HB 65

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

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