ENROLLED
2016 Legislature CS for SB 1042
20161042er
1
2 An act relating to judgments; creating s. 56.0101,
3 F.S.; providing definitions for purposes of ch. 56,
4 F.S.; amending s. 56.011, F.S.; revising terminology;
5 amending s. 56.021, F.S.; providing that an execution
6 is valid and effective during the life of the order on
7 which it is issued; amending ss. 56.041, 56.071,
8 56.09, 56.10, 56.12, and 56.15, F.S.; revising
9 terminology; amending s. 56.16, F.S.; specifying that
10 persons to whom a Notice to Appear has been issued may
11 obtain possession of property levied on by complying
12 with certain procedures; revising terminology;
13 amending s. 56.18, F.S.; specifying that a jury, if
14 not waived, should be empaneled as soon as possible
15 after service of a Notice to Appear; revising
16 terminology; amending ss. 56.19, 56.20, 56.22, 56.26,
17 56.27, and 56.28, F.S.; revising terminology; amending
18 s. 56.29, F.S.; revising terminology; providing for
19 the issuance of a Notice to Appear; providing
20 requirements for such a notice; providing for service;
21 providing for requirements for a responding affidavit;
22 deleting provisions relating to examinations
23 concerning property; providing for fraudulent transfer
24 claims; creating s. 56.30, F.S.; providing for
25 discovery in proceedings supplementary; providing an
26 effective date.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Section 56.0101, Florida Statutes, is created to
31 read:
32 56.0101 Definitions.—As used in this chapter, the term:
33 (1) “Claimant” means any person other than the judgment
34 debtor who claims any property levied on.
35 (2) “Corporate judgment debtor” means a judgment debtor
36 other than an individual, an estate, or a trust that is not a
37 business trust.
38 (3) “Judgment creditor” means the holder of an unsatisfied
39 judgment, order, or decree for the payment of money, including a
40 transferee or a surety having the right to control and collect
41 the judgment under s. 55.13.
42 (4) “Judgment debtor” means each person who is liable on a
43 judgment, an order, or a decree subject to execution under this
44 chapter.
45 (5) “Levying creditor” means the levying judgment creditor.
46 (6) “Person” means an individual, partnership, corporation,
47 association, organization, government or governmental
48 subdivision or agency, business trust, estate, trust, or any
49 other legal or commercial entity.
50 (7) “Relative” means an individual related by consanguinity
51 within the third degree as determined by the common law, a
52 spouse, or an individual related to a spouse within the third
53 degree as determined by the common law, and includes an
54 individual in an adoptive relationship within the third degree.
55 Section 2. Section 56.011, Florida Statutes, is amended to
56 read:
57 56.011 Executions; capias ad satisfaciendum abolished.—In
58 no case shall A capias ad satisfaciendum may not be issued upon
59 a judgment, nor may shall the body of any person defendant be
60 subject to arrest or confinement for the payment of money,
61 except it be for fines imposed by lawful authority.
62 Section 3. Section 56.021, Florida Statutes, is amended to
63 read:
64 56.021 Executions; issuance and return, alias, etc.—When
65 issued, an execution is valid and effective during the life of
66 the judgment, order, or decree on which it is issued. When fully
67 paid, the officer executing it shall make his or her return and
68 file it in the court which issued the execution. If the
69 execution is lost or destroyed, the party entitled thereto may
70 have an alias, pluries or other copies on making proof of such
71 loss or destruction by affidavit and filing it in the court
72 issuing the execution.
73 Section 4. Subsection (1) of section 56.041, Florida
74 Statutes, is amended to read:
75 56.041 Executions; collection and return.—
76 (1) All executions shall be returnable when satisfied, and
77 the officers to whom they are delivered shall collect the
78 amounts thereof as soon as possible and shall furnish the
79 judgment debtor defendant with a satisfaction of judgment. All
80 receipts shall be endorsed on the execution.
81 Section 5. Section 56.071, Florida Statutes, is amended to
82 read:
83 56.071 Executions on equities of redemption; discovery of
84 value.—On motion made by the person party causing a levy to be
85 made on an equity of redemption, the court from which the
86 execution issued shall order the mortgagor, mortgagee, and all
87 other persons interested in the mortgaged property levied on to
88 appear and be examined about the amount remaining due on the
89 mortgage, the amount that has been paid, the person party to
90 whom that amount has been paid, and the date when that amount
91 was paid so that the value of the equity of redemption may be
92 ascertained before the property is sold. The court may appoint a
93 general or special magistrate to conduct the examination. This
94 section shall also apply to the interest of and personal
95 property in possession of a vendee under a retained title
96 contract or conditional sales contract.
97 Section 6. Section 56.09, Florida Statutes, is amended to
98 read:
99 56.09 Executions against corporate judgment debtors
100 corporations; generally.—On any judgment against a corporate
101 judgment debtor, the judgment creditor corporation plaintiff may
102 have an execution levied on the current money as well as on the
103 goods and chattels, lands and tenements of the corporate
104 judgment debtor said corporation.
105 Section 7. Section 56.10, Florida Statutes, is amended to
106 read:
107 56.10 Executions against corporate judgment debtors
108 corporations; receivership.—If an execution cannot be satisfied
109 in whole or in part for lack of property of the corporate
110 judgment debtor defendant corporation subject to levy and sale,
111 on motion of the judgment creditor the circuit court in chancery
112 within whose circuit such corporate judgment debtor corporation
113 is or has been doing business, or in which any of its effects
114 are found, may sequestrate the property, things in action, goods
115 and chattels of the corporate judgment debtor corporation for
116 the purpose of enforcing the judgment, and may appoint a
117 receiver for the corporate judgment debtor corporation. A
118 receiver so appointed is subject to the rules prescribed by law
119 for receivers of the property of other judgment debtors. His or
120 her power shall extend throughout the state.
121 Section 8. Section 56.12, Florida Statutes, is amended to
122 read:
123 56.12 Executions; levy, forthcoming bond.—If a judgment
124 debtor defendant in execution wants to retake possession of any
125 property levied on, the judgment debtor he or she may do so by
126 executing a bond with surety to be approved by the officer in
127 favor of the judgment creditor plaintiff in a sum double the
128 value of the property retaken as fixed by the officer holding
129 the execution and conditioned that the property will be
130 forthcoming on the day of sale stated in the bond.
131 Section 9. Section 56.15, Florida Statutes, is amended to
132 read:
133 56.15 Executions; stay of illegal writs.—If any execution
134 issues illegally, the judgment debtor defendant in execution may
135 obtain a stay by making and delivering an affidavit to the
136 officer having the execution, stating the illegality and whether
137 any part of the execution is due, with a bond with surety
138 payable to the judgment creditor plaintiff in double the amount
139 of the execution or the part of which a stay is sought
140 conditioned to pay the execution or part claimed to be illegal
141 and any damages for delay if the affidavit is not well founded.
142 On receipt of such affidavit and bond the officer shall stay
143 proceedings on the execution and return the bond and affidavit
144 to the court from which the execution issued. The court shall
145 pass on the question of illegality as soon as possible. If the
146 execution is adjudged illegal in any part, the court shall stay
147 it as to the part but if it is adjudged legal in whole or in
148 part, the court shall enter judgment against the principal and
149 surety on such bond for the amount of so much of the execution
150 as is adjudged to be legal and execution shall issue thereon.
151 Section 10. Section 56.16, Florida Statutes, is amended to
152 read:
153 56.16 Executions; claims of third parties to property
154 levied on.—If any person, including a person to whom a Notice to
155 Appear has been issued pursuant to s. 56.29(2), other than the
156 judgment debtor defendant in execution claims any property
157 levied on, he or she may obtain possession of the property by
158 filing with the officer having the execution an affidavit by the
159 claimant, or the claimant’s himself or herself, his or her agent
160 or attorney, that the property claimed belongs to the claimant
161 him or her and by furnishing the officer a bond with surety to
162 be approved by the officer in favor of the judgment creditor
163 plaintiff in double the value of the goods claimed as the value
164 is fixed by the officer and conditioned to deliver said property
165 on demand of said officer if it is adjudged to be the property
166 of the judgment debtor defendant in execution and to pay the
167 judgment creditor plaintiff all damages found against the
168 claimant him or her if it appears that the claim was interposed
169 for the purpose of delay.
170 Section 11. Section 56.18, Florida Statutes, is amended to
171 read:
172 56.18 Executions; trial of claims of third persons.—As soon
173 as possible after the return, or after service of a Notice to
174 Appear pursuant to s. 56.29(2), a jury, if not waived, shall be
175 impaneled to try the right of property. If the verdict is in
176 favor of the judgment creditor plaintiff and it appears that the
177 claim brought pursuant to s. 56.16 was interposed for delay, the
178 judgment creditor plaintiff may be awarded reasonable damages,
179 not exceeding 20 percent of the value of the property claimed.
180 If the claimant denies in writing under oath filed at least 3
181 days before the trial, the correctness of the appraisement of
182 the value of the property by the officer levying the execution,
183 and the verdict is in favor of the judgment creditor plaintiff,
184 the jury if not waived, shall fix the value of each item
185 thereof, or of the items covered by such denial.
186 Section 12. Section 56.19, Florida Statutes, is amended to
187 read:
188 56.19 Judgments upon claims of third persons.—Upon the
189 verdict of the jury, the court shall enter judgment deciding the
190 right of property, and if the verdict is for the judgment
191 creditor plaintiff, awarding a recovery by the judgment creditor
192 plaintiff from the claimant defendant and the claimant’s his or
193 her sureties, of the value (as fixed by the officer, or as fixed
194 by the jury if fixed by it) of such parts of the property as the
195 jury may have found subject to execution that were delivered to
196 the claimant, and awarding separately such damages as the jury
197 may be have awarded under s. 56.18, and of all costs attending
198 the presentation and trial of the claim.
199 Section 13. Section 56.20, Florida Statutes, is amended to
200 read:
201 56.20 Executions on judgments against third person
202 claimants.—If the execution issued on the judgment is not paid,
203 it shall be satisfied in the usual manner unless on demand of
204 the officer holding it, the principal and surety in the claim
205 bond deliver the property released under the claim bond to the
206 officer and pay him or her the damages and costs awarded to the
207 judgment creditor plaintiff. If the property is returned to the
208 officer but damages and costs are not paid, execution shall be
209 enforced for the damages and costs. If part of the property is
210 returned to the officer, the execution shall be enforced for the
211 value, fixed as aforesaid, of that not returned. All property
212 returned shall be sold under the original execution against the
213 judgment debtor original defendant.
214 Section 14. Section 56.22, Florida Statutes, is amended to
215 read:
216 56.22 Execution sales; time, date, and place of sale.—
217 (1) All sales of property under legal process shall take
218 place at the time, date, and place advertised in the notice of
219 the sheriff’s sale on any day of the week except Saturday and
220 Sunday and shall continue from day to day until such property is
221 disposed of.
222 (2) Property not effectively disposed of at the initial
223 sheriff’s sale may be readvertised, as provided in s. 56.21,
224 upon receipt of an additional deposit to cover costs incurred in
225 connection with the maintenance of the property under legal
226 process. If In the event no additional deposit is received by
227 the sheriff, the property may be returned to the judgment debtor
228 defendant; if the judgment debtor defendant refuses to accept
229 such property, the property may be returned to a third party,
230 such as a lienholder, upon presentation of a proper court order
231 directing such return. If the property cannot be returned as
232 described in this subsection none of the above can be
233 accomplished, such property shall be disposed of as unclaimed or
234 abandoned.
235 Section 15. Section 56.26, Florida Statutes, is amended to
236 read:
237 56.26 Executions; mandamus to force levy and sale.—When an
238 officer holds an unsatisfied execution and refuses to levy on
239 property liable thereunder and on which it is his or her duty to
240 levy or having levied, refuses to advertise and sell the
241 property levied on, the judgment creditor plaintiff in execution
242 is entitled to an alternative writ of mandamus requiring the
243 officer to levy such execution or advertise and sell the
244 property levied on, or both, as the case may be.
245 Section 16. Subsection (1) and paragraph (a) of subsection
246 (4) of section 56.27, Florida Statutes, are amended to read:
247 56.27 Executions; payment of money collected.—
248 (1) All money received under executions shall be paid, in
249 the order prescribed, to the following: the sheriff, for costs;
250 the levying creditor in the amount of $500 as liquidated
251 expenses; and the priority lienholder under s. 55.10(1) and (2),
252 s. 55.202, s. 55.204(3), or s. 55.208(2), as set forth in an
253 affidavit required by subsection (4), or the levying creditor’s
254 his or her attorney, in satisfaction of the judgment lien, if
255 the judgment lien has not lapsed at the time of the levy. The
256 receipt of the attorney shall be a release of the officer paying
257 the money to him or her. If the name of more than one attorney
258 appears in the court file, the money shall be paid to the
259 attorney who originally commenced the action or who made the
260 original defense unless the file shows that another attorney has
261 been substituted.
262 (4) Before the date of the first publication or posting of
263 the notice of sale provided for under s. 56.21, at the time of
264 the levy request to the sheriff, the levying creditor shall
265 deliver to the sheriff an affidavit setting forth all of the
266 following as to the judgment debtor:
267 (a) For a personal property levy, an attestation by the
268 levying creditor or the levying creditor’s attorney of record
269 that he or she has reviewed the database or judgment lien
270 records established in accordance with ss. 55.201-55.209 and
271 that the information contained in the affidavit based on that
272 review is true and correct. For a real property levy in
273 accordance with s. 55.10(1) and (2), an attestation by the
274 levying creditor or the levying creditor’s his or her attorney
275 of record that he or she has reviewed the records of the clerk
276 of the court of the county where the property is situated, or
277 that he or she has performed or reviewed a title search, and
278 that the information contained in the affidavit, including a
279 disclosure of all judgment liens, mortgages, financing
280 statements, tax warrants, and other liens against the real
281 property, based on that review or title search is true and
282 correct.
283 Section 17. Section 56.28, Florida Statutes, is amended to
284 read:
285 56.28 Executions; failure of officer to pay over moneys
286 collected.—If any officer collecting money under execution fails
287 or refuses to pay it over within 30 days after it has been
288 received by him or her, or within 10 days after demand by the
289 levying creditor or the levying creditor’s plaintiff or his or
290 her attorney of record made in writing and delivered during
291 regular business hours to the civil process bureau, the officer
292 is liable to pay the same and 20 percent damages, to be
293 recovered by motion in court.
294 Section 18. Section 56.29, Florida Statutes, is amended to
295 read:
296 56.29 Proceedings supplementary.—
297 (1) When any judgment creditor person or entity holds an
298 unsatisfied judgment or judgment lien obtained under chapter 55,
299 the judgment creditor holder or judgment lienholder may file a
300 motion and an affidavit so stating, identifying, if applicable,
301 the issuing court, the case number, and the unsatisfied amount
302 of the judgment or judgment lien, including accrued costs and
303 interest, and stating that the execution is valid and
304 outstanding, and thereupon the judgment creditor holder or
305 judgment lienholder is entitled to these proceedings
306 supplementary to execution.
307 (2) The judgment creditor shall, in the motion described in
308 subsection (1) or in a supplemental affidavit, describe any
309 property of the judgment debtor not exempt from execution in the
310 hands of any person or any property, debt, or other obligation
311 due to the judgment debtor which may be applied toward the
312 satisfaction of the judgment. Upon filing of the motion and
313 affidavits that property of the judgment debtor, or any debt, or
314 other obligation due to the judgment debtor in the custody or
315 control of any other person may be applied to satisfy the
316 judgment, then the court shall issue a Notice to Appear. The
317 Notice to Appear shall direct such person to file an affidavit,
318 as provided in s. 56.16, with the court by a date certain, which
319 date shall not be less than 7 business days from the date of
320 service of the Notice to Appear, stating why the property, debt,
321 or other obligation should not be applied to satisfy the
322 judgment. For good cause shown, the court may shorten the time
323 for serving an affidavit. The Notice to Appear must describe
324 with reasonable particularity the property, debt, or other
325 obligation that may be available to satisfy the judgment, must
326 provide such person with the opportunity to present defenses,
327 and must indicate that discovery as provided under the rules of
328 civil procedure is available and that there is a right to a jury
329 trial as provided in s. 56.18. The Notice to Appear must be
330 served as provided for in chapter 48. A responding affidavit
331 must raise any fact or defense opposing application of the
332 property described in the Notice to Appear to satisfy the
333 judgment, including legal defenses, such as lack of personal
334 jurisdiction. Legal defenses need not be filed under oath but
335 must be served contemporaneously with the affidavit On such
336 plaintiff’s motion the court shall require the defendant in
337 execution to appear before it or a general or special magistrate
338 at a time and place specified by the order in the county of the
339 defendant’s residence to be examined concerning his or her
340 property.
341 (3) The order shall be served in a reasonable time before
342 the date of the examination in the manner provided for service
343 of summons or may be served on such defendant or his or her
344 attorney as provided for service of papers in the rules of civil
345 procedure.
346 (4) Testimony shall be under oath, shall be comprehensive
347 and cover all matters and things pertaining to the business and
348 financial interests of defendant which may tend to show what
349 property he or she has and its location. Any testimony tending
350 directly or indirectly to aid in satisfying the execution is
351 admissible. A corporation must attend and answer by an officer
352 who may be specified in the order. Examination of witnesses
353 shall be as at trial and any party may call other witnesses.
354 (5) The court may order any property of the judgment
355 debtor, not exempt from execution, in the hands of any person,
356 or any property, debt, or other obligation due to the judgment
357 debtor, to be applied toward the satisfaction of the judgment
358 debt. The court may entertain claims concerning the judgment
359 debtor’s assets brought under chapter 726 and enter any order or
360 judgment, including a money judgment against any initial or
361 subsequent transferee, in connection therewith, irrespective of
362 whether the transferee has retained the property. Claims under
363 chapter 726 are subject to the provisions of chapter 726 and
364 applicable rules of civil procedure.
365 (3)(6)(a) When, within 1 year before the service of process
366 on the judgment debtor in the original proceeding or action him
367 or her, the judgment debtor defendant has had title to, or paid
368 the purchase price of, any personal property to which the
369 judgment debtor’s defendant’s spouse, any relative, or any
370 person on confidential terms with the judgment debtor defendant
371 claims title and right of possession at the time of examination,
372 the judgment debtor defendant has the burden of proof to
373 establish that such transfer or gift from him or her was not
374 made to delay, hinder, or defraud creditors.
375 (b) When any gift, transfer, assignment or other conveyance
376 of personal property has been made or contrived by the judgment
377 debtor to delay, hinder, or defraud creditors, the court shall
378 order the gift, transfer, assignment or other conveyance to be
379 void and direct the sheriff to take the property to satisfy the
380 execution. This does not authorize seizure of property exempted
381 from levy and sale under execution or property which has passed
382 to a bona fide purchaser for value and without notice. Any
383 person aggrieved by the levy or Notice to Appear may proceed
384 under ss. 56.16-56.20.
385 (4)(7) At any time the court may refer the proceeding to a
386 general or special magistrate who may be directed to report
387 findings of law or fact, or both. The general or special
388 magistrate has all the powers thereof, including the power to
389 issue subpoena, and shall be paid the fees provided by the court
390 law.
391 (5)(8) A party or a witness examined under these provisions
392 is not excused from answering a question on the ground that the
393 answer will tend to show him or her guilty of the commission of
394 a fraud, or prove that he or she has been a party or privy to,
395 or knowing of a conveyance, assignment, transfer, or other
396 disposition of property for any purpose, or that the party or
397 witness or another person claims to have title as against the
398 judgment debtor defendant or to hold property derived from or
399 through the judgment debtor defendant, or to be discharged from
400 the payment of a debt which was due to the judgment debtor
401 defendant or to a person on in his or her behalf of the judgment
402 debtor. An answer cannot be used as evidence against the person
403 so answering in any criminal proceeding.
404 (6)(9) The court may order any property of the judgment
405 debtor, not exempt from execution, or any property, debt, or
406 other obligation due to the judgment debtor, in the hands of or
407 under the control of any person subject to the Notice to Appear,
408 to be levied upon and applied toward the satisfaction of the
409 judgment debt. The court may enter any orders, judgments, or
410 writs required to carry out the purpose of this section,
411 including those orders necessary or proper to subject property
412 or property rights of any judgment debtor to execution, and
413 including entry of money judgments as provided in ss. 56.16
414 56.19 against any person to whom a Notice to Appear has been
415 directed and over whom the court obtained personal jurisdiction
416 impleaded defendant irrespective of whether such person
417 defendant has retained the property, subject to ss. 56.18 and
418 56.19 and applicable principles of equity, and in accordance
419 with chapters 76 and 77 and all applicable rules of civil
420 procedure. Sections 56.16–56.20 apply to any order issued under
421 this subsection.
422 (7)(10) Any person failing to obey any order issued under
423 this section by a judge or general or special magistrate or
424 failing to attend in response to a subpoena served on him or her
425 may be held in contempt.
426 (8)(11) Costs for proceedings supplementary shall be taxed
427 against the judgment debtor defendant as well as all other
428 incidental costs determined to be reasonable and just by the
429 court including, but not limited to, docketing the execution,
430 sheriff’s service fees, and court reporter’s fees. Reasonable
431 attorney attorney’s fees may be taxed against the judgment
432 debtor defendant.
433 (9) The court may entertain claims concerning the judgment
434 debtor’s assets brought under chapter 726 and enter any order or
435 judgment, including a money judgment against any initial or
436 subsequent transferee, in connection therewith, irrespective of
437 whether the transferee has retained the property. Claims under
438 chapter 726 brought under this section shall be initiated by a
439 supplemental complaint and served as provided by the rules of
440 civil procedure, and the claims under the supplemental complaint
441 are subject to chapter 726 and the rules of civil procedure. The
442 clerk of the court shall docket a supplemental proceeding under
443 the same case number assigned to the original complaint filed by
444 the judgment creditor or the case number assigned to a judgment
445 domesticated pursuant to s. 55.01, shall assign a separate
446 supplemental proceeding number, and shall assign such
447 supplemental proceeding to the same division and judge assigned
448 to the main case or domesticated judgment.
449 Section 19. Section 56.30, Florida Statutes, is created to
450 read:
451 56.30 Discovery in proceedings supplementary.—
452 (1) In addition to any other discovery permitted under the
453 rules of civil procedure, on the judgment creditor’s motion the
454 court shall require the judgment debtor to appear before it or a
455 general or special magistrate at a time and place specified by
456 the order in the county of the judgment debtor’s residence or
457 principal place of business to be examined concerning property
458 subject to execution. This examination may occur before issuance
459 of a Notice to Appear.
460 (2) The order shall be served in a reasonable time before
461 the date of the examination in the manner provided for service
462 of summons or may be served on the judgment debtor or the
463 judgment debtor’s attorney of record as provided for service of
464 papers in the rules of civil procedure.
465 (3) Testimony shall be under oath, shall be comprehensive,
466 and cover all matters and things pertaining to the business and
467 financial interests of the judgment debtor which may tend to
468 show what property the judgment debtor has and its location. Any
469 testimony tending directly or indirectly to aid in satisfying
470 the execution is admissible. A corporate judgment debtor must
471 attend and answer by a designee with knowledge or an identified
472 officer or manager who may be specified in the order.
473 Examination of witnesses shall be as at trial and any party may
474 call other witnesses to be examined concerning property that may
475 be subject to execution.
476 Section 20. This act shall take effect July 1, 2016.