HB 0065

CS

CHAMBER ACTION

1	The Judiciary Appropriations Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to foreclosure proceedings; amending s.
7	45.031, F.S.; revising procedures and requirements for
8	judicial sales; creating s. 45.032, F.S.; providing for
9	disbursement of surplus funds after a judicial sale;
10	providing definitions; establishing a rebuttable
11	presumption of entitlement to surplus funds in certain
12	filings; providing legislative intent; providing
13	requirements and procedures for disbursement of surplus
14	funds by the clerk of court; providing for appointment of
15	a surplus trustee under certain circumstances; providing
16	for notice of appointment; providing for termination of
17	appointment; providing for treatment of surplus funds as
18	unclaimed property under certain circumstances; providing
19	construction relating to title of property in a
20	foreclosure sale; creating s. 45.033, F.S.; providing for
21	a sale or assignment of rights to surplus funds in a
22	property subject to foreclosure; establishing a rebuttable
23	presumption of entitlement to surplus funds; providing
24	requirements for proof; providing legislative intent;
25	providing requirements for rebutting the presumption;
26	providing requirements for transfers or assignments of
27	surplus funds; providing duties and authority of a court
28	in payment of surplus funds under a transfer or
29	assignment; providing for nonapplication to certain
30	instruments; specifying absence of effect on title or
31	marketability of certain property or validity of certain
32	liens; creating s. 45.034, F.S.; providing qualifications
33	for appointment as a surplus trustee by the Department of
34	Financial Services; providing requirements for appointment
35	as a surplus trustee; providing for application and
36	renewal fees; providing duties of the department in
37	certifying surplus trustees; requiring the department to
38	establish a rotation system for assignment of cases to
39	surplus trustees; providing duties of a surplus trustee;
40	providing entitlement of a surplus trustee to certain
41	service charges and fees; creating s. 45.035, F.S.;
42	specifying service charges for clerks of court for
43	administering judicial sales and surplus funds; amending
44	s. 50.013, F.S.; specifying different newspaper legal
45	notice and process requirements for counties of different
46	population sizes; creating s. 501.2078, F.S.; providing
47	definitions; providing a civil penalty for knowingly using
48	unfair or deceptive homeowner victimization methods, acts,
49	or practices in residential foreclosure proceedings;
50	specifying higher priority of an order of restitution or
51	reimbursement over imposition of a civil penalty;
52	providing for deposit of civil penalties into the Legal
53	Affairs Revolving Trust Fund of the Department of Legal
54	Affairs; allocating such funds for certain purposes;
55	specifying nonapplication to certain encumbrances, deeds,
56	or actions; amending s. 702.035, F.S.; limiting certain
57	costs chargeable in a foreclosure proceeding; amending s.
58	201.02, F.S.; correcting a cross-reference; providing an
59	effective date.
60
61	Be It Enacted by the Legislature of the State of Florida:
62
63	Section 1.  Section 45.031, Florida Statutes, is amended to
64	read:
65	45.031  Judicial sales procedure.--In any sale of real or
66	personal property under an order or judgment, the procedures
67	provided in ss. 45.031-45.035 following procedure may be
68	followed as an alternative to any other sale procedure if so
69	ordered by the court.:
70	(1)  FINAL JUDGMENT SALE BY CLERK.--In the order or final
71	judgment, the court shall direct the clerk to sell the property
72	at public sale on a specified day that shall be not less than 20
73	days or more than 35 days after the date thereof, on terms and
74	conditions specified in the order or judgment. A sale may be
75	held more than 35 days after the date of final judgment or order
76	if the plaintiff or plaintiff's attorney consents to such time.
77	The final judgment shall contain the following statement in
78	conspicuous type:
79
80	IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE
81	ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE
82	ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THIS
83	FINAL JUDGMENT.
84
85	IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO FUNDS
86	REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK
87	NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A
88	CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.
89
90	IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE FUNDS
91	YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER OR ANY OTHER
92	REPRESENTATION AND YOU DO NOT HAVE TO ASSIGN YOUR RIGHTS TO
93	ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY MONEY TO WHICH YOU ARE
94	ENTITLED. PLEASE CHECK WITH THE CLERK OF THE COURT, [INSERT
95	INFORMATION FOR APPLICABLE COURT] WITHIN TEN (10) DAYS AFTER THE
96	SALE TO SEE IF THERE IS ADDITIONAL MONEY FROM THE FORECLOSURE
97	SALE THAT THE CLERK HAS IN THE REGISTRY OF THE COURT.
98
99	IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP YOU
100	CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY CAREFULLY ALL
101	PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLY AN
102	ATTORNEY WHO IS NOT RELATED TO THE PERSON OFFERING TO HELP YOU,
103	TO MAKE SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND THAT
104	YOU ARE NOT TRANSFERRING YOUR PROPERTY OR THE EQUITY IN YOUR
105	PROPERTY WITHOUT THE PROPER INFORMATION. IF YOU CANNOT AFFORD TO
106	PAY AN ATTORNEY, YOU MAY CONTACT (INSERT LOCAL OR NEAREST LEGAL
107	AID OFFICE AND TELEPHONE PHONE NUMBER) TO SEE IF YOU QUALIFY
108	FINANCIALLY FOR THEIR SERVICES. IF THEY CANNOT ASSIST YOU, THEY
109	MAY BE ABLE TO REFER YOU TO A LOCAL BAR REFERRAL AGENCY OR
110	SUGGEST OTHER OPTIONS. IF YOU CHOOSE TO CONTACT (NAME OF LOCAL
111	OR NEAREST LEGAL AID OFFICE) FOR ASSISTANCE, YOU SHOULD DO SO AS
112	SOON AS POSSIBLE AFTER RECEIPT OF THIS NOTICE.
113
114	A copy of the final judgment shall be furnished by the clerk by
115	first class mail to the last known address of every party to the
116	action or to the attorney of record for such party. Any
117	irregularity in such mailing, including the failure to include
118	this statement in any final judgment or order, shall not affect
119	the validity or finality of the final judgment or order or any
120	sale held pursuant to the final judgment or order. Any sale held
121	more than 35 days after the final judgment or order shall not
122	affect the validity or finality of the final judgment or order
123	or any sale held pursuant to such judgment or order thereto.
124	(2)  PUBLICATION OF SALE.--Notice of sale shall be
125	published once a week for 2 consecutive weeks in a newspaper of
126	general circulation, as defined in chapter 50, published in the
127	county where the sale is to be held. The second publication
128	shall be at least 5 days before the sale. The notice shall
129	contain:
130	(a)  A description of the property to be sold.
131	(b)  The time and place of sale.
132	(c)  A statement that the sale will be made pursuant to the
133	order or final judgment.
134	(d)  The caption of the action.
135	(e)  The name of the clerk making the sale.
136	(f)  A statement that any person claiming an interest in
137	the surplus from the sale, if any, other than the property owner
138	as of the date of the lis pendens must file a claim within 60
139	days after the sale.
140
141	The clerk shall receive a service charge of up to $60 for
142	services in making, recording, and certifying the sale and title
143	that shall be assessed as costs. The court, in its discretion,
144	may enlarge the time of the sale. Notice of the changed time of
145	sale shall be published as provided herein.
146	(3)(2)  CONDUCT OF SALE; DEPOSIT REQUIRED.--The sale shall
147	be conducted at public auction at the time and place set forth
148	in the final judgment. The clerk shall receive the service
149	charge imposed in s. 45.035 for services in making, recording,
150	and certifying the sale and title that shall be assessed as
151	costs. At the time of the sale, the successful high bidder shall
152	post with the clerk a deposit equal to 5 percent of the final
153	bid. The deposit shall be applied to the sale price at the time
154	of payment. If final payment is not made within the prescribed
155	period, the clerk shall readvertise the sale as provided in this
156	section and pay all costs of the sale from the deposit. Any
157	remaining funds shall be applied toward the judgment.
158	(4)(3)  CERTIFICATION OF SALE.--After a sale of the
159	property the clerk shall promptly file a certificate of sale and
160	serve a copy of it on each party not in default in substantially
161	the following form:
162
163	(Caption of Action)
164
165	CERTIFICATE OF SALE
166
167	The undersigned clerk of the court certifies that notice of
168	public sale of the property described in the order or final
169	judgment was published in _____, a newspaper circulated in _____
170	County, Florida, in the manner shown by the proof of publication
171	attached, and on _____,   (year)  , the property was offered for
172	public sale to the highest and best bidder for cash. The highest
173	and best bid received for the property in the amount of $_______
174	was submitted by _____, to whom the property was sold. The
175	proceeds of the sale are retained for distribution in accordance
176	with the order or final judgment or law. WITNESS my hand and the
177	seal of this court on _____,   (year)  .
178	(Clerk)
179	By   (Deputy Clerk)
180	(5)(4)  CERTIFICATE OF TITLE.--If no objections to the sale
181	are filed within 10 days after filing the certificate of sale,
182	the clerk shall file a certificate of title and serve a copy of
183	it on each party not in default in substantially the following
184	form:
185
186	(Caption of Action)
187
188	CERTIFICATE OF TITLE
189
190	The undersigned clerk of the court certifies that he or she
191	executed and filed a certificate of sale in this action on
192	_____,   (year)  , for the property described herein and that no
193	objections to the sale have been filed within the time allowed
194	for filing objections.
195	The following property in _____ County, Florida:
196	(description)
197	was sold to .
198
199	WITNESS my hand and the seal of the court on _____,   (year)  .
200	(Clerk)
201	By   (Deputy Clerk)
202	(6)(5)  CONFIRMATION; RECORDING.--When the certificate of
203	title is filed the sale shall stand confirmed, and title to the
204	property shall pass to the purchaser named in the certificate
205	without the necessity of any further proceedings or instruments.
206	(6)  RECORDING.--The certificate of title shall be recorded
207	by the clerk.
208	(7)  DISBURSEMENTS OF PROCEEDS.--
209	(a)  On filing a certificate of title, the clerk shall
210	disburse the proceeds of the sale in accordance with the order
211	or final judgment and shall file a report of such disbursements
212	and serve a copy of it on each party not in default, and on the
213	Department of Revenue if the department was named as a defendant
214	in the action or if the Agency for Workforce Innovation or the
215	former Department of Labor and Employment Security was named as
216	a defendant while the Department of Revenue was providing
217	unemployment tax collection services under contract with the
218	Agency for Workforce Innovation through an interagency agreement
219	pursuant to s. 443.1316.
220	(b)  The certificate of disbursements shall be, in
221	substantially the following form:
222
223	(Caption of Action)
224
225	CERTIFICATE OF DISBURSEMENTS
226
227	The undersigned clerk of the court certifies that he or she
228	disbursed the proceeds received from the sale of the property as
229	provided in the order or final judgment to the persons and in
230	the amounts as follows:
231	Name     Amount
232
233	Total disbursements: $__________________
234	Surplus retained by clerk, if any: $_______________
235
236	IF YOU ARE A PERSON CLAIMING A RIGHT TO FUNDS REMAINING AFTER
237	THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60
238	DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT
239	BE ENTITLED TO ANY REMAINING FUNDS. AFTER 60 DAYS, ONLY THE
240	OWNER OF RECORD AS OF THE DATE OF THE LIS PENDENS MAY CLAIM THE
241	SURPLUS.
242
243	WITNESS my hand and the seal of the court on _____,   (year)  .
244	(Clerk)
245	By   (Deputy Clerk)
246
247	(c)  If no objections to the report are served within 10
248	days after it is filed, the disbursements by the clerk shall
249	stand approved as reported. If timely objections to the report
250	are served, they shall be heard by the court. Service of
251	objections to the report does not affect or cloud the title of
252	the purchaser of the property in any manner.
253	(d)  If there are funds remaining after payment of all
254	disbursements required by the final judgment of foreclosure and
255	shown on the certificate of disbursements, the surplus shall be
256	distributed as provided ss. 45.031-45.035.
257	(8)  VALUE OF PROPERTY.--The amount of the bid for the
258	property at the sale shall be conclusively presumed to be
259	sufficient consideration for the sale. Any party may serve an
260	objection to the amount of the bid within 10 days after the
261	clerk files the certificate of sale. If timely objections to the
262	bid are served, the objections shall be heard by the court.
263	Service of objections to the amount of the bid does not affect
264	or cloud the title of the purchaser in any manner. If the case
265	is one in which a deficiency judgment may be sought and
266	application is made for a deficiency, the amount bid at the sale
267	may be considered by the court as one of the factors in
268	determining a deficiency under the usual equitable principles.
269	(9)  EXECUTION SALES.--This section shall not apply to
270	property sold under executions.
271	Section 2.  Section 45.032, Florida Statutes, is created to
272	read:
273	45.032  Disbursement of surplus funds after judicial
274	sale.--
275	(1)  For purposes of ss. 45.031-45.035, the term:
276	(a)  "Owner of record" means the person or persons who
277	appear to be the owner of the property that is the subject of
278	the foreclosure proceeding on the date of the filing of the lis
279	pendens. In determining an owner of record, a person need not
280	perform a title search and examination but may rely on the
281	plaintiff's allegation of ownership in the complaint when
282	determining the owner of record.
283	(b)  "Subordinate lienholder" means the holder of a
284	subordinate lien shown on the face of the pleadings as an
285	encumbrance on the property. A lien being foreclosed on is not a
286	subordinate lien. A subordinate lienholder includes, but is not
287	limited to, a subordinate mortgage, judgment, assessment lien,
288	or construction lien. However, the holder of a subordinate lien
289	shall not be deemed a subordinate lienholder if the holder was
290	paid in full from the proceeds of the sale.
291	(c)  "Surplus funds" or "surplus" means the funds remaining
292	after payment of all disbursements required by the final
293	judgment of foreclosure and shown on the certificate of
294	disbursements.
295	(d)  "Surplus trustee" means a person qualifying as a
296	surplus trustee pursuant to s. 45.034.
297	(2)  There is established a rebuttable legal presumption
298	that the owner of record on the date of the filing of a lis
299	pendens is the person entitled to surplus funds after payment of
300	subordinate lienholders who have timely filed a claim. A person
301	claiming a legal right to the surplus as an assignee of the
302	rights of the owner of record must prove to the court that such
303	person is entitled to the funds. At any hearing regarding such
304	entitlement, the court shall consider the factors set forth in
305	s. 45.033 in determining whether an assignment is sufficient to
306	overcome the presumption. It is the intent of the Legislature to
307	abrogate the common law rule that surplus proceeds in a
308	foreclosure case are the property of the owner of the property
309	on the date of the foreclosure sale.
310	(3)  During the 60 days after the clerk issues a
311	certificate of disbursements, the clerk shall hold the surplus
312	pending a court order.
313	(a)  If the owner of record claims the surplus during the
314	60-day period and there is no subordinate lienholder, the court
315	shall order the clerk to deduct any applicable service charges
316	from the surplus and pay the remainder to the owner of record.
317	The clerk may establish a reasonable requirement that the owner
318	of record prove his or her identity before receiving the
319	disbursement. The clerk may assist an owner of record in making
320	a claim. An owner of record may use the following form in making
321	a claim:
322
323	(Caption of Action)
324
325	OWNER'S CLAIM FOR MORTGAGE FORECLOSURE SURPLUS
326
327	State of _____
328	County of _____
329	Under penalty of perjury, I (we) hereby certify that:
330	1.  I was (we were) the owner of the following described
331	real property in _____ County, Florida, prior to the foreclosure
332	sale and as of the date of the filing of the lis pendens:
333
334	(Legal description of real property)
335
336	2.  I (we) do not owe any money on any mortgage on the
337	property that was foreclosed other than the one that was paid
338	off by the foreclosure.
339	3.  I (we) do not owe any money that is the subject of an
340	unpaid judgment, condominium lien, cooperative lien, or
341	homeowners' association.
342	4.  I am (we are) not currently in bankruptcy.
343	5.  I (we) have not sold or assigned my (our) right to the
344	mortgage surplus.
345	6.  My (our) new address is: _____.
346	7.  If there is more than one owner entitled to the
347	surplus, we have agreed that the surplus should be paid _____
348	jointly, or to : _____, at the following address: _____.
349	8.  I (WE) UNDERSTAND THAT I (WE) AM (ARE) NOT REQUIRED TO
350	HAVE A LAWYER OR ANY OTHER REPRESENTATION AND I (WE) DO NOT HAVE
351	TO ASSIGN MY (OUR) RIGHTS TO ANYONE ELSE IN ORDER TO CLAIM ANY
352	MONEY TO WHICH I (WE) MAY BE ENTITLED.
353	9.  I (WE) UNDERSTAND THAT THIS STATEMENT IS GIVEN UNDER
354	OATH, AND IF ANY STATEMENTS ARE UNTRUE THAT I (WE) MAY BE
355	PROSECUTED CRIMINALLY FOR PERJURY.
356
357	(Signatures)
358
359	Sworn to (or affirmed) and subscribed before me this _____
360	day of _____,   (year)  , by   (name of person making statement)
361	.
362	(Signature of Notary Public - State of Florida)
363	(Print, Type, or Stamp Commissioned Name of Notary Public)
364
365	Personally Known _____ OR Produced Identification _____
366
367	Type of Identification Produced_______________
368
369	(b)  If any person other than the owner of record claims an
370	interest in the proceeds during the 60-day period or if the
371	owner of record files a claim for the surplus but acknowledges
372	that one or more other persons may be entitled to part or all of
373	the surplus, the court shall set an evidentiary hearing to
374	determine entitlement to the surplus. At the evidentiary
375	hearing, an equity assignee has the burden of proving that he or
376	she is entitled to some or all of the surplus funds. The court
377	may grant summary judgment to a subordinate lienholder prior to
378	or at the evidentiary hearing. The court shall consider the
379	factors in s. 45.033 when hearing a claim that any person other
380	than a subordinate lienholder or the owner of record is entitled
381	to the surplus funds.
382	(c)  If no claim is filed during the 60-day period, the
383	clerk shall appoint a surplus trustee from a list of qualified
384	surplus trustees as authorized in s. 45.034. Upon such
385	appointment, the clerk shall prepare a notice of appointment of
386	surplus trustee and shall furnish a copy to the surplus trustee.
387	The form of the notice may be as follows:
388
389	(Caption of Action)
390
391	NOTICE OF APPOINTMENT OF SURPLUS TRUSTEE
392
393	The undersigned clerk of the court certifies that he or she
394	disbursed the proceeds received from the sale of the property as
395	provided in the order or final judgment to the persons named in
396	the certificate of disbursements, and that surplus funds of
397	$___________ remain and are subject to disbursement to the owner
398	of record. You have been appointed as surplus trustee for the
399	purpose of finding the owner of record in order for the clerk to
400	disburse the surplus, after deducting costs, to the owner of
401	record.
402	WITNESS my hand and the seal of the court on _____,   (year)  .
403	(Clerk)
404	By   (Deputy Clerk)
405
406	(4)  If the surplus trustee is unable to locate the owner
407	of record entitled to the surplus within 1 year after
408	appointment, the appointment shall terminate and the clerk shall
409	notify the surplus trustee that his or her appointment was
410	terminated. Thirty days after termination of the appointment of
411	the surplus trustee, the clerk shall treat the remaining funds
412	as unclaimed property to be deposited with the Chief Financial
413	Officer pursuant to chapter 717.
414	(5)  Proceedings regarding surplus funds in a foreclosure
415	case do not in any manner affect or cloud the title of the
416	purchaser at the foreclosure sale of the property.
417	Section 3.  Section 45.033, Florida Statutes, is created to
418	read:
419	45.033  Sale or assignment of rights to surplus funds in a
420	property subject to foreclosure.--
421	(1)  There is established a rebuttable presumption that the
422	owner of record of real property on the date of the filing of a
423	lis pendens is the person entitled to surplus funds after
424	payment of subordinate lienholders who have timely filed a
425	claim. A person claiming a legal right to the surplus as an
426	assignee of the rights of the owner of record must prove
427	entitlement to the surplus funds pursuant to this section. It is
428	the intent of the Legislature to abrogate the common law rule
429	that surplus proceeds in a foreclosure case are the property of
430	the owner of the property on the date of the foreclosure sale.
431	(2)  The presumption may be rebutted only by:
432	(a)  The grantee or assignee of a voluntary transfer or
433	assignment establishing a right to collect the surplus funds or
434	any portion or percentage of the surplus funds by proving that
435	the transfer or assignment qualifies as a voluntary transfer or
436	assignment as provided in subsection (3); or
437	(b)  The grantee or assignee proving that the grantee or
438	assignee is a grantee or assignee by virtue of an involuntary
439	transfer or assignment of the right to collect the surplus. An
440	involuntary transfer or assignment may be as a result of
441	inheritance or as a result of the appointment of a guardian.
442	(3)  A voluntary transfer or assignment shall be a transfer
443	or assignment qualified under this subsection, thereby entitling
444	the transferee or assignee to the surplus funds or a portion or
445	percentage of the surplus funds, if:
446	(a)  The transfer or assignment is in writing and the
447	instrument:
448	1.  If executed prior to the foreclosure sale, includes a
449	financial disclosure that specifies the assessed value of the
450	property, a statement that the assessed value may be lower than
451	the actual value of the property, the approximate amount of any
452	debt encumbering the property, and the approximate amount of any
453	equity in the property. If the instrument was executed after the
454	foreclosure sale, the instrument must also specify the
455	foreclosure sale price and the amount of the surplus.
456	2.  Includes a statement that the owner does not need an
457	attorney or other representative to recover surplus funds in a
458	foreclosure.
459	3.  Specifies all forms of consideration paid for the
460	rights to the property or the assignment of the rights to any
461	surplus funds.
462	(b)  The transfer or assignment is filed with the court on
463	or before 60 days after the filing of the certificate of
464	disbursements.
465	(c)  There are funds available to pay the transfer or
466	assignment after payment of timely filed claims of subordinate
467	lienholders.
468	(d)  The transferor or assignee is qualified as a surplus
469	trustee, or could qualify as a surplus trustee, pursuant to s.
470	45.034.
471	(4)  The court shall honor a transfer or assignment that
472	complies with the requirements of subsection (3), in which case
473	the court shall order the clerk to pay the transferor or
474	assignee from the surplus.
475	(5)  If the court finds that a voluntary transfer or
476	assignment does not qualify under subsection (3) but that the
477	transfer or assignment was procured in good faith and with no
478	intent to defraud the transferor or assignor, the court may
479	order the clerk to pay the claim of the transferee or assignee
480	after payment of timely filed claims of subordinate lienholders.
481	(6)  If a voluntary transfer or assignment of the surplus
482	is set aside, the owner of record shall be entitled to payment
483	of the surplus after payment of timely filed claims of
484	subordinate lienholders, but the transferee or assignee may seek
485	in a separate proceeding repayment of any consideration paid for
486	the transfer or assignment.
487	(7)  This section does not apply to a deed, mortgage, or
488	deed in lieu of foreclosure unless a person other than the owner
489	of record is claiming that a deed or mortgage entitles the
490	person to surplus funds. Nothing in this section affects the
491	title or marketability of the real property that is the subject
492	of the deed or other instrument. Nothing in this section affects
493	the validity of a lien evidenced by a mortgage.
494	Section 4.  Section 45.034, Florida Statutes, is created to
495	read:
496	45.034  Qualifications and appointment of a surplus trustee
497	in foreclosure actions.--
498	(1)  A surplus trustee is a third-party trustee approved
499	pursuant to this section by the Department of Financial
500	Services. A surplus trustee must be willing to accept cases on a
501	statewide basis; however, a surplus trustee may employ
502	subcontractors that are not qualified as a surplus trustee
503	provided the surplus trustee remains primarily responsible for
504	the duties set forth in this section.
505	(2)  A surplus trustee is an entity that holds and
506	administers surplus proceeds from a foreclosure pursuant to ss.
507	45.031-45.035.
508	(3)  To be a surplus trustee, an entity must apply for
509	certification with the Department of Financial Services. The
510	application must contain:
511	(a)  The name and address of the entity and of one or more
512	principals of the entity.
513	(b)  A certificate of good standing from the Secretary of
514	State indicating that the entity is an entity registered in this
515	state.
516	(c)  A statement under oath by a principal of the entity
517	certifying that the entity, or a principal of the entity, has a
518	minimum of 12 months' experience in the recovery of surplus
519	funds in foreclosure actions.
520	(d)  Proof that the entity holds a valid Class "A" private
521	investigator license pursuant to chapter 493.
522	(e)  Proof that the entity carries a minimum of $500,000 in
523	liability insurance, cash reserves, or bonding.
524	(f)  A statement from an attorney licensed to practice in
525	this state certifying that the attorney is a principal of the
526	entity or is employed by the entity on a full-time basis and
527	that the attorney will supervise the management of the entity
528	during the entity's tenure as a surplus trustee.
529	(g)  A statement under oath by a principal of the entity
530	certifying that the principal understands his or her duty to
531	immediately notify the department if the principal ever fails to
532	qualify as an entity entitled to be a surplus trustee.
533	(h)  A nonrefundable application fee of $25.
534	(4)  The Department of Financial Services shall certify any
535	surplus trustee that applies and qualifies. Certification shall
536	be on a calendar year basis. The department may renew a
537	qualification upon receipt of the $25 fee and a statement under
538	oath from a principal of the surplus trustee certifying that the
539	surplus trustee continues to qualify under this section.
540	(5)  The Department of Financial Services shall develop a
541	rotation system for assignment of cases to all qualified surplus
542	trustees.
543	(6)  The primary duty of a surplus trustee is to locate the
544	owner of record within 1 year after appointment. Upon locating
545	the owner of record, the surplus trustee shall file a petition
546	with the court on behalf of the owner of record seeking
547	disbursement of the surplus funds. If more than one person
548	appears to be the owner of record, the surplus trustee shall
549	obtain agreement between such persons as to the payment of the
550	surplus, or file an interpleader. The interpleader may be filed
551	as part of the foreclosure case.
552	(7)  A surplus trustee is entitled to the following service
553	charges and fees which shall be disbursed by the clerk and
554	payable from the surplus:
555	(a)  Upon obtaining a court order, a cost advance of 2
556	percent of the surplus.
557	(b)  Upon obtaining a court order disbursing the surplus to
558	the owner of record, a service charge of 10 percent of the
559	surplus.
560	Section 5.  Section 45.035, Florida Statutes, is created to
561	read:
562	45.035  Clerk's fees.--In addition to other fees or service
563	charges authorized by law, the clerk shall receive service
564	charges related to the judicial sales procedure set forth in ss.
565	45.031-45.034 and this section:
566	(1)  The clerk shall receive a service charge of $60 for
567	services in making, recording, and certifying the sale and
568	title, which service charge shall be assessed as costs and shall
569	be advanced by the plaintiff before the sale.
570	(2)  If there is a surplus resulting from the sale, the
571	clerk may receive the following service charges, which shall be
572	deducted from the surplus:
573	(a)  The clerk may withhold the sum of $25 from the surplus
574	which may only be used for purposes of educating the public as
575	to the rights of homeowners regarding foreclosure proceedings.
576	(b)  The clerk is entitled to a service charge of $10 for
577	notifying a surplus trustee of his or her appointment.
578	(c)  The clerk is entitled to a service charge of $10 for
579	each disbursement of surplus proceeds.
580	(d)  The clerk is entitled to a service charge of $10 for
581	appointing a surplus trustee, furnishing the surplus trustee
582	with a copy of the final judgment and the certificate of
583	disbursements, and disbursing to the surplus trustee the
584	trustee's cost advance.
585	Section 6.  Section 50.031, Florida Statutes, is amended to
586	read:
587	50.031  Newspapers in which legal notices and process may
588	be published.--No notice or publication required to be published
589	in a newspaper in the nature of or in lieu of process of any
590	kind, nature, character or description provided for under any
591	law of the state, whether heretofore or hereafter enacted, and
592	whether pertaining to constructive service, or the initiating,
593	assuming, reviewing, exercising or enforcing jurisdiction or
594	power, by any court in this state, or any notice of sale of
595	property, real or personal, for taxes, state, county or
596	municipal, or sheriff's, guardian's or administrator's or any
597	sale made pursuant to any judicial order, decree or statute or
598	any other publication or notice pertaining to any affairs of the
599	state, or any county, municipality or other political
600	subdivision thereof, shall be deemed to have been published in
601	accordance with the statutes providing for such publication,
602	unless, for a county with less than a total population of 1
603	million as reflected in the most recent Official Decennial
604	Census of the United States Census Bureau as shown on the
605	official website of the United State Census Bureau, the same
606	shall have been published for the prescribed period of time
607	required for such publication, in a newspaper which at the time
608	of such publication shall have been in existence for 1 year and
609	shall have been entered as periodicals matter at a post office
610	in the county where published, or in a newspaper which is a
611	direct successor of a newspaper which together have been so
612	published. For counties with more than 1 million total
613	population as reflected in the most recent Official Decennial
614	Census of the United States Census Bureau as shown on the
615	official website of the United States Census Bureau, any notice
616	of publication shall be deemed to have been published in
617	accordance with the law if the notice is published in a
618	newspaper that has been entered as a periodical matter at a post
619	office in the county in which the newspaper is published, is
620	published a minimum of 5 days a week, and has been in existence
621	and published a minimum of 5 days a week for 1 year or is a
622	direct successor to a newspaper that has been in existence for 1
623	year that has been published a minimum of 5 days a week.;
624	provided, However, this section that nothing herein contained
625	shall not apply where in any county in which there is shall be
626	no newspaper in existence which has shall have been published
627	for the length of time above prescribed in this section. No
628	legal publication of any kind, nature or description, as herein
629	defined, shall be valid or binding or held to be in compliance
630	with the statutes providing for such publication unless the same
631	shall have been published in accordance with the provisions of
632	this section. Proof of such publication shall be made by uniform
633	affidavit.
634	Section 7.  Section 501.2078, Florida Statutes, is created
635	to read:
636	501.2078  Violations involving individual homeowners during
637	the course of residential foreclosure proceedings; civil
638	penalties.--
639	(1)  As used in this section:
640	(a)  "Homeowner" means any individual who is the owner of
641	the property subject to a residential foreclosure proceeding.
642	(b)  "Residential foreclosure proceeding" means any action
643	in a court of this state in which a party seeks to foreclose on
644	a mortgage encumbering the mortgagor's primary dwelling.
645	(c)  "Victimize" means any course of action intended to
646	dupe, swindle, or cheat a homeowner subject to a residential
647	foreclosure proceeding. The factors that a court shall review
648	when determining whether a course of action is victimizing a
649	homeowner are:
650	1.  The compensation received relative to the risk and the
651	amount of work involved.
652	2.  The number of homeowners involved.
653	3.  The relative bargaining position of the parties.
654	4.  The relative knowledge and sophistication of the
655	parties.
656	5.  Representations made in the inducement.
657	6.  The timing of the agreement.
658	(2)  Any person, other than a financial institution as
659	defined in s. 655.005, who willfully uses, or has willfully
660	used, a method, act, or practice in violation of this part,
661	which method, act, or practice victimizes or attempts to
662	victimize homeowners during the course of a residential
663	foreclosure proceeding, and in committing such violation knew or
664	should have known that such conduct was unfair or deceptive, is
665	liable for a civil penalty of not more than $15,000 for each
666	such violation.
667	(3)  Any order of restitution or reimbursement based on a
668	violation of this part committed against a homeowner in a
669	residential foreclosure proceeding has priority over the
670	imposition of any civil penalty for such violation pursuant to
671	this section.
672	(4)  Civil penalties collected pursuant to this section
673	shall be deposited into the Legal Affairs Revolving Trust Fund
674	of the Department of Legal Affairs and allocated solely to the
675	Department of Legal Affairs for the purpose of preparing and
676	distributing consumer education materials, programs, and
677	seminars to benefit homeowners in residential foreclosure
678	proceedings or to further enforcement efforts.
679	(5)  This section does not apply to:
680	(a)  The act of encumbering the dwelling subject to a
681	residential foreclosure proceeding with a substitute or
682	additional lien.
683	(b)  A deed in lieu of foreclosure, a workout agreement, a
684	bankruptcy plan, or any other agreement between a foreclosing
685	lender and a homeowner.
686	(c)  A foreclosure sale, eminent domain proceeding,
687	forfeiture, or any other legal process.
688	Section 8.  Section 702.035, Florida Statutes, is amended
689	to read:
690	702.035  Legal notice concerning foreclosure
691	proceedings.--Whenever a legal advertisement, publication, or
692	notice relating to a foreclosure proceeding is required to be
693	placed in a newspaper, it is the responsibility of the
694	petitioner or petitioner's attorney to place such advertisement,
695	publication, or notice. The advertisement, publication, or
696	notice shall be placed directly by the attorney for the
697	petitioner, by the petitioner if acting pro se, or by the clerk
698	of the court. Only the actual costs charged by the newspaper for
699	the advertisement, publication, or notice may be charged as
700	costs in the action.
701	Section 9.  Subsection (9) of section 201.02, Florida
702	Statutes, is amended to read:
703	201.02  Tax on deeds and other instruments relating to real
704	property or interests in real property.--
705	(9)  A certificate of title issued by the clerk of court
706	under s. 45.031(5)(4) in a judicial sale of real property under
707	an order or final judgment issued pursuant to a foreclosure
708	proceeding is subject to the tax imposed by subsection (1).
709	However, the amount of the tax shall be computed based solely on
710	the amount of the highest and best bid received for the property
711	at the foreclosure sale. This subsection is intended to clarify
712	existing law and shall be applied retroactively.
713	Section 10.  This act shall take effect July 1, 2006.

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