFTER 60 DAYS, ONLY

14  THE OWNER OF RECORD AS OF THE DATE OF THE LIS PENDENS MAY

15  CLAIM THE SURPLUS.

16  

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

18  ...(year)....

19                                                   ...(Clerk)...

20                                         By ...(Deputy Clerk)...

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

22  10 days after it is filed, the disbursements by the clerk

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

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

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

26  of the purchaser of the property in any manner.

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

28  disbursements required by the final judgment of foreclosure

29  and shown on the certificate of disbursements, the surplus

30  shall be distributed as provided ss. 45.031-45.035.

31  

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 1         (8)  VALUE OF PROPERTY.--The amount of the bid for the

 2  property at the sale shall be conclusively presumed to be

 3  sufficient consideration for the sale. Any party may serve an

 4  objection to the amount of the bid within 10 days after the

 5  clerk files the certificate of sale. If timely objections to

 6  the bid are served, the objections shall be heard by the

 7  court. Service of objections to the amount of the bid does not

 8  affect or cloud the title of the purchaser in any manner. If

 9  the case is one in which a deficiency judgment may be sought

10  and application is made for a deficiency, the amount bid at

11  the sale may be considered by the court as one of the factors

12  in determining a deficiency under the usual equitable

13  principles.

14         (9)  EXECUTION SALES.--This section shall not apply to

15  property sold under executions.

16         Section 2.  Section 45.032, Florida Statutes, is

17  created to read:

18         45.032  Disbursement of surplus funds after judicial

19  sale.--

20         (1)  For purposes of ss. 45.031-45.035, the term:

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

22  appear to be the owner of the property that is the subject of

23  the foreclosure proceeding on the date of the filing of the

24  lis pendens. In determining an owner of record, a person need

25  not perform a title search and examination but may rely on the

26  plaintiff's allegation of ownership in the complaint when

27  determining the owner of record.

28         (b)  "Subordinate lienholder" means the holder of a

29  subordinate lien shown on the face of the pleadings as an

30  encumbrance on the property. The lien held by the party filing

31  the foreclosure lawsuit is not a subordinate lien. A

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 1  subordinate lienholder includes, but is not limited to, a

 2  subordinate mortgage, judgment, assessment lien, or

 3  construction lien. However, the holder of a subordinate lien

 4  shall not be deemed a subordinate lienholder if the holder was

 5  paid in full from the proceeds of the sale.

 6         (c)  "Surplus funds" or "surplus" means the funds

 7  remaining after payment of all disbursements required by the

 8  final judgment of foreclosure and shown on the certificate of

 9  disbursements.

10         (d)  "Surplus trustee" means a person qualifying as a

11  surplus trustee pursuant to s. 45.034.

12         (2)  There is established a rebuttable legal

13  presumption that the owner of record on the date of the filing

14  of a lis pendens is the person entitled to surplus funds after

15  payment of subordinate lienholders who have timely filed a

16  claim. A person claiming a legal right to the surplus as an

17  assignee of the rights of the owner of record must prove to

18  the court that such person is entitled to the funds. At any

19  hearing regarding such entitlement, the court shall consider

20  the factors set forth in s. 45.033 in determining whether an

21  assignment is sufficient to overcome the presumption. It is

22  the intent of the Legislature to abrogate the common law rule

23  that surplus proceeds in a foreclosure case are the property

24  of the owner of the property on the date of the foreclosure

25  sale.

26         (3)  During the 60 days after the clerk issues a

27  certificate of disbursements, the clerk shall hold the surplus

28  pending a court order.

29         (a)  If the owner of record claims the surplus during

30  the 60-day period and there is no subordinate lienholder, the

31  court shall order the clerk to deduct any applicable service

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 1  charges from the surplus and pay the remainder to the owner of

 2  record. The clerk may establish a reasonable requirement that

 3  the owner of record prove his or her identity before receiving

 4  the disbursement. The clerk may assist an owner of record in

 5  making a claim. An owner of record may use the following form

 6  in making a claim:

 7  

 8  (Caption of Action)

 9  

10          OWNER'S CLAIM FOR MORTGAGE FORECLOSURE SURPLUS

11  

12  State of ... .......

13  County of ... .......

14         Under penalty of perjury, I (we) hereby certify that:

15         1.  I was (we were) the owner of the following

16  described real property in ... ....... County, Florida, prior

17  to the foreclosure sale and as of the date of the filing of

18  the lis pendens:

19  

20               (Legal description of real property)

21  

22         2.  I (we) do not owe any money on any mortgage on the

23  property that was foreclosed other than the one that was paid

24  off by the foreclosure.

25         3.  I (we) do not owe any money that is the subject of

26  an unpaid judgment, condominium lien, cooperative lien, or

27  homeowners' association.

28         4.  I am (we are) not currently in bankruptcy.

29         5.  I (we) have not sold or assigned my (our) right to

30  the mortgage surplus.

31         6.  My (our) new address is:.....

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 1         7.  If there is more than one owner entitled to the

 2  surplus, we have agreed that the surplus should be paid ....

 3  jointly, or to : ...., at the following address: .....

 4         8.  I (WE) UNDERSTAND THAT I (WE) AM (ARE) NOT REQUIRED

 5  TO HAVE A LAWYER OR ANY OTHER REPRESENTATION AND I (WE) DO NOT

 6  HAVE TO ASSIGN MY (OUR) RIGHTS TO ANYONE ELSE IN ORDER TO

 7  CLAIM ANY MONEY TO WHICH I (WE) MAY BE ENTITLED.

 8         9.  I (WE) UNDERSTAND THAT THIS STATEMENT IS GIVEN

 9  UNDER OATH, AND IF ANY STATEMENTS ARE UNTRUE THAT I (WE) MAY

10  BE PROSECUTED CRIMINALLY FOR PERJURY.

11  

12  ...(Signatures)...

13  

14         Sworn to (or affirmed) and subscribed before me this

15  .... day of ...., ...(year)..., by   ...(name of person making

16  statement)....

17  (Signature of Notary Public - State of Florida)

18           (Print, Type, or Stamp Commissioned Name of Notary

19  Public)

20         Personally Known .... OR Produced Identification ....

21         Type of Identification Produced ....

22  

23         (b)  If any person other than the owner of record

24  claims an interest in the proceeds during the 60-day period or

25  if the owner of record files a claim for the surplus but

26  acknowledges that one or more other persons may be entitled to

27  part or all of the surplus, the court shall set an evidentiary

28  hearing to determine entitlement to the surplus. At the

29  evidentiary hearing, an equity assignee has the burden of

30  proving that he or she is entitled to some or all of the

31  surplus funds. The court may grant summary judgment to a

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 1  subordinate lienholder prior to or at the evidentiary hearing.

 2  The court shall consider the factors in s. 45.033 when hearing

 3  a claim that any person other than a subordinate lienholder or

 4  the owner of record is entitled to the surplus funds.

 5         (c)  If no claim is filed during the 60-day period, the

 6  clerk shall appoint a surplus trustee from a list of qualified

 7  surplus trustees as authorized in s. 45.034. Upon such

 8  appointment, the clerk shall prepare a notice of appointment

 9  of surplus trustee and shall furnish a copy to the surplus

10  trustee. The form of the notice may be as follows:

11  

12  (Caption of Action)

13  

14             NOTICE OF APPOINTMENT OF SURPLUS TRUSTEE

15  

16         The undersigned clerk of the court certifies that he or

17  she disbursed the proceeds received from the sale of the

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

19  persons named in the certificate of disbursements, and that

20  surplus funds of $.... remain and are subject to disbursement

21  to the owner of record. You have been appointed as surplus

22  trustee for the purpose of finding the owner of record in

23  order for the clerk to disburse the surplus, after deducting

24  costs, to the owner of record.

25         WITNESS my hand and the seal of the court on

26  ....,...(year)....

27                                                   ...(Clerk)...

28                                         By ...(Deputy Clerk)...

29  

30         (4)  If the surplus trustee is unable to locate the

31  owner of record entitled to the surplus within 1 year after

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 1  appointment, the appointment shall terminate and the clerk

 2  shall notify the surplus trustee that his or her appointment

 3  was terminated. Thirty days after termination of the

 4  appointment of the surplus trustee, the clerk shall treat the

 5  remaining funds as unclaimed property to be deposited with the

 6  Chief Financial Officer pursuant to chapter 717.

 7         (5)  Proceedings regarding surplus funds in a

 8  foreclosure case do not in any manner affect or cloud the

 9  title of the purchaser at the foreclosure sale of the

10  property.

11         Section 3.  Section 45.033, Florida Statutes, is

12  created to read:

13         45.033  Sale or assignment of rights to surplus funds

14  in a property subject to foreclosure.--

15         (1)  There is established a rebuttable presumption that

16  the owner of record of real property on the date of the filing

17  of a lis pendens is the person entitled to surplus funds after

18  payment of subordinate lienholders who have timely filed a

19  claim. A person claiming a legal right to the surplus as an

20  assignee of the rights of the owner of record must prove

21  entitlement to the surplus funds pursuant to this section. It

22  is the intent of the Legislature to abrogate the common law

23  rule that surplus proceeds in a foreclosure case are the

24  property of the owner of the property on the date of the

25  foreclosure sale.

26         (2)  The presumption may be rebutted only by:

27         (a)  The grantee or assignee of a voluntary transfer or

28  assignment establishing a right to collect the surplus funds

29  or any portion or percentage of the surplus funds by proving

30  that the transfer or assignment qualifies as a voluntary

31  transfer or assignment as provided in subsection (3); or

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 1         (b)  The grantee or assignee proving that the grantee

 2  or assignee is a grantee or assignee by virtue of an

 3  involuntary transfer or assignment of the right to collect the

 4  surplus. An involuntary transfer or assignment may be as a

 5  result of inheritance or as a result of the appointment of a

 6  guardian.

 7         (3)  A voluntary transfer or assignment shall be a

 8  transfer or assignment qualified under this subsection,

 9  thereby entitling the transferee or assignee to the surplus

10  funds or a portion or percentage of the surplus funds, if:

11         (a)  The transfer or assignment is in writing and the

12  instrument:

13         1.  If executed prior to the foreclosure sale, includes

14  a financial disclosure that specifies the assessed value of

15  the property, a statement that the assessed value may be lower

16  than the actual value of the property, the approximate amount

17  of any debt encumbering the property, and the approximate

18  amount of any equity in the property. If the instrument was

19  executed after the foreclosure sale, the instrument must also

20  specify the foreclosure sale price and the amount of the

21  surplus.

22         2.  Includes a statement that the owner does not need

23  an attorney or other representative to recover surplus funds

24  in a foreclosure.

25         3.  Specifies all forms of consideration paid for the

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

27  surplus funds.

28         (b)  The transfer or assignment is filed with the court

29  on or before 60 days after the filing of the certificate of

30  disbursements.

31  

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 1         (c)  There are funds available to pay the transfer or

 2  assignment after payment of timely filed claims of subordinate

 3  lienholders.

 4         (d)  The transferor or assignee is qualified as a

 5  surplus trustee, or could qualify as a surplus trustee,

 6  pursuant to s. 45.034.

 7         (e)  The total compensation paid or payable, or earned

 8  or expected to be earned, by the transferee or assignee does

 9  not exceed 12 percent of the surplus.

10         (4)  The court shall honor a transfer or assignment

11  that complies with the requirements of subsection (3), in

12  which case the court shall order the clerk to pay the

13  transferor or assignee from the surplus.

14         (5)  If the court finds that a voluntary transfer or

15  assignment does not qualify under subsection (3) but that the

16  transfer or assignment was procured in good faith and with no

17  intent to defraud the transferor or assignor, the court may

18  order the clerk to pay the claim of the transferee or assignee

19  after payment of timely filed claims of subordinate

20  lienholders.

21         (6)  If a voluntary transfer or assignment of the

22  surplus is set aside, the owner of record shall be entitled to

23  payment of the surplus after payment of timely filed claims of

24  subordinate lienholders, but the transferee or assignee may

25  seek in a separate proceeding repayment of any consideration

26  paid for the transfer or assignment.

27         (7)  This section does not apply to a deed, mortgage,

28  or deed in lieu of foreclosure unless a person other than the

29  owner of record is claiming that a deed or mortgage entitles

30  the person to surplus funds. Nothing in this section affects

31  the title or marketability of the real property that is the

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 1  subject of the deed or other instrument. Nothing in this

 2  section affects the validity of a lien evidenced by a

 3  mortgage.

 4         Section 4.  Effective upon this act becoming a law,

 5  section 45.034, Florida Statutes, is created to read:

 6         45.034  Qualifications and appointment of a surplus

 7  trustee in foreclosure actions.--

 8         (1)  A surplus trustee is a third-party trustee

 9  approved pursuant to this section by the Department of

10  Financial Services. A surplus trustee must be willing to

11  accept cases on a statewide basis; however, a surplus trustee

12  may employ subcontractors that are not qualified as a surplus

13  trustee provided the surplus trustee remains primarily

14  responsible for the duties set forth in this section.

15         (2)  A surplus trustee is an entity that holds and

16  administers surplus proceeds from a foreclosure pursuant to

17  ss. 45.031-45.035.

18         (3)  To be a surplus trustee, an entity must apply for

19  certification with the Department of Financial Services. The

20  application must contain:

21         (a)  The name and address of the entity and of one or

22  more principals of the entity.

23         (b)  A certificate of good standing from the Secretary

24  of State indicating that the entity is an entity registered in

25  this state.

26         (c)  A statement under oath by a principal of the

27  entity certifying that the entity, or a principal of the

28  entity, has a minimum of 12 months' experience in the recovery

29  of surplus funds in foreclosure actions.

30         (d)  Proof that the entity holds a valid Class "A"

31  private investigator license pursuant to chapter 493.

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 1         (e)  Proof that the entity carries a minimum of

 2  $500,000 in liability insurance, cash reserves, or bonding.

 3         (f)  A statement from an attorney licensed to practice

 4  in this state certifying that the attorney is a principal of

 5  the entity or is employed by the entity on a full-time basis

 6  and that the attorney will supervise the management of the

 7  entity during the entity's tenure as a surplus trustee.

 8         (g)  A statement under oath by a principal of the

 9  entity certifying that the principal understands his or her

10  duty to immediately notify the department if the principal

11  ever fails to qualify as an entity entitled to be a surplus

12  trustee.

13         (h)  A nonrefundable application fee of $25.

14         (4)  The Department of Financial Services shall certify

15  any surplus trustee that applies and qualifies. Applications

16  must be filed by June 1, and all applications that qualify

17  shall be certified by the department by June 30 and shall be

18  effective for 1 year commencing July 1. The department shall

19  renew a certification upon receipt of the $25 fee and a

20  statement under oath from a principal of the surplus trustee

21  certifying that the surplus trustee continues to qualify under

22  this section.

23         (5)  The Department of Financial Services shall develop

24  a rotation system for assignment of cases to all qualified

25  surplus trustees.

26         (6)  The primary duty of a surplus trustee is to locate

27  the owner of record within 1 year after appointment. Upon

28  locating the owner of record, the surplus trustee shall file a

29  petition with the court on behalf of the owner of record

30  seeking disbursement of the surplus funds. If more than one

31  person appears to be the owner of record, the surplus trustee

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 1  shall obtain agreement between such persons as to the payment

 2  of the surplus, or file an interpleader. The interpleader may

 3  be filed as part of the foreclosure case.

 4         (7)  A surplus trustee is entitled to the following

 5  service charges and fees which shall be disbursed by the clerk

 6  and payable from the surplus:

 7         (a)  Upon obtaining a court order, a cost advance of 2

 8  percent of the surplus.

 9         (b)  Upon obtaining a court order disbursing the

10  surplus to the owner of record, a service charge of 10 percent

11  of the surplus.

12         Section 5.  Section 45.035, Florida Statutes, is

13  created to read:

14         45.035  Clerk's fees.--In addition to other fees or

15  service charges authorized by law, the clerk shall receive

16  service charges related to the judicial sales procedure set

17  forth in ss. 45.031-45.034 and this section:

18         (1)  The clerk shall receive a service charge of $60

19  for services in making, recording, and certifying the sale and

20  title, which service charge shall be assessed as costs and

21  shall be advanced by the plaintiff before the sale.

22         (2)  If there is a surplus resulting from the sale, the

23  clerk may receive the following service charges, which shall

24  be deducted from the surplus:

25         (a)  The clerk may withhold the sum of $25 from the

26  surplus which may only be used for purposes of educating the

27  public as to the rights of homeowners regarding foreclosure

28  proceedings.

29         (b)  The clerk is entitled to a service charge of $10

30  for notifying a surplus trustee of his or her appointment.

31  

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 1         (c)  The clerk is entitled to a service charge of $10

 2  for each disbursement of surplus proceeds.

 3         (d)  The clerk is entitled to a service charge of $10

 4  for appointing a surplus trustee, furnishing the surplus

 5  trustee with a copy of the final judgment and the certificate

 6  of disbursements, and disbursing to the surplus trustee the

 7  trustee's cost advance.

 8         Section 6.  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:

14         (a)  "Homeowner" means any individual who is the owner

15  of the property subject to a residential foreclosure

16  proceeding.

17         (b)  "Residential foreclosure proceeding" means any

18  action in a court of this state in which a party seeks to

19  foreclose on a mortgage encumbering the mortgagor's primary

20  dwelling.

21         (c)  "Victimize" means any course of action intended to

22  dupe, swindle, or cheat a homeowner subject to a residential

23  foreclosure proceeding. The factors that a court shall review

24  when determining whether a course of action is victimizing a

25  homeowner are:

26         1.  The compensation received relative to the risk and

27  the amount of work involved.

28         2.  The number of homeowners involved.

29         3.  The relative bargaining position of the parties.

30         4.  The relative knowledge and sophistication of the

31  parties.

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 1         5.  Representations made in the inducement.

 2         6.  The timing of the agreement.

 3         (2)  Any person, other than a financial institution as

 4  defined in s. 655.005, who willfully uses, or has willfully

 5  used, a method, act, or practice in violation of this part,

 6  which method, act, or practice victimizes or attempts to

 7  victimize homeowners during the course of a residential

 8  foreclosure proceeding, and in committing such violation knew

 9  or should have known that such conduct was unfair or

10  deceptive, is liable for a civil penalty of not more than

11  $15,000 for each such violation.

12         (3)  Any order of restitution or reimbursement based on

13  a violation of this part committed against a homeowner in a

14  residential foreclosure proceeding has priority over the

15  imposition of any civil penalty for such violation pursuant to

16  this section.

17         (4)  Civil penalties collected pursuant to this section

18  shall be deposited into the Legal Affairs Revolving Trust Fund

19  of the Department of Legal Affairs and allocated solely to the

20  Department of Legal Affairs for the purpose of preparing and

21  distributing consumer education materials, programs, and

22  seminars to benefit homeowners in residential foreclosure

23  proceedings or to further enforcement efforts.

24         (5)  This section does not apply to:

25         (a)  The act of encumbering the dwelling subject to a

26  residential foreclosure proceeding with a substitute or

27  additional lien.

28         (b)  A deed in lieu of foreclosure, a workout

29  agreement, a bankruptcy plan, or any other agreement between a

30  foreclosing lender and a homeowner.

31  

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 1         (c)  A foreclosure sale, eminent domain proceeding,

 2  forfeiture, or any other legal process.

 3         Section 7.  Section 702.035, Florida Statutes, is

 4  amended to read:

 5         702.035  Legal notice concerning foreclosure

 6  proceedings.--Whenever a legal advertisement, publication, or

 7  notice relating to a foreclosure proceeding is required to be

 8  placed in a newspaper, it is the responsibility of the

 9  petitioner or petitioner's attorney to place such

10  advertisement, publication, or notice. For counties with more

11  than 1 million total population as reflected in the most

12  recent official decennial census of the United States Census

13  Bureau as shown on the official website of the United States

14  Census Bureau, any notice of publication required by this

15  section shall be deemed to have been published in accordance

16  with the law if the notice is published in a newspaper that

17  has been entered as periodical matter at a post office in the

18  county in which the newspaper is published, is published a

19  minimum of 5 days a week, and has been in existence and

20  published a minimum of 5 days a week for 1 year or is a direct

21  successor to a newspaper that has been in existence for 1 year

22  and has been published a minimum of 5 days a week. The

23  advertisement, publication, or notice shall be placed directly

24  by the attorney for the petitioner, by the petitioner if

25  acting pro se, or by the clerk of the court. Only the actual

26  costs charged by the newspaper for the advertisement,

27  publication, or notice may be charged as costs in the action.

28         Section 8.  Subsection (9) of section 201.02, Florida

29  Statutes, is amended to read:

30         201.02  Tax on deeds and other instruments relating to

31  real property or interests in real property.--

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 1         (9)  A certificate of title issued by the clerk of

 2  court under s. 45.031(5)(4) in a judicial sale of real

 3  property under an order or final judgment issued pursuant to a

 4  foreclosure proceeding is subject to the tax imposed by

 5  subsection (1). However, the amount of the tax shall be

 6  computed based solely on the amount of the highest and best

 7  bid received for the property at the foreclosure sale. This

 8  subsection is intended to clarify existing law and shall be

 9  applied retroactively.

10         Section 9.  This act shall take effect July 1, 2006.

11  

12          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
13                       CS for CS for SB 166

14                                 

15  Corrects reference to ss. 45.031-45.035, F.S., for
    distribution of funds remaining after payment of all
16  disbursements in foreclosure proceedings.

17  Removes references to the Clerk of Courts Corporation in
    qualifying surplus trustees. The bill would require the
18  Department of Financial Services to perform this duty.

19  Limits the total compensation paid to a surplus trustee to 12
    percent of the surplus.
20  
    Provides that notice requirements are satisfied in counties
21  with more than a million population when such notice is
    published in a newspaper.
22  
    Amends s. 201.02, F.S., to correct a cross reference relating
23  to certificate of titles issued by the clerk of court based on
    a foreclosure proceeding.
24  

25  

26  

27  

28  

29  

30  

31  

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