HB 0065

CS

CHAMBER ACTION

1	The Economic Development, Trade & Banking Committee recommends
2	the following:
3
4	Council/Committee Substitute
5	Remove the entire bill and insert:
6	A bill to be entitled
7	An act relating to foreclosure proceedings; amending s.
8	45.031, F.S.; revising procedures and requirements for
9	judicial sales; creating s. 45.032, F.S.; providing for
10	disbursement of surplus funds after a judicial sale;
11	providing definitions; establishing a rebuttable
12	presumption of entitlement to surplus funds in certain
13	filings; providing legislative intent; providing
14	requirements and procedures for disbursement of surplus
15	funds by the clerk of court; providing for appointment of
16	a surplus trustee under certain circumstances; providing
17	for notice of appointment; providing for termination of
18	appointment; providing for treatment of surplus funds as
19	unclaimed property under certain circumstances; providing
20	construction relating to title of property in a
21	foreclosure sale; creating s. 45.033, F.S.; providing for
22	a sale or assignment of rights to surplus funds in a
23	property subject to foreclosure; establishing a rebuttable
24	presumption of entitlement to surplus funds; providing
25	requirements for proof; providing legislative intent;
26	providing requirements for rebutting the presumption;
27	providing requirements for transfers or assignments of
28	surplus funds; providing duties and authority of a court
29	in payment of surplus funds under a transfer or
30	assignment; providing for nonapplication to certain
31	instruments; specifying absence of effect on title or
32	marketability of certain property or validity of certain
33	liens; creating s. 45.034, F.S.; providing qualifications
34	for appointment as a surplus trustee by the Florida Clerks
35	of Court Operations Corporation; providing requirements
36	for appointment as a surplus trustee; providing for
37	application and renewal fees; providing duties of the
38	corporation in certifying surplus trustees; requiring the
39	corporation to establish a rotation system for assignment
40	of cases to surplus trustees; providing duties of a
41	surplus trustee; providing entitlement of a surplus
42	trustee to certain service charges and fees; creating s.
43	45.035, F.S.; specifying service charges for clerks of
44	court for administering judicial sales and surplus funds;
45	creating s. 501.2078, F.S.; providing definitions;
46	providing a civil penalty for knowingly using unfair or
47	deceptive homeowner victimization methods, acts, or
48	practices in residential foreclosure proceedings;
49	specifying higher priority of an order of restitution or
50	reimbursement over imposition of a civil penalty;
51	providing for deposit of civil penalties into the Legal
52	Affairs Revolving Trust Fund of the Department of Legal
53	Affairs; allocating such funds for certain purposes;
54	specifying nonapplication to certain encumbrances, deeds,
55	or actions; amending s. 702.035, F.S.; limiting certain
56	costs chargeable in a foreclosure proceeding; amending s.
57	201.02, F.S.; correcting a cross-reference; providing an
58	effective date.
59
60	Be It Enacted by the Legislature of the State of Florida:
61
62	Section 1.  Section 45.031, Florida Statutes, is amended to
63	read:
64	45.031  Judicial sales procedure.--In any sale of real or
65	personal property under an order or judgment, the procedures
66	provided in ss. 45.031-45.035 following procedure may be
67	followed as an alternative to any other sale procedure if so
68	ordered by the court.:
69	(1)  FINAL JUDGMENT SALE BY CLERK.--In the order or final
70	judgment, the court shall direct the clerk to sell the property
71	at public sale on a specified day that shall be not less than 20
72	days or more than 35 days after the date thereof, on terms and
73	conditions specified in the order or judgment. A sale may be
74	held more than 35 days after the date of final judgment or order
75	if the plaintiff or plaintiff's attorney consents to such time.
76	The final judgment shall contain the following statement in
77	conspicuous type:
78
79	IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE
80	ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE
81	ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THIS
82	FINAL JUDGMENT.
83
84	IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO FUNDS
85	REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK
86	NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A
87	CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.
88
89	IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE FUNDS
90	YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER OR ANY OTHER
91	REPRESENTATION AND YOU DO NOT HAVE TO ASSIGN YOUR RIGHTS TO
92	ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY MONEY TO WHICH YOU ARE
93	ENTITLED. PLEASE CHECK WITH THE CLERK OF THE COURT, [INSERT
94	INFORMATION FOR APPLICABLE COURT] WITHIN TEN (10) DAYS AFTER THE
95	SALE TO SEE IF THERE IS ADDITIONAL MONEY FROM THE FORECLOSURE
96	SALE THAT THE CLERK HAS IN THE REGISTRY OF THE COURT.
97
98	IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP YOU
99	CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY CAREFULLY ALL
100	PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLY AN
101	ATTORNEY WHO IS NOT RELATED TO THE PERSON OFFERING TO HELP YOU,
102	TO MAKE SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND THAT
103	YOU ARE NOT TRANSFERRING YOUR PROPERTY OR THE EQUITY IN YOUR
104	PROPERTY WITHOUT THE PROPER INFORMATION. IF YOU CANNOT AFFORD TO
105	PAY AN ATTORNEY, YOU MAY CONTACT (INSERT LOCAL OR NEAREST LEGAL
106	AID OFFICE AND TELEPHONE PHONE NUMBER) TO SEE IF YOU QUALIFY
107	FINANCIALLY FOR THEIR SERVICES. IF THEY CANNOT ASSIST YOU, THEY
108	MAY BE ABLE TO REFER YOU TO A LOCAL BAR REFERRAL AGENCY OR
109	SUGGEST OTHER OPTIONS. IF YOU CHOOSE TO CONTACT (NAME OF LOCAL
110	OR NEAREST LEGAL AID OFFICE) FOR ASSISTANCE, YOU SHOULD DO SO AS
111	SOON AS POSSIBLE AFTER RECEIPT OF THIS NOTICE.
112
113	A copy of the final judgment shall be furnished by the clerk by
114	first class mail to the last known address of every party to the
115	action or to the attorney of record for such party. Any
116	irregularity in such mailing, including the failure to include
117	this statement in any final judgment or order, shall not affect
118	the validity or finality of the final judgment or order or any
119	sale held pursuant to the final judgment or order. Any sale held
120	more than 35 days after the final judgment or order shall not
121	affect the validity or finality of the final judgment or order
122	or any sale held pursuant to such judgment or order thereto.
123	(2)  PUBLICATION OF SALE.--Notice of sale shall be
124	published once a week for 2 consecutive weeks in a newspaper of
125	general circulation, as defined in chapter 50, published in the
126	county where the sale is to be held. The second publication
127	shall be at least 5 days before the sale. The notice shall
128	contain:
129	(a)  A description of the property to be sold.
130	(b)  The time and place of sale.
131	(c)  A statement that the sale will be made pursuant to the
132	order or final judgment.
133	(d)  The caption of the action.
134	(e)  The name of the clerk making the sale.
135	(f)  A statement that any person claiming an interest in
136	the surplus from the sale, if any, other than the property owner
137	as of the date of the lis pendens must file a claim within 60
138	days after the sale.
139
140	The clerk shall receive a service charge of up to $60 for
141	services in making, recording, and certifying the sale and title
142	that shall be assessed as costs. The court, in its discretion,
143	may enlarge the time of the sale. Notice of the changed time of
144	sale shall be published as provided herein.
145	(3)(2)  CONDUCT OF SALE; DEPOSIT REQUIRED.--The sale shall
146	be conducted at public auction at the time and place set forth
147	in the final judgment. The clerk shall receive the service
148	charge imposed in s. 45.035 for services in making, recording,
149	and certifying the sale and title that shall be assessed as
150	costs. At the time of the sale, the successful high bidder shall
151	post with the clerk a deposit equal to 5 percent of the final
152	bid. The deposit shall be applied to the sale price at the time
153	of payment. If final payment is not made within the prescribed
154	period, the clerk shall readvertise the sale as provided in this
155	section and pay all costs of the sale from the deposit. Any
156	remaining funds shall be applied toward the judgment.
157	(4)(3)  CERTIFICATION OF SALE.--After a sale of the
158	property the clerk shall promptly file a certificate of sale and
159	serve a copy of it on each party not in default in substantially
160	the following form:
161
162	(Caption of Action)
163
164	CERTIFICATE OF SALE
165
166	The undersigned clerk of the court certifies that notice of
167	public sale of the property described in the order or final
168	judgment was published in _____, a newspaper circulated in _____
169	County, Florida, in the manner shown by the proof of publication
170	attached, and on _____,   (year)  , the property was offered for
171	public sale to the highest and best bidder for cash. The highest
172	and best bid received for the property in the amount of $_______
173	was submitted by _____, to whom the property was sold. The
174	proceeds of the sale are retained for distribution in accordance
175	with the order or final judgment or law. WITNESS my hand and the
176	seal of this court on _____,   (year)  .
177	(Clerk)
178	By   (Deputy Clerk)
179	(5)(4)  CERTIFICATE OF TITLE.--If no objections to the sale
180	are filed within 10 days after filing the certificate of sale,
181	the clerk shall file a certificate of title and serve a copy of
182	it on each party not in default in substantially the following
183	form:
184
185	(Caption of Action)
186
187	CERTIFICATE OF TITLE
188
189	The undersigned clerk of the court certifies that he or she
190	executed and filed a certificate of sale in this action on
191	_____,   (year)  , for the property described herein and that no
192	objections to the sale have been filed within the time allowed
193	for filing objections.
194	The following property in _____ County, Florida:
195	(description)
196	was sold to .
197
198	WITNESS my hand and the seal of the court on _____,   (year)  .
199	(Clerk)
200	By   (Deputy Clerk)
201	(6)(5)  CONFIRMATION; RECORDING.--When the certificate of
202	title is filed the sale shall stand confirmed, and title to the
203	property shall pass to the purchaser named in the certificate
204	without the necessity of any further proceedings or instruments.
205	(6)  RECORDING.--The certificate of title shall be recorded
206	by the clerk.
207	(7)  DISBURSEMENTS OF PROCEEDS.--
208	(a)  On filing a certificate of title, the clerk shall
209	disburse the proceeds of the sale in accordance with the order
210	or final judgment and shall file a report of such disbursements
211	and serve a copy of it on each party not in default, and on the
212	Department of Revenue if the department was named as a defendant
213	in the action or if the Agency for Workforce Innovation or the
214	former Department of Labor and Employment Security was named as
215	a defendant while the Department of Revenue was providing
216	unemployment tax collection services under contract with the
217	Agency for Workforce Innovation through an interagency agreement
218	pursuant to s. 443.1316.
219	(b)  The certificate of disbursements shall be, in
220	substantially the following form:
221
222	(Caption of Action)
223
224	CERTIFICATE OF DISBURSEMENTS
225
226	The undersigned clerk of the court certifies that he or she
227	disbursed the proceeds received from the sale of the property as
228	provided in the order or final judgment to the persons and in
229	the amounts as follows:
230	Name     Amount
231
232	Total disbursements: $__________________
233	Surplus retained by clerk, if any: $_______________
234
235	IF YOU ARE A PERSON CLAIMING A RIGHT TO FUNDS REMAINING AFTER
236	THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60
237	DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT
238	BE ENTITLED TO ANY REMAINING FUNDS. AFTER 60 DAYS, ONLY THE
239	OWNER OF RECORD AS OF THE DATE OF THE LIS PENDENS MAY CLAIM THE
240	SURPLUS.
241
242	WITNESS my hand and the seal of the court on _____,   (year)  .
243	(Clerk)
244	By   (Deputy Clerk)
245
246	(c)  If no objections to the report are served within 10
247	days after it is filed, the disbursements by the clerk shall
248	stand approved as reported. If timely objections to the report
249	are served, they shall be heard by the court. Service of
250	objections to the report does not affect or cloud the title of
251	the purchaser of the property in any manner.
252	(d)  If there are funds remaining after payment of all
253	disbursements required by the final judgment of foreclosure and
254	shown on the certificate of disbursements, the surplus shall be
255	distributed as provided ss. 45.031-45.035.
256	(8)  VALUE OF PROPERTY.--The amount of the bid for the
257	property at the sale shall be conclusively presumed to be
258	sufficient consideration for the sale. Any party may serve an
259	objection to the amount of the bid within 10 days after the
260	clerk files the certificate of sale. If timely objections to the
261	bid are served, the objections shall be heard by the court.
262	Service of objections to the amount of the bid does not affect
263	or cloud the title of the purchaser in any manner. If the case
264	is one in which a deficiency judgment may be sought and
265	application is made for a deficiency, the amount bid at the sale
266	may be considered by the court as one of the factors in
267	determining a deficiency under the usual equitable principles.
268	(9)  EXECUTION SALES.--This section shall not apply to
269	property sold under executions.
270	Section 2.  Section 45.032, Florida Statutes, is created to
271	read:
272	45.032  Disbursement of surplus funds after judicial
273	sale.--
274	(1)  For purposes of ss. 45.031-45.035, the term:
275	(a)  "Owner of record" means the person or persons who
276	appear to be the owner of the property that is the subject of
277	the foreclosure proceeding on the date of the filing of the lis
278	pendens. In determining an owner of record, a person need not
279	perform a title search and examination but may rely on the
280	plaintiff's allegation of ownership in the complaint when
281	determining the owner of record.
282	(b) "Subordinate lienholder" means the holder of a
283	subordinate lien shown on the face of the pleadings as an
284	encumbrance on the property. A lien being foreclosed on is not a
285	subordinate lien. A subordinate lienholder includes, but is not
286	limited to, a subordinate mortgage, judgment, assessment lien,
287	or construction lien. However, the holder of a subordinate lien
288	shall not be deemed a subordinate lienholder if the holder was
289	paid in full from the proceeds of the sale.
290	(c)  "Surplus funds" or "surplus" means the funds remaining
291	after payment of all disbursements required by the final
292	judgment of foreclosure and shown on the certificate of
293	disbursements.
294	(d) "Surplus trustee" means a person qualifying as a
295	surplus trustee pursuant to s. 45.034.
296	(2)  There is established a rebuttable legal presumption
297	that the owner of record on the date of the filing of a lis
298	pendens is the person entitled to surplus funds after payment of
299	subordinate lienholders who have timely filed a claim. A person
300	claiming a legal right to the surplus as an assignee of the
301	rights of the owner of record must prove to the court that such
302	person is entitled to the funds. At any hearing regarding such
303	entitlement, the court shall consider the factors set forth in
304	s. 45.033 in determining whether an assignment is sufficient to
305	overcome the presumption. It is the intent of the Legislature to
306	abrogate the common law rule that surplus proceeds in a
307	foreclosure case are the property of the owner of the property
308	on the date of the foreclosure sale.
309	(3)  During the 60 days after the clerk issues a
310	certificate of disbursements, the clerk shall hold the surplus
311	pending a court order.
312	(a)  If the owner of record claims the surplus during the
313	60-day period and there is no subordinate lienholder, the court
314	shall order the clerk to deduct any applicable service charges
315	from the surplus and pay the remainder to the owner of record.
316	The clerk may establish a reasonable requirement that the owner
317	of record prove his or her identity before receiving the
318	disbursement. The clerk may assist an owner of record in making
319	a claim. An owner of record may use the following form in making
320	a claim:
321
322	(Caption of Action)
323
324	OWNER'S CLAIM FOR MORTGAGE FORECLOSURE SURPLUS
325
326	State of _____
327	County of _____
328	Under penalty of perjury, I (we) hereby certify that:
329	1.  I was (we were) the owner of the following described
330	real property in _____ County, Florida, prior to the foreclosure
331	sale and as of the date of the filing of the lis pendens:
332
333	(Legal description of real property)
334
335	2.  I (we) do not owe any money on any mortgage on the
336	property that was foreclosed other than the one that was paid
337	off by the foreclosure.
338	3.  I (we) do not owe any money that is the subject of an
339	unpaid judgment, condominium lien, cooperative lien, or
340	homeowners' association.
341	4.  I am (we are) not currently in bankruptcy.
342	5.  I (we) have not sold or assigned my (our) right to the
343	mortgage surplus.
344	6.  My (our) new address is: _____.
345	7.  If there is more than one owner entitled to the
346	surplus, we have agreed that the surplus should be paid _____
347	jointly, or to : _____, at the following address: _____.
348	8.  I (WE) UNDERSTAND THAT I (WE) AM (ARE) NOT REQUIRED TO
349	HAVE A LAWYER OR ANY OTHER REPRESENTATION AND I (WE) DO NOT HAVE
350	TO ASSIGN MY (OUR) RIGHTS TO ANYONE ELSE IN ORDER TO CLAIM ANY
351	MONEY TO WHICH I (WE) MAY BE ENTITLED.
352	9. I (WE) UNDERSTAND THAT THIS STATEMENT IS GIVEN UNDER
353	OATH, AND IF ANY STATEMENTS ARE UNTRUE THAT I (WE) MAY BE
354	PROSECUTED CRIMINALLY FOR PERJURY.
355
356	(Signatures)
357
358	Sworn to (or affirmed) and subscribed before me this _____
359	day of _____,   (year)  , by   (name of person making statement)
360	.
361	(Signature of Notary Public - State of Florida)
362	(Print, Type, or Stamp Commissioned Name of Notary Public)
363
364	Personally Known _____ OR Produced Identification _____
365
366	Type of Identification Produced_______________
367
368	(b)  If any person other than the owner of record claims an
369	interest in the proceeds during the 60-day period or if the
370	owner of record files a claim for the surplus but acknowledges
371	that one or more other persons may be entitled to part or all of
372	the surplus, the court shall set an evidentiary hearing to
373	determine entitlement to the surplus. At the evidentiary
374	hearing, a grantee or assignee has the burden of proving that he
375	or she is entitled to some or all of the surplus funds. The
376	court may grant summary judgment to a subordinate lienholder
377	prior to or at the evidentiary hearing. The court shall consider
378	the factors in s. 45.033 when hearing a claim that any person
379	other than a subordinate lienholder or the owner of record is
380	entitled to the surplus funds.
381	(c)  If no claim is filed during the 60-day period, the
382	clerk shall contact the Florida Clerks of Court Operations
383	Corporation, established by s. 28.35, for appointment of a
384	surplus trustee. The corporation shall make an appointment
385	within 10 days. Upon assignment, the clerk shall prepare a
386	notice of appointment of surplus trustee and shall furnish a
387	copy to the surplus trustee. The form of the notice may be as
388	follows:
389
390	(Caption of Action)
391
392	NOTICE OF APPOINTMENT OF SURPLUS TRUSTEE
393
394	The undersigned clerk of the court certifies that he or she
395	disbursed the proceeds received from the sale of the property as
396	provided in the order or final judgment to the persons named in
397	the certificate of disbursements, and that surplus funds of
398	$___________ remain and are subject to disbursement to the owner
399	of record. You have been appointed as surplus trustee for the
400	purpose of finding the owner of record in order for the clerk to
401	disburse the surplus, after deducting costs, to the owner of
402	record.
403	WITNESS my hand and the seal of the court on _____,   (year)  .
404	(Clerk)
405	By   (Deputy Clerk)
406
407	(4)  If the surplus trustee is unable to locate the owner
408	of record entitled to the surplus within 1 year after
409	appointment, the appointment shall terminate and the clerk shall
410	notify the surplus trustee that his or her appointment was
411	terminated. Thirty days after termination of the appointment of
412	the surplus trustee, the clerk shall treat the remaining funds
413	as unclaimed property to be deposited with the Chief Financial
414	Officer pursuant to chapter 717.
415	(5)  Proceedings regarding surplus funds in a foreclosure
416	case do not in any manner affect or cloud the title of the
417	purchaser at the foreclosure sale of the property.
418	Section 3.  Section 45.033, Florida Statutes, is created to
419	read:
420	45.033  Sale or assignment of rights to surplus funds in a
421	property subject to foreclosure.--
422	(1)  There is established a rebuttable presumption that the
423	owner of record of real property on the date of the filing of a
424	lis pendens is the person entitled to surplus funds after
425	payment of subordinate lienholders who have timely filed a
426	claim. A person claiming a legal right to the surplus as an
427	assignee of the rights of the owner of record must prove
428	entitlement to the surplus funds pursuant to this section. It is
429	the intent of the Legislature to abrogate the common law rule
430	that surplus proceeds in a foreclosure case are the property of
431	the owner of the property on the date of the foreclosure sale.
432	(2)  The presumption may be rebutted only by:
433	(a)  Proof that the grantee or assignee is a grantee or
434	assignee with the right to collect the surplus funds or any
435	portion or percentage of the surplus funds by virtue of a
436	voluntary transfer or assignment that qualifies as a transfer or
437	assignment under this section; or
438	(b)  Proof that the grantee or assignee is a grantee or
439	assignee by virtue of an involuntary transfer or assignment of
440	the right to collect the surplus. An involuntary transfer or
441	assignment may be as a result of inheritance or as a result of
442	the appointment of a guardian.
443	(3)  A voluntary transfer or assignment shall be a transfer
444	or assignment qualified under this subsection, thereby entitling
445	the transferee or assignee to the surplus funds or a portion or
446	percentage of the surplus funds, if:
447	(a)  The transfer or assignment is in writing and the
448	instrument:
449	1.  If executed prior to the foreclosure sale, includes a
450	financial disclosure that specifies the assessed value of the
451	property, a statement that the assessed value may be lower than
452	the actual value of the property, the approximate amount of any
453	debt encumbering the property, and the approximate amount of any
454	equity in the property. If the instrument was executed after the
455	foreclosure sale, the instrument must also specify the
456	foreclosure sale price and the amount of the surplus.
457	2.  Includes a statement that the owner does not need an
458	attorney or other representative to recover surplus funds in a
459	foreclosure.
460	3.  Specifies all forms of consideration paid for the
461	rights to the property or the assignment of the rights to any
462	surplus funds.
463	(b)  The transfer or assignment is filed with the court on
464	or before 60 days after the filing of the certificate of
465	disbursements.
466	(c)  There are funds available to pay the transfer or
467	assignment after payment of timely filed claims of subordinate
468	lienholders.
469	(d)  The transferor or assignee is qualified as a surplus
470	trustee, or could qualify as a surplus trustee, pursuant to s.
471	45.034.
472	(4)  The court shall honor a transfer or assignment that
473	complies with the requirements of subsection (3), in which case
474	the court shall order the clerk to pay the transferor or
475	assignee from the surplus.
476	(5)  If the court finds that a voluntary transfer or
477	assignment does not qualify under subsection (3) but that the
478	transfer or assignment was procured in good faith and with no
479	intent to defraud the transferor or assignor, the court may
480	order the clerk to pay the claim of the transferee or assignee
481	after payment of timely filed claims of subordinate lienholders.
482	(6)  If a voluntary transfer or assignment of the surplus
483	is set aside, the owner of record shall be entitled to payment
484	of the surplus after payment of timely filed claims of
485	subordinate lienholders, but the transferee or assignee may seek
486	in a separate proceeding repayment of any consideration paid for
487	the transfer or assignment.
488	(7)  This section does not apply to a deed, mortgage, or
489	deed in lieu of foreclosure unless a person other than the owner
490	of record is claiming that a deed or mortgage entitles the
491	person to surplus funds. Nothing in this section affects the
492	title or marketability of the real property that is the subject
493	of the deed or other instrument. Nothing in this section affects
494	the validity of a lien evidenced by a mortgage.
495	Section 4.  Section 45.034, Florida Statutes, is created to
496	read:
497	45.034  Qualifications and appointment of a surplus trustee
498	in foreclosure actions.--
499	(1)  A surplus trustee is a third-party trustee approved
500	pursuant to this section by the Florida Clerks of Court
501	Operations Corporation, established by s. 28.35. A surplus
502	trustee must be willing to accept cases on a statewide basis;
503	however, a surplus trustee may employ subcontractors that are
504	not qualified as a surplus trustee provided the surplus trustee
505	remains primarily responsible for the duties set forth in this
506	section.
507	(2)  To be a surplus trustee, an entity must apply for
508	certification with the Florida Clerks of Court Operations
509	Corporation. The application must contain:
510	(a)  The name and address of the entity and of one or more
511	principals of the entity.
512	(b)  A certificate of good standing from the Secretary of
513	State indicating that the entity is an entity registered in this
514	state.
515	(c)  A statement under oath by a principal of the entity
516	certifying that the entity, or a principal of the entity, has a
517	minimum of 12 months' experience in the recovery of surplus
518	funds in foreclosure actions.
519	(d)  Proof that the entity holds a valid Class "A" private
520	investigator license pursuant to chapter 493.
521	(e)  Proof that the entity carries a minimum of $500,000 in
522	liability insurance, cash reserves, or bonding.
523	(f)  A statement from an attorney licensed to practice in
524	this state certifying that the attorney is a principal of the
525	entity or is employed by the entity on a full-time basis and
526	that the attorney will supervise the management of the entity
527	during the entity's tenure as a surplus trustee.
528	(g)  A statement under oath by a principal of the entity
529	certifying that the principal understands his or her duty to
530	immediately notify the corporation if the principal ever fails
531	to qualify as an entity entitled to be a surplus trustee.
532	(h)  A nonrefundable application fee of $25.
533	(3)  The corporation shall certify any surplus trustee that
534	applies and qualifies. Certification shall be on a calendar year
535	basis. The corporation may renew a qualification upon receipt of
536	the $25 fee and a statement under oath from a principal of the
537	surplus trustee certifying that the surplus trustee continues to
538	qualify under this section.
539	(4)  The corporation shall develop a rotation system for
540	assignment of cases to all qualified surplus trustees. Upon
541	notification by a clerk that the clerk is holding a surplus in a
542	case, the corporation shall assign the case to the next
543	qualified surplus trustee in the rotation.
544	(5)  The primary duty of a surplus trustee is to locate the
545	owner of record within 1 year after appointment. Upon locating
546	the owner of record, the surplus trustee shall file a petition
547	with the court on behalf of the owner of record seeking
548	disbursement of the surplus funds. If more than one person
549	appears to be the owner of record, the surplus trustee shall
550	obtain agreement between such persons as to the payment of the
551	surplus, or file an interpleader. The interpleader may be filed
552	as part of the foreclosure case.
553	(6)  A surplus trustee is entitled to the following service
554	charges and fees which shall be disbursed by the clerk and
555	payable from the surplus:
556	(a)  Upon notice of appointment, a cost advance of 2
557	percent of the surplus.
558	(b)  Upon obtaining a court order disbursing the surplus to
559	the owner of record, a service charge of 10 percent of the
560	surplus.
561	Section 5.  Section 45.035, Florida Statutes, is created to
562	read:
563	45.035  Clerk's fees.--In addition to other fees or service
564	charges authorized by law, the clerk shall receive service
565	charges related to the judicial sales procedure set forth in ss.
566	45.031-45.034 and this section:
567	(1)  The clerk shall receive a service charge of $60 for
568	services in making, recording, and certifying the sale and
569	title, which service charge shall be assessed as costs and shall
570	be advanced by the plaintiff before the sale.
571	(2)  If there is a surplus resulting from the sale, the
572	clerk may receive the following service charges, which shall be
573	deducted from the surplus:
574	(a)  The clerk may withhold the sum of $25 from the surplus
575	which may only be used for purposes of educating the public as
576	to the rights of homeowners regarding foreclosure proceedings.
577	(b)  The clerk is entitled to a service charge of $10 for
578	notifying a surplus trustee of his or her appointment.
579	(c)  The clerk is entitled to a service charge of $10 for
580	each disbursement of surplus proceeds.
581	(d)  The clerk is entitled to a service charge of $10 for
582	contacting the Florida Clerks of Court Operations Corporation
583	for assignment of the case to a surplus trustee, furnishing the
584	surplus trustee with a copy of the final judgment and the
585	certificate of disbursements, and disbursing to the surplus
586	trustee the trustee's cost advance.
587	Section 6.  Section 501.2078, Florida Statutes, is created
588	to read:
589	501.2078  Violations involving individual homeowners during
590	the course of residential foreclosure proceedings; civil
591	penalties.--
592	(1)  As used in this section:
593	(a)  "Homeowner" means any individual who is the owner of
594	the property subject to a residential foreclosure proceeding.
595	(b)  "Residential foreclosure proceeding" means any action
596	in a court of this state in which a party seeks to foreclose on
597	a mortgage encumbering the mortgagor's primary dwelling.
598	(c)  "Victimize" means any course of action intended to
599	dupe, swindle, or cheat a homeowner subject to a residential
600	foreclosure proceeding. The factors that a court shall review
601	when determining whether a course of action is victimizing a
602	homeowner are:
603	1.  The compensation received relative to the risk and the
604	amount of work involved.
605	2.  The number of homeowners involved.
606	3.  The relative bargaining position of the parties.
607	4.  The relative knowledge and sophistication of the
608	parties.
609	5.  Representations made in the inducement.
610	6.  The timing of the agreement.
611	(2)  Any person, other than a financial institution as
612	defined in s. 655.005, who willfully uses, or has willfully
613	used, a method, act, or practice in violation of this part,
614	which method, act, or practice victimizes or attempts to
615	victimize homeowners during the course of a residential
616	foreclosure proceeding, and in committing such violation knew or
617	should have known that such conduct was unfair or deceptive, is
618	liable for a civil penalty of not more than $15,000 for each
619	such violation.
620	(3)  Any order of restitution or reimbursement based on a
621	violation of this part committed against a homeowner in a
622	residential foreclosure proceeding has priority over the
623	imposition of any civil penalty for such violation pursuant to
624	this section.
625	(4)  Civil penalties collected pursuant to this section
626	shall be deposited into the Legal Affairs Revolving Trust Fund
627	of the Department of Legal Affairs and allocated solely to the
628	Department of Legal Affairs for the purpose of preparing and
629	distributing consumer education materials, programs, and
630	seminars to benefit homeowners in residential foreclosure
631	proceedings or to further enforcement efforts.
632	(5)  This section does not apply to:
633	(a)  The act of encumbering the dwelling subject to a
634	residential foreclosure proceeding with a substitute or
635	additional lien.
636	(b)  A deed in lieu of foreclosure, a workout agreement, a
637	bankruptcy plan, or any other agreement between a foreclosing
638	lender and a homeowner.
639	(c)  Any action taken by a lender, mortgage broker,
640	assignee of a mortgage, or counsel for any such entity, in
641	foreclosing a mortgage or collecting on the note.
642	Section 7.  Section 702.035, Florida Statutes, is amended
643	to read:
644	702.035  Legal notice concerning foreclosure
645	proceedings.--Whenever a legal advertisement, publication, or
646	notice relating to a foreclosure proceeding is required to be
647	placed in a newspaper, it is the responsibility of the
648	petitioner or petitioner's attorney to place such advertisement,
649	publication, or notice. The advertisement, publication, or
650	notice shall be placed directly by the attorney for the
651	petitioner, by the petitioner if acting pro se, or by the clerk
652	of the court. Only the actual costs charged by the newspaper for
653	the advertisement, publication, or notice may be charged as
654	costs in the action.
655	Section 8.  Subsection (9) of section 201.02, Florida
656	Statutes, is amended to read:
657	201.02  Tax on deeds and other instruments relating to real
658	property or interests in real property.--
659	(9)  A certificate of title issued by the clerk of court
660	under s. 45.031(5)(4) in a judicial sale of real property under
661	an order or final judgment issued pursuant to a foreclosure
662	proceeding is subject to the tax imposed by subsection (1).
663	However, the amount of the tax shall be computed based solely on
664	the amount of the highest and best bid received for the property
665	at the foreclosure sale. This subsection is intended to clarify
666	existing law and shall be applied retroactively.
667	Section 9.  This act shall take effect July 1, 2006.

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