Florida Senate - 2018 CS for SB 918
By the Committee on Judiciary; and Senator Grimsley
590-03186-18 2018918c1
1 A bill to be entitled
2 An act relating to clerks of the court; repealing s.
3 43.19, F.S., relating to the disposition of certain
4 money paid into a court which is unclaimed; amending
5 s. 45.031, F.S.; revising the time periods within
6 which certain persons must file claims for certain
7 unclaimed surplus funds; amending s. 45.032, F.S.;
8 deleting provisions defining and specifying the powers
9 of a “surplus trustee”; specifying procedures for the
10 clerk to use in handling surpluses that remain
11 unclaimed; specifying the entities eligible for the
12 surplus once the funds have been remitted to the
13 Department of Financial Services; conforming
14 provisions to changes made by the act; amending s.
15 45.033, F.S.; conforming a provision to changes made
16 by the act; repealing s. 45.034, F.S., relating to
17 qualifications and appointment of a surplus trustee in
18 foreclosure actions; amending s. 45.035, F.S.;
19 revising service charges that a clerk may receive and
20 deduct from surplus amounts; amending s. 318.1451,
21 F.S.; requiring all driver improvement course
22 providers to transmit, within a specified timeframe,
23 the individual completion certificate and citation
24 number through the Florida Courts E-Filing Portal
25 governed by the Florida Courts E-Filing Authority to
26 the clerk of the circuit court in the county where the
27 citation was issued; amending s. 717.113, F.S.;
28 providing that certain funds remaining after a
29 judicial sale and held in a court registry are not
30 payable or distributable and are not subject to
31 certain reporting requirements; amending ss. 717.124,
32 717.138, and 717.1401, F.S.; conforming cross
33 references; providing an effective date.
34
35 Be It Enacted by the Legislature of the State of Florida:
36
37 Section 1. Section 43.19, Florida Statutes, is repealed.
38 Section 2. Paragraph (a) of subsection (1), paragraph (f)
39 of subsection (2), and paragraph (b) of subsection (7) of
40 section 45.031, Florida Statutes, are amended to read:
41 45.031 Judicial sales procedure.—In any sale of real or
42 personal property under an order or judgment, the procedures
43 provided in this section and ss. 45.0315-45.035 may be followed
44 as an alternative to any other sale procedure if so ordered by
45 the court.
46 (1) FINAL JUDGMENT.—
47 (a) In the order or final judgment, the court shall direct
48 the clerk to sell the property at public sale on a specified day
49 that shall be not less than 20 days or more than 35 days after
50 the date thereof, on terms and conditions specified in the order
51 or judgment. A sale may be held more than 35 days after the date
52 of final judgment or order if the plaintiff or plaintiff’s
53 attorney consents to such time. The final judgment shall contain
54 the following statement in conspicuous type:
55
56 IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE
57 ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE
58 ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THIS
59 FINAL JUDGMENT.
60
61 IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO FUNDS
62 REMAINING AFTER THE SALE, IF ANY, YOU MUST FILE A CLAIM WITH THE
63 CLERK NO LATER THAN THE DATE THAT THE CLERK REPORTS THE FUNDS AS
64 UNCLAIMED 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A TIMELY
65 CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.
66 (2) PUBLICATION OF SALE.—Notice of sale shall be published
67 once a week for 2 consecutive weeks in a newspaper of general
68 circulation, as defined in chapter 50, published in the county
69 where the sale is to be held. The second publication shall be at
70 least 5 days before the sale. The notice shall contain:
71 (f) A statement that any person claiming an interest in the
72 surplus from the sale, if any, other than the property owner as
73 of the date of the lis pendens must file a claim before the
74 clerk reports the surplus as unclaimed within 60 days after the
75 sale.
76
77 The court, in its discretion, may enlarge the time of the sale.
78 Notice of the changed time of sale shall be published as
79 provided herein.
80 (7) DISBURSEMENTS OF PROCEEDS.—
81 (b) The certificate of disbursements shall be in
82 substantially the following form:
83
84 (Caption of Action)
85
86 CERTIFICATE OF DISBURSEMENTS
87
88 The undersigned clerk of the court certifies that he or she
89 disbursed the proceeds received from the sale of the property as
90 provided in the order or final judgment to the persons and in
91 the amounts as follows:
92 Name Amount
93
94 Total disbursements: $....
95 Surplus retained by clerk, if any: $....
96
97 IF YOU ARE A PERSON CLAIMING A RIGHT TO FUNDS REMAINING AFTER
98 THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN THE
99 DATE THAT THE CLERK REPORTS THE FUNDS AS UNCLAIMED 60 DAYS AFTER
100 THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED
101 TO ANY REMAINING FUNDS. AFTER THE FUNDS ARE REPORTED AS
102 UNCLAIMED 60 DAYS, ONLY THE OWNER OF RECORD AS OF THE DATE OF
103 THE LIS PENDENS MAY CLAIM THE SURPLUS.
104
105 WITNESS my hand and the seal of the court on ...., ...(year)....
106 ...(Clerk)...
107 By ...(Deputy Clerk)...
108
109 Section 3. Paragraph (d) of subsection (1) and subsections
110 (3) and (4) of section 45.032, Florida Statutes, are amended, to
111 read:
112 45.032 Disbursement of surplus funds after judicial sale.—
113 (1) For purposes of ss. 45.031-45.035, the term:
114 (d) “Surplus trustee” means a person qualifying as a
115 surplus trustee pursuant to s. 45.034.
116 (3) During the period that 60 days after the clerk holds
117 issues a certificate of disbursements, the clerk shall hold the
118 surplus pending a court order:.
119 (a) If the owner of record claims the surplus before the
120 date that the clerk reports it as unclaimed during the 60-day
121 period and there is no subordinate lienholder, the court shall
122 order the clerk to deduct any applicable service charges from
123 the surplus and pay the remainder to the owner of record. The
124 clerk may establish a reasonable requirement that the owner of
125 record prove his or her identity before receiving the
126 disbursement. The clerk may assist an owner of record in making
127 a claim. An owner of record may use the following form in making
128 a claim:
129
130 (Caption of Action)
131
132 OWNER’S CLAIM FOR
133 MORTGAGE FORECLOSURE SURPLUS
134
135 State of ....
136 County of ....
137 Under penalty of perjury, I (we) hereby certify that:
138 1. I was (we were) the owner of the following described
139 real property in .... County, Florida, prior to the foreclosure
140 sale and as of the date of the filing of the lis pendens:
141
142 ...(Legal description of real property)...
143
144 2. I (we) do not owe any money on any mortgage on the
145 property that was foreclosed other than the one that was paid
146 off by the foreclosure.
147 3. I (we) do not owe any money that is the subject of an
148 unpaid judgment, tax warrant, condominium lien, cooperative
149 lien, or homeowners’ association.
150 4. I am (we are) not currently in bankruptcy.
151 5. I (we) have not sold or assigned my (our) right to the
152 mortgage surplus.
153 6. My (our) new address is: .....
154 7. If there is more than one owner entitled to the surplus,
155 we have agreed that the surplus should be paid .... jointly, or
156 to: ...., at the following address: .....
157 8. I (WE) UNDERSTAND THAT I (WE) AM (ARE) NOT REQUIRED TO
158 HAVE A LAWYER OR ANY OTHER REPRESENTATION AND I (WE) DO NOT HAVE
159 TO ASSIGN MY (OUR) RIGHTS TO ANYONE ELSE IN ORDER TO CLAIM ANY
160 MONEY TO WHICH I (WE) MAY BE ENTITLED.
161 9. I (WE) UNDERSTAND THAT THIS STATEMENT IS GIVEN UNDER
162 OATH, AND IF ANY STATEMENTS ARE UNTRUE THAT I (WE) MAY BE
163 PROSECUTED CRIMINALLY FOR PERJURY.
164
165 ...(Signatures)...
166
167 Sworn to (or affirmed) and subscribed before me this ....
168 day of ...., ...(year)..., by ...(name of person making
169 statement)....
170 ...(Signature of Notary Public - State of Florida)...
171 ...(Print, Type, or Stamp Commissioned Name of Notary
172 Public)...
173
174 Personally Known .... OR Produced Identification ....
175 Type of Identification Produced..........................
176
177 (b) If any person other than the owner of record claims an
178 interest in the proceeds prior to the date that the clerk
179 reports the surplus as unclaimed during the 60-day period or if
180 the owner of record files a claim for the surplus but
181 acknowledges that one or more other persons may be entitled to
182 part or all of the surplus, the court shall set an evidentiary
183 hearing to determine entitlement to the surplus. At the
184 evidentiary hearing, an equity assignee has the burden of
185 proving that he or she is entitled to some or all of the surplus
186 funds. The court may grant summary judgment to a subordinate
187 lienholder prior to or at the evidentiary hearing. The court
188 shall consider the factors in s. 45.033 when hearing a claim
189 that any person other than a subordinate lienholder or the owner
190 of record is entitled to the surplus funds.
191 (c) One year after the sale, any surplus remaining with the
192 clerk of the court which has not been disbursed as provided in
193 this section is presumed unclaimed as set forth in s. 717.113
194 and must be reported and remitted to the department in
195 accordance with ss. 717.117 and 717.119, unless there is a
196 pending court proceeding regarding entitlement to the surplus.
197 At the conclusion of any court proceeding and any appeal
198 regarding entitlement to the surplus, the clerk of the court
199 shall, if directed by the court order, report and remit the
200 unclaimed property to the department or to another entity, as
201 applicable, or, if not directed by the court order, to the owner
202 of record. For purposes of establishing entitlement to the
203 surplus after the property has been remitted to the department,
204 only the owner of record reported by the clerk of the court or
205 the beneficiary of a deceased owner of record reported by the
206 clerk is entitled to the surplus. A surplus of less than $10
207 escheats to the clerk. For purposes of this paragraph, the term
208 “beneficiary” has the same meaning as in s. 731.201. If no claim
209 is filed during the 60-day period, the clerk shall appoint a
210 surplus trustee from a list of qualified surplus trustees as
211 authorized in s. 45.034. Upon such appointment, the clerk shall
212 prepare a notice of appointment of surplus trustee and shall
213 furnish a copy to the surplus trustee. The form of the notice
214 may be as follows:
215
216 (Caption of Action)
217
218 NOTICE OF APPOINTMENT
219 OF SURPLUS TRUSTEE
220
221 The undersigned clerk of the court certifies that he or she
222 disbursed the proceeds received from the sale of the property as
223 provided in the order or final judgment to the persons named in
224 the certificate of disbursements, and that surplus funds of
225 $.... remain and are subject to disbursement to the owner of
226 record. You have been appointed as surplus trustee for the
227 purpose of finding the owner of record in order for the clerk to
228 disburse the surplus, after deducting costs, to the owner of
229 record.
230 WITNESS my hand and the seal of the court on ...., ...(year)....
231 ...(Clerk)...
232 By ...(Deputy Clerk)...
233
234 (4) If the surplus trustee is unable to locate the owner of
235 record entitled to the surplus within 1 year after appointment,
236 the appointment shall terminate and the clerk shall notify the
237 surplus trustee that his or her appointment was terminated.
238 Thirty days after termination of the appointment of the surplus
239 trustee, the clerk shall treat the remaining funds as unclaimed
240 property to be deposited with the Chief Financial Officer
241 pursuant to chapter 717.
242 Section 4. Paragraph (d) of subsection (3) of section
243 45.033, Florida Statutes, is amended to read:
244 45.033 Sale or assignment of rights to surplus funds in a
245 property subject to foreclosure.—
246 (3) A voluntary transfer or assignment shall be a transfer
247 or assignment qualified under this subsection, thereby entitling
248 the transferee or assignee to the surplus funds or a portion or
249 percentage of the surplus funds, if:
250 (d) The transferor or assignee is qualified as a surplus
251 trustee, or could qualify as a surplus trustee, pursuant to s.
252 45.034.
253 Section 5. Section 45.034, Florida Statutes, is repealed.
254 Section 6. Paragraphs (b) and (d) of subsection (2) of
255 section 45.035, Florida Statutes, are amended to read:
256 45.035 Clerk’s fees.—In addition to other fees or service
257 charges authorized by law, the clerk shall receive service
258 charges related to the judicial sales procedure set forth in ss.
259 45.031-45.034 and this section:
260 (2) If there is a surplus resulting from the sale, the
261 clerk may receive the following service charges, which shall be
262 deducted from the surplus:
263 (b) The clerk is entitled to a service charge of $15 for
264 notifying a surplus trustee of his or her appointment.
265 (d) The clerk is entitled to a service charge of $15 for
266 appointing a surplus trustee, furnishing the surplus trustee
267 with a copy of the final judgment and the certificate of
268 disbursements, and disbursing to the surplus trustee the
269 trustee’s cost advance.
270 Section 7. Paragraph (h) of subsection (6) of section
271 318.1451, Florida Statutes, is amended to read:
272 318.1451 Driver improvement schools.—
273 (6) The department shall adopt rules establishing and
274 maintaining policies and procedures to implement the
275 requirements of this section. These policies and procedures may
276 include, but shall not be limited to, the following:
277 (h) Miscellaneous requirements.—The department shall
278 require that all course providers:
279 1. Disclose all fees associated with courses offered by the
280 provider and associated driver improvement schools and not
281 charge any fees that are not disclosed during registration.
282 2. Provide proof of ownership, copyright, or written
283 permission from the course owner to use the course in this
284 state.
285 3. Ensure that any course that is offered in a classroom
286 setting, by the provider or a school authorized by the provider
287 to teach the course, is offered at locations that are free from
288 distractions and reasonably accessible to most applicants.
289 4. Issue a certificate to persons who successfully complete
290 the course.
291 5. Within 7 business days after a person successfully
292 completes the course, transmit the individual completion
293 certificate together with the citation number through the
294 Florida Courts E-Filing Portal governed by the Florida Courts E
295 Filing Authority to the clerk of the circuit court of the county
296 where the citation is issued.
297 Section 8. Section 717.113, Florida Statutes, is amended to
298 read:
299 717.113 Property held by courts and public agencies.—All
300 intangible property held for the owner by any court, government
301 or governmental subdivision or agency, public corporation, or
302 public authority that has not been claimed by the owner for more
303 than 1 year after it became payable or distributable is presumed
304 unclaimed. Except as provided in s. 45.032(3)(c), money held in
305 the court registry for which a court order has not been issued
306 to determine an owner does not become payable or distributable
307 and is not subject to reporting under this chapter.
308 Notwithstanding the provisions of this section, funds deposited
309 in the Minerals Trust Fund pursuant to s. 377.247 are presumed
310 unclaimed only if the funds have not been claimed by the owner
311 for more than 5 years after the date of first production from
312 the well.
313 Section 9. Subsection (8) of section 717.124, Florida
314 Statutes, is amended to read:
315 717.124 Unclaimed property claims.—
316 (8) This section applies to all unclaimed property reported
317 and remitted to the Chief Financial Officer, including, but not
318 limited to, property reported pursuant to ss. 45.032, 732.107,
319 733.816, and 744.534 ss. 43.19, 45.032, 732.107, 733.816, and
320 744.534.
321 Section 10. Section 717.138, Florida Statutes, is amended
322 to read:
323 717.138 Rulemaking authority.—The department shall
324 administer and provide for the enforcement of this chapter. The
325 department has authority to adopt rules pursuant to ss.
326 120.536(1) and 120.54 to implement the provisions of this
327 chapter. The department may adopt rules to allow for electronic
328 filing of fees, forms, and reports required by this chapter. The
329 authority to adopt rules pursuant to this chapter applies to all
330 unclaimed property reported and remitted to the Chief Financial
331 Officer, including, but not limited to, property reported and
332 remitted pursuant to ss. 45.032, 732.107, 733.816, and 744.534
333 ss. 43.19, 45.032, 732.107, 733.816, and 744.534.
334 Section 11. Section 717.1401, Florida Statutes, is amended
335 to read:
336 717.1401 Repeal.—This chapter shall not repeal, but shall
337 be additional and supplemental to the existing provisions of ss.
338 43.18 and 402.17 ss. 43.18, 43.19, and 402.17 and chapter 716.
339 Section 12. This act shall take effect July 1, 2019.