Senate Bill sb1460c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2007                           CS for SB 1460

    By the Committee on Banking and Insurance; and Senator Joyner





    597-2344-07

  1                      A bill to be entitled

  2         An act relating to judicial and execution sales

  3         of property; creating s. 45.0321, F.S.;

  4         requiring that, before certain court-ordered

  5         sales of property, the lienholder serve notice

  6         on the property owner of the possibility of

  7         relief through the filing of a bankruptcy

  8         petition; specifying the content of the notice;

  9         providing for an affirmative defense for

10         failing to provide notice; amending s. 56.021,

11         F.S., relating to the required service of

12         notice of potential relief through bankruptcy;

13         conforming provisions to changes made by the

14         act; amending s. 702.035, F.S.; clarifying that

15         the number of days for publishing a notice

16         relating to a foreclosure proceeding excludes

17         legal holidays; providing an effective date.

18  

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

20  

21         Section 1.  Section 45.0321, Florida Statutes, is

22  created to read:

23         45.0321  Notice of bankruptcy alternatives to judicial

24  sale.--

25         (1)  As a condition to the entry of a final judgment

26  under s. 45.031 or s. 702.10, a lienholder must serve,

27  together with the original process and in the manner permitted

28  for service of a complaint, a separate notice to the property

29  owner containing the following statement in conspicuous type:

30  

31                     NOTICE OF PROPERTY SALE

                                  1

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






    Florida Senate - 2007                           CS for SB 1460
    597-2344-07




 1  

 2         A judicial or sheriff's sale of your property

 3         that is subject to the lien of the plaintiff in

 4         this case may occur shortly. UNDER CERTAIN

 5         CIRCUMSTANCES, the United States Bankruptcy

 6         Code may provide a property owner the ability

 7         to retain the liened property and reorganize

 8         the claimed indebtedness if a bankruptcy

 9         petition is filed before the judicial or

10         sheriff's sale occurs. In most cases, an

11         individual will be required to complete a

12         credit counseling briefing before being

13         eligible to file a bankruptcy case.

14  

15         (2)  The fact of service of the notice shall be noted

16  on the summons and the return of service so that the clerk of

17  the court, the judicial officer, and any title examiners may

18  ascertain the lienholder's compliance with this section. The

19  lienholder's failure to deliver notice is an affirmative

20  defense and, if such defense is not raised by the property

21  owner, a final judgement for in rem relief but not a final

22  money judgment may be entered against the property owner.

23         (3)  This section does not affect the title or

24  marketability of the real property subject to the judicial

25  sale nor the validity of the title conveyed which results from

26  the judicial sale.

27         Section 2.  Section 56.021, Florida Statutes, is

28  amended to read:

29         56.021  Executions; issuance and return, alias,

30  etc.--When issued, an execution is valid and effective during

31  the life of the judgment or decree on which it is issued.

                                  2

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






    Florida Senate - 2007                           CS for SB 1460
    597-2344-07




 1  When fully paid, the officer executing it shall make his or

 2  her return and file it in the court which issued the

 3  execution. If the execution is lost or destroyed, the party

 4  entitled thereto may have an alias, pluries or other copies on

 5  making proof of such loss or destruction by affidavit and

 6  filing it in the court issuing the execution. However, the

 7  execution may not be issued before the judgment creditor has

 8  filed and served a notice upon the judgment debtor in the same

 9  form as required by s. 45.0321.

10         Section 3.  Section 702.035, Florida Statutes, is

11  amended to read:

12         702.035  Legal notice concerning foreclosure

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

14  notice relating to a foreclosure proceeding is required to be

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

16  petitioner or petitioner's attorney to place such

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

18  than 1 million total population as reflected in the 2000 most

19  recent Official Decennial Census of the United States Census

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

21  Census Bureau, any notice of publication required by this

22  section shall be deemed to have been published in accordance

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

24  has been entered as a periodical matter at a post office in

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

26  minimum of 5 days a week, exclusive of legal holidays, and has

27  been in existence and published a minimum of 5 days a week,

28  exclusive of legal holidays for 1 year or is a direct

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

30  that has been published a minimum of 5 days a week exclusive

31  of legal holidays. The advertisement, publication, or notice

                                  3

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






    Florida Senate - 2007                           CS for SB 1460
    597-2344-07




 1  shall be placed directly by the attorney for the petitioner,

 2  by the petitioner if acting pro se, or by the clerk of the

 3  court. Only the actual costs charged by the newspaper for the

 4  advertisement, publication, or notice may be charged as costs

 5  in the action.

 6         Section 4.  This act shall take effect July 1, 2007.

 7  

 8          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 9                         Senate Bill 1460

10                                 

11  The committee substitute provides the following changes:

12  1.   Requires the fact of service of the notice of the
         possibility of retaining the property through the filing
13       of a bankruptcy petition to be noted on the summons and
         the return of the service so that the leinholder's
14       compliance with the notice requirement can be verified by
         a court, judicial officer, and title examiners.
15  
    2.   Specifies the remedies available is the leinholder fails
16       to deliver the required notice.

17  3.   Modifies the legal notice required pursuant to a
         foreclosure proceeding in counties that have a population
18       of over 1 million people. Requires the use of the 2000 US
         Decennial Census to determine which counties have a
19       population of over 1 million. States the requirement that
         the notice be published 5 days a week and that the
20       newspaper in which notice is placed be published 5 days a
         week, is exclusive of legal holidays.
21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  4

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