Florida Senate - 2018                        COMMITTEE AMENDMENT
       Bill No. SB 918
       
       
       
       
       
       
                                Ì9507828Î950782                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/15/2018           .                                
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       The Committee on Judiciary (Grimsley) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 43.19, Florida Statutes, is repealed.
    6         Section 2. Paragraph (a) of subsection (1), paragraph (f)
    7  of subsection (2), and paragraph (b) of subsection (7) of
    8  section 45.031, Florida Statutes, are amended to read:
    9         45.031 Judicial sales procedure.—In any sale of real or
   10  personal property under an order or judgment, the procedures
   11  provided in this section and ss. 45.0315-45.035 may be followed
   12  as an alternative to any other sale procedure if so ordered by
   13  the court.
   14         (1) FINAL JUDGMENT.—
   15         (a) In the order or final judgment, the court shall direct
   16  the clerk to sell the property at public sale on a specified day
   17  that shall be not less than 20 days or more than 35 days after
   18  the date thereof, on terms and conditions specified in the order
   19  or judgment. A sale may be held more than 35 days after the date
   20  of final judgment or order if the plaintiff or plaintiff’s
   21  attorney consents to such time. The final judgment shall contain
   22  the following statement in conspicuous type:
   23  
   24  IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE
   25  ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE
   26  ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THIS
   27  FINAL JUDGMENT.
   28  
   29  IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO FUNDS
   30  REMAINING AFTER THE SALE, IF ANY, YOU MUST FILE A CLAIM WITH THE
   31  CLERK NO LATER THAN THE DATE THAT THE CLERK REPORTS THE FUNDS AS
   32  UNCLAIMED 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A TIMELY
   33  CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.
   34         (2) PUBLICATION OF SALE.—Notice of sale shall be published
   35  once a week for 2 consecutive weeks in a newspaper of general
   36  circulation, as defined in chapter 50, published in the county
   37  where the sale is to be held. The second publication shall be at
   38  least 5 days before the sale. The notice shall contain:
   39         (f) A statement that any person claiming an interest in the
   40  surplus from the sale, if any, other than the property owner as
   41  of the date of the lis pendens must file a claim before the
   42  clerk reports the surplus as unclaimed within 60 days after the
   43  sale.
   44  
   45  The court, in its discretion, may enlarge the time of the sale.
   46  Notice of the changed time of sale shall be published as
   47  provided herein.
   48         (7) DISBURSEMENTS OF PROCEEDS.—
   49         (b) The certificate of disbursements shall be in
   50  substantially the following form:
   51  
   52  (Caption of Action)
   53  
   54                    CERTIFICATE OF DISBURSEMENTS                   
   55  
   56         The undersigned clerk of the court certifies that he or she
   57  disbursed the proceeds received from the sale of the property as
   58  provided in the order or final judgment to the persons and in
   59  the amounts as follows:
   60  Name                                                      Amount
   61  
   62                     Total disbursements: $....                    
   63              Surplus retained by clerk, if any: $....             
   64  
   65  IF YOU ARE A PERSON CLAIMING A RIGHT TO FUNDS REMAINING AFTER
   66  THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN THE
   67  DATE THAT THE CLERK REPORTS THE FUNDS AS UNCLAIMED 60 DAYS AFTER
   68  THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED
   69  TO ANY REMAINING FUNDS. AFTER THE FUNDS ARE REPORTED AS
   70  UNCLAIMED 60 DAYS, ONLY THE OWNER OF RECORD AS OF THE DATE OF
   71  THE LIS PENDENS MAY CLAIM THE SURPLUS.
   72  
   73  WITNESS my hand and the seal of the court on ...., ...(year)....
   74  ...(Clerk)...
   75  By ...(Deputy Clerk)...
   76  
   77         Section 3. Paragraph (d) of subsection (1) and subsections
   78  (3) and (4) of section 45.032, Florida Statutes, are amended, to
   79  read:
   80         45.032 Disbursement of surplus funds after judicial sale.—
   81         (1) For purposes of ss. 45.031-45.035, the term:
   82         (d)“Surplus trustee” means a person qualifying as a
   83  surplus trustee pursuant to s. 45.034.
   84         (3) During the period that 60 days after the clerk holds
   85  issues a certificate of disbursements, the clerk shall hold the
   86  surplus pending a court order:.
   87         (a) If the owner of record claims the surplus before the
   88  date that the clerk reports it as unclaimed during the 60-day
   89  period and there is no subordinate lienholder, the court shall
   90  order the clerk to deduct any applicable service charges from
   91  the surplus and pay the remainder to the owner of record. The
   92  clerk may establish a reasonable requirement that the owner of
   93  record prove his or her identity before receiving the
   94  disbursement. The clerk may assist an owner of record in making
   95  a claim. An owner of record may use the following form in making
   96  a claim:
   97  
   98  (Caption of Action)
   99  
  100                          OWNER’S CLAIM FOR                        
  101                    MORTGAGE FORECLOSURE SURPLUS                   
  102  
  103  State of ....
  104  County of ....
  105         Under penalty of perjury, I (we) hereby certify that:
  106         1. I was (we were) the owner of the following described
  107  real property in .... County, Florida, prior to the foreclosure
  108  sale and as of the date of the filing of the lis pendens:
  109  
  110  ...(Legal description of real property)...
  111  
  112         2. I (we) do not owe any money on any mortgage on the
  113  property that was foreclosed other than the one that was paid
  114  off by the foreclosure.
  115         3. I (we) do not owe any money that is the subject of an
  116  unpaid judgment, tax warrant, condominium lien, cooperative
  117  lien, or homeowners’ association.
  118         4. I am (we are) not currently in bankruptcy.
  119         5. I (we) have not sold or assigned my (our) right to the
  120  mortgage surplus.
  121         6. My (our) new address is: .....
  122         7. If there is more than one owner entitled to the surplus,
  123  we have agreed that the surplus should be paid .... jointly, or
  124  to: ...., at the following address: .....
  125         8. I (WE) UNDERSTAND THAT I (WE) AM (ARE) NOT REQUIRED TO
  126  HAVE A LAWYER OR ANY OTHER REPRESENTATION AND I (WE) DO NOT HAVE
  127  TO ASSIGN MY (OUR) RIGHTS TO ANYONE ELSE IN ORDER TO CLAIM ANY
  128  MONEY TO WHICH I (WE) MAY BE ENTITLED.
  129         9. I (WE) UNDERSTAND THAT THIS STATEMENT IS GIVEN UNDER
  130  OATH, AND IF ANY STATEMENTS ARE UNTRUE THAT I (WE) MAY BE
  131  PROSECUTED CRIMINALLY FOR PERJURY.
  132  
  133  ...(Signatures)...
  134  
  135         Sworn to (or affirmed) and subscribed before me this ....
  136  day of ...., ...(year)..., by ...(name of person making
  137  statement)....
  138         ...(Signature of Notary Public - State of Florida)...
  139         ...(Print, Type, or Stamp Commissioned Name of Notary
  140  Public)...
  141  
  142         Personally Known .... OR Produced Identification ....
  143         Type of Identification Produced..........................
  144  
  145         (b) If any person other than the owner of record claims an
  146  interest in the proceeds prior to the date that the clerk
  147  reports the surplus as unclaimed during the 60-day period or if
  148  the owner of record files a claim for the surplus but
  149  acknowledges that one or more other persons may be entitled to
  150  part or all of the surplus, the court shall set an evidentiary
  151  hearing to determine entitlement to the surplus. At the
  152  evidentiary hearing, an equity assignee has the burden of
  153  proving that he or she is entitled to some or all of the surplus
  154  funds. The court may grant summary judgment to a subordinate
  155  lienholder prior to or at the evidentiary hearing. The court
  156  shall consider the factors in s. 45.033 when hearing a claim
  157  that any person other than a subordinate lienholder or the owner
  158  of record is entitled to the surplus funds.
  159         (c) One year after the sale, any surplus remaining with the
  160  clerk of the court which has not been disbursed as provided in
  161  this section is presumed unclaimed as set forth in s. 717.113
  162  and must be reported and remitted to the department in
  163  accordance with ss. 717.117 and 717.119, unless there is a
  164  pending court proceeding regarding entitlement to the surplus.
  165  At the conclusion of any court proceeding and any appeal
  166  regarding entitlement to the surplus, the clerk of the court
  167  shall, if directed by the court order, report and remit the
  168  unclaimed property to the department or to another entity, as
  169  applicable, or, if not directed by the court order, to the owner
  170  of record. For purposes of establishing entitlement to the
  171  surplus after the property has been remitted to the department,
  172  only the owner of record reported by the clerk of the court or
  173  the beneficiary of a deceased owner of record reported by the
  174  clerk is entitled to the surplus. A surplus of less than $10
  175  escheats to the clerk. For purposes of this paragraph, the term
  176  “beneficiary” has the same meaning as in s. 731.201. If no claim
  177  is filed during the 60-day period, the clerk shall appoint a
  178  surplus trustee from a list of qualified surplus trustees as
  179  authorized in s. 45.034. Upon such appointment, the clerk shall
  180  prepare a notice of appointment of surplus trustee and shall
  181  furnish a copy to the surplus trustee. The form of the notice
  182  may be as follows:
  183  
  184  (Caption of Action)
  185  
  186                        NOTICE OF APPOINTMENT                      
  187                         OF SURPLUS TRUSTEE                        
  188  
  189         The undersigned clerk of the court certifies that he or she
  190  disbursed the proceeds received from the sale of the property as
  191  provided in the order or final judgment to the persons named in
  192  the certificate of disbursements, and that surplus funds of
  193  $.... remain and are subject to disbursement to the owner of
  194  record. You have been appointed as surplus trustee for the
  195  purpose of finding the owner of record in order for the clerk to
  196  disburse the surplus, after deducting costs, to the owner of
  197  record.
  198  WITNESS my hand and the seal of the court on ...., ...(year)....
  199  ...(Clerk)...
  200  By ...(Deputy Clerk)...
  201  
  202         (4)If the surplus trustee is unable to locate the owner of
  203  record entitled to the surplus within 1 year after appointment,
  204  the appointment shall terminate and the clerk shall notify the
  205  surplus trustee that his or her appointment was terminated.
  206  Thirty days after termination of the appointment of the surplus
  207  trustee, the clerk shall treat the remaining funds as unclaimed
  208  property to be deposited with the Chief Financial Officer
  209  pursuant to chapter 717.
  210         Section 4. Paragraph (d) of subsection (3) of section
  211  45.033, Florida Statutes, is amended to read:
  212         45.033 Sale or assignment of rights to surplus funds in a
  213  property subject to foreclosure.—
  214         (3) A voluntary transfer or assignment shall be a transfer
  215  or assignment qualified under this subsection, thereby entitling
  216  the transferee or assignee to the surplus funds or a portion or
  217  percentage of the surplus funds, if:
  218         (d)The transferor or assignee is qualified as a surplus
  219  trustee, or could qualify as a surplus trustee, pursuant to s.
  220  45.034.
  221         Section 5. Section 45.034, Florida Statutes, is repealed.
  222         Section 6. Paragraphs (b) and (d) of subsection (2) of
  223  section 45.035, Florida Statutes, are amended to read:
  224         45.035 Clerk’s fees.—In addition to other fees or service
  225  charges authorized by law, the clerk shall receive service
  226  charges related to the judicial sales procedure set forth in ss.
  227  45.031-45.034 and this section:
  228         (2) If there is a surplus resulting from the sale, the
  229  clerk may receive the following service charges, which shall be
  230  deducted from the surplus:
  231         (b)The clerk is entitled to a service charge of $15 for
  232  notifying a surplus trustee of his or her appointment.
  233         (d)The clerk is entitled to a service charge of $15 for
  234  appointing a surplus trustee, furnishing the surplus trustee
  235  with a copy of the final judgment and the certificate of
  236  disbursements, and disbursing to the surplus trustee the
  237  trustee’s cost advance.
  238         Section 7. Paragraph (h) of subsection (6) of section
  239  318.1451, Florida Statutes, is amended to read:
  240         318.1451 Driver improvement schools.—
  241         (6) The department shall adopt rules establishing and
  242  maintaining policies and procedures to implement the
  243  requirements of this section. These policies and procedures may
  244  include, but shall not be limited to, the following:
  245         (h) Miscellaneous requirements.—The department shall
  246  require that all course providers:
  247         1. Disclose all fees associated with courses offered by the
  248  provider and associated driver improvement schools and not
  249  charge any fees that are not disclosed during registration.
  250         2. Provide proof of ownership, copyright, or written
  251  permission from the course owner to use the course in this
  252  state.
  253         3. Ensure that any course that is offered in a classroom
  254  setting, by the provider or a school authorized by the provider
  255  to teach the course, is offered at locations that are free from
  256  distractions and reasonably accessible to most applicants.
  257         4. Issue a certificate to persons who successfully complete
  258  the course.
  259         5. Within 7 business days after a person successfully
  260  completes the course, transmit the individual completion
  261  certificate together with the citation number through the
  262  Florida Courts E-Filing Portal governed by the Florida Courts E
  263  Filing Authority to the clerk of the circuit court of the county
  264  where the citation is issued.
  265         Section 8. Section 717.113, Florida Statutes, is amended to
  266  read:
  267         717.113 Property held by courts and public agencies.—All
  268  intangible property held for the owner by any court, government
  269  or governmental subdivision or agency, public corporation, or
  270  public authority that has not been claimed by the owner for more
  271  than 1 year after it became payable or distributable is presumed
  272  unclaimed. Except as provided in s. 45.032(3)(c), money held in
  273  the court registry for which a court order has not been issued
  274  to determine an owner does not become payable or distributable
  275  and is not subject to reporting under this chapter.
  276  Notwithstanding the provisions of this section, funds deposited
  277  in the Minerals Trust Fund pursuant to s. 377.247 are presumed
  278  unclaimed only if the funds have not been claimed by the owner
  279  for more than 5 years after the date of first production from
  280  the well.
  281         Section 9. Subsection (8) of section 717.124, Florida
  282  Statutes, is amended to read:
  283         717.124 Unclaimed property claims.—
  284         (8) This section applies to all unclaimed property reported
  285  and remitted to the Chief Financial Officer, including, but not
  286  limited to, property reported pursuant to ss. 45.032, 732.107,
  287  733.816, and 744.534 ss. 43.19, 45.032, 732.107, 733.816, and
  288  744.534.
  289         Section 10. Section 717.138, Florida Statutes, is amended
  290  to read:
  291         717.138 Rulemaking authority.—The department shall
  292  administer and provide for the enforcement of this chapter. The
  293  department has authority to adopt rules pursuant to ss.
  294  120.536(1) and 120.54 to implement the provisions of this
  295  chapter. The department may adopt rules to allow for electronic
  296  filing of fees, forms, and reports required by this chapter. The
  297  authority to adopt rules pursuant to this chapter applies to all
  298  unclaimed property reported and remitted to the Chief Financial
  299  Officer, including, but not limited to, property reported and
  300  remitted pursuant to ss. 45.032, 732.107, 733.816, and 744.534
  301  ss. 43.19, 45.032, 732.107, 733.816, and 744.534.
  302         Section 11. Section 717.1401, Florida Statutes, is amended
  303  to read:
  304         717.1401 Repeal.—This chapter shall not repeal, but shall
  305  be additional and supplemental to the existing provisions of ss.
  306  43.18 and 402.17 ss. 43.18, 43.19, and 402.17 and chapter 716.
  307         Section 12. This act shall take effect July 1, 2019.
  308  
  309  ================= T I T L E  A M E N D M E N T ================
  310  And the title is amended as follows:
  311         Delete everything before the enacting clause
  312  and insert:
  313                        A bill to be entitled                      
  314         An act relating to clerks of the court; repealing s.
  315         43.19, F.S., relating to the disposition of certain
  316         money paid into a court which is unclaimed; amending
  317         s. 45.031, F.S.; revising the time periods within
  318         which certain persons must file claims for certain
  319         unclaimed surplus funds; amending s. 45.032, F.S.;
  320         deleting provisions defining and specifying the powers
  321         of a “surplus trustee”; specifying procedures for the
  322         clerk to use in handling surpluses that remain
  323         unclaimed; specifying the entities eligible for the
  324         surplus once the funds have been remitted to the
  325         Department of Financial Services; conforming
  326         provisions to changes made by the act; amending s.
  327         45.033, F.S.; conforming a provision to changes made
  328         by the act; repealing s. 45.034, F.S., relating to
  329         qualifications and appointment of a surplus trustee in
  330         foreclosure actions; amending s. 45.035, F.S.;
  331         revising service charges that a clerk may receive and
  332         deduct from surplus amounts; amending s. 318.1451,
  333         F.S.; requiring all driver improvement course
  334         providers to transmit, within a specified timeframe,
  335         the individual completion certificate and citation
  336         number through the Florida Courts E-Filing Portal
  337         governed by the Florida Courts E-Filing Authority to
  338         the clerk of the circuit court in the county where the
  339         citation was issued; amending s. 717.113, F.S.;
  340         providing that certain funds remaining after a
  341         judicial sale and held in a court registry are not
  342         payable or distributable and are not subject to
  343         certain reporting requirements; amending ss. 717.124,
  344         717.138, and 717.1401, F.S.; conforming cross
  345         references; providing an effective date.