Bill Amendment: FL S1042 | 2016 | Regular Session
NOTE: For additional amemendments please see the Bill Drafting List
Bill Title: Judgments
Status: 2016-03-10 - Chapter No. 2016-33 [S1042 Detail]
Download: Florida-2016-S1042-Senate_Committee_Amendment_753766.html
Bill Title: Judgments
Status: 2016-03-10 - Chapter No. 2016-33 [S1042 Detail]
Download: Florida-2016-S1042-Senate_Committee_Amendment_753766.html
Florida Senate - 2016 COMMITTEE AMENDMENT
Bill No. SB 1042
Ì753766MÎ753766
LEGISLATIVE ACTION
Senate . House
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The Committee on Judiciary (Simmons) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Section 56.0101, Florida Statutes, is created to
6 read:
7 56.0101 Definitions.—As used in this chapter, the term:
8 (1) “Claimant” means any person other than the judgment
9 debtor who claims any property levied on.
10 (2) “Corporate judgment debtor” means a judgment debtor
11 other than an individual, an estate, or a trust that is not a
12 business trust.
13 (3) “Judgment creditor” means the holder of an unsatisfied
14 judgment, order, or decree for the payment of money, including a
15 transferee or a surety having the right to control and collect
16 the judgment under s. 55.13.
17 (4) “Judgment debtor” means each person who is liable on a
18 judgment, an order, or a decree subject to execution under this
19 chapter.
20 (5) “Levying creditor” means the levying judgment creditor.
21 (6) “Person” means an individual, partnership, corporation,
22 association, organization, government or governmental
23 subdivision or agency, business trust, estate, trust, or any
24 other legal or commercial entity.
25 (7) “Relative” means an individual related by consanguinity
26 within the third degree as determined by the common law, a
27 spouse, or an individual related to a spouse within the third
28 degree as determined by the common law, and includes an
29 individual in an adoptive relationship within the third degree.
30 Section 2. Section 56.011, Florida Statutes, is amended to
31 read:
32 56.011 Executions; capias ad satisfaciendum abolished.—In
33 no case shall A capias ad satisfaciendum may not be issued upon
34 a judgment, nor may shall the body of any person defendant be
35 subject to arrest or confinement for the payment of money,
36 except it be for fines imposed by lawful authority.
37 Section 3. Section 56.021, Florida Statutes, is amended to
38 read:
39 56.021 Executions; issuance and return, alias, etc.—When
40 issued, an execution is valid and effective during the life of
41 the judgment, order, or decree on which it is issued. When fully
42 paid, the officer executing it shall make his or her return and
43 file it in the court which issued the execution. If the
44 execution is lost or destroyed, the party entitled thereto may
45 have an alias, pluries or other copies on making proof of such
46 loss or destruction by affidavit and filing it in the court
47 issuing the execution.
48 Section 4. Subsection (1) of section 56.041, Florida
49 Statutes, is amended to read:
50 56.041 Executions; collection and return.—
51 (1) All executions shall be returnable when satisfied, and
52 the officers to whom they are delivered shall collect the
53 amounts thereof as soon as possible and shall furnish the
54 judgment debtor defendant with a satisfaction of judgment. All
55 receipts shall be endorsed on the execution.
56 Section 5. Section 56.071, Florida Statutes, is amended to
57 read:
58 56.071 Executions on equities of redemption; discovery of
59 value.—On motion made by the person party causing a levy to be
60 made on an equity of redemption, the court from which the
61 execution issued shall order the mortgagor, mortgagee, and all
62 other persons interested in the mortgaged property levied on to
63 appear and be examined about the amount remaining due on the
64 mortgage, the amount that has been paid, the person party to
65 whom that amount has been paid, and the date when that amount
66 was paid so that the value of the equity of redemption may be
67 ascertained before the property is sold. The court may appoint a
68 general or special magistrate to conduct the examination. This
69 section shall also apply to the interest of and personal
70 property in possession of a vendee under a retained title
71 contract or conditional sales contract.
72 Section 6. Section 56.09, Florida Statutes, is amended to
73 read:
74 56.09 Executions against corporate judgment debtors
75 corporations; generally.—On any judgment against a corporate
76 judgment debtor, the judgment creditor corporation plaintiff may
77 have an execution levied on the current money as well as on the
78 goods and chattels, lands and tenements of the corporate
79 judgment debtor said corporation.
80 Section 7. Section 56.10, Florida Statutes, is amended to
81 read:
82 56.10 Executions against corporate judgment debtors
83 corporations; receivership.—If an execution cannot be satisfied
84 in whole or in part for lack of property of the corporate
85 judgment debtor defendant corporation subject to levy and sale,
86 on motion of the judgment creditor the circuit court in chancery
87 within whose circuit such corporate judgment debtor corporation
88 is or has been doing business, or in which any of its effects
89 are found, may sequestrate the property, things in action, goods
90 and chattels of the corporate judgment debtor corporation for
91 the purpose of enforcing the judgment, and may appoint a
92 receiver for the corporate judgment debtor corporation. A
93 receiver so appointed is subject to the rules prescribed by law
94 for receivers of the property of other judgment debtors. His or
95 her power shall extend throughout the state.
96 Section 8. Section 56.12, Florida Statutes, is amended to
97 read:
98 56.12 Executions; levy, forthcoming bond.—If a judgment
99 debtor defendant in execution wants to retake possession of any
100 property levied on, the judgment debtor he or she may do so by
101 executing a bond with surety to be approved by the officer in
102 favor of the judgment creditor plaintiff in a sum double the
103 value of the property retaken as fixed by the officer holding
104 the execution and conditioned that the property will be
105 forthcoming on the day of sale stated in the bond.
106 Section 9. Section 56.15, Florida Statutes, is amended to
107 read:
108 56.15 Executions; stay of illegal writs.—If any execution
109 issues illegally, the judgment debtor defendant in execution may
110 obtain a stay by making and delivering an affidavit to the
111 officer having the execution, stating the illegality and whether
112 any part of the execution is due, with a bond with surety
113 payable to the judgment creditor plaintiff in double the amount
114 of the execution or the part of which a stay is sought
115 conditioned to pay the execution or part claimed to be illegal
116 and any damages for delay if the affidavit is not well founded.
117 On receipt of such affidavit and bond the officer shall stay
118 proceedings on the execution and return the bond and affidavit
119 to the court from which the execution issued. The court shall
120 pass on the question of illegality as soon as possible. If the
121 execution is adjudged illegal in any part, the court shall stay
122 it as to the part but if it is adjudged legal in whole or in
123 part, the court shall enter judgment against the principal and
124 surety on such bond for the amount of so much of the execution
125 as is adjudged to be legal and execution shall issue thereon.
126 Section 10. Section 56.16, Florida Statutes, is amended to
127 read:
128 56.16 Executions; claims of third parties to property
129 levied on.—If any person, including a person to whom a Notice to
130 Appear has been issued pursuant to s. 56.29(2), other than the
131 judgment debtor defendant in execution claims any property
132 levied on, he or she may obtain possession of the property by
133 filing with the officer having the execution an affidavit by the
134 claimant, or the claimant’s himself or herself, his or her agent
135 or attorney, that the property claimed belongs to the claimant
136 him or her and by furnishing the officer a bond with surety to
137 be approved by the officer in favor of the judgment creditor
138 plaintiff in double the value of the goods claimed as the value
139 is fixed by the officer and conditioned to deliver said property
140 on demand of said officer if it is adjudged to be the property
141 of the judgment debtor defendant in execution and to pay the
142 judgment creditor plaintiff all damages found against the
143 claimant him or her if it appears that the claim was interposed
144 for the purpose of delay.
145 Section 11. Section 56.18, Florida Statutes, is amended to
146 read:
147 56.18 Executions; trial of claims of third persons.—As soon
148 as possible after the return, or after service of a Notice to
149 Appear pursuant to s. 56.29(2), a jury, if not waived, shall be
150 impaneled to try the right of property. If the verdict is in
151 favor of the judgment creditor plaintiff and it appears that the
152 claim brought pursuant to s. 56.16 was interposed for delay, the
153 judgment creditor plaintiff may be awarded reasonable damages,
154 not exceeding 20 percent of the value of the property claimed.
155 If the claimant denies in writing under oath filed at least 3
156 days before the trial, the correctness of the appraisement of
157 the value of the property by the officer levying the execution,
158 and the verdict is in favor of the judgment creditor plaintiff,
159 the jury if not waived, shall fix the value of each item
160 thereof, or of the items covered by such denial.
161 Section 12. Section 56.19, Florida Statutes, is amended to
162 read:
163 56.19 Judgments upon claims of third persons.—Upon the
164 verdict of the jury, the court shall enter judgment deciding the
165 right of property, and if the verdict is for the judgment
166 creditor plaintiff, awarding a recovery by the judgment creditor
167 plaintiff from the claimant defendant and the claimant’s his or
168 her sureties, of the value (as fixed by the officer, or as fixed
169 by the jury if fixed by it) of such parts of the property as the
170 jury may have found subject to execution that were delivered to
171 the claimant, and awarding separately such damages as the jury
172 may be have awarded under s. 56.18, and of all costs attending
173 the presentation and trial of the claim.
174 Section 13. Section 56.20, Florida Statutes, is amended to
175 read:
176 56.20 Executions on judgments against third person
177 claimants.—If the execution issued on the judgment is not paid,
178 it shall be satisfied in the usual manner unless on demand of
179 the officer holding it, the principal and surety in the claim
180 bond deliver the property released under the claim bond to the
181 officer and pay him or her the damages and costs awarded to the
182 judgment creditor plaintiff. If the property is returned to the
183 officer but damages and costs are not paid, execution shall be
184 enforced for the damages and costs. If part of the property is
185 returned to the officer, the execution shall be enforced for the
186 value, fixed as aforesaid, of that not returned. All property
187 returned shall be sold under the original execution against the
188 judgment debtor original defendant.
189 Section 14. Section 56.22, Florida Statutes, is amended to
190 read:
191 56.22 Execution sales; time, date, and place of sale.—
192 (1) All sales of property under legal process shall take
193 place at the time, date, and place advertised in the notice of
194 the sheriff’s sale on any day of the week except Saturday and
195 Sunday and shall continue from day to day until such property is
196 disposed of.
197 (2) Property not effectively disposed of at the initial
198 sheriff’s sale may be readvertised, as provided in s. 56.21,
199 upon receipt of an additional deposit to cover costs incurred in
200 connection with the maintenance of the property under legal
201 process. If In the event no additional deposit is received by
202 the sheriff, the property may be returned to the judgment debtor
203 defendant; if the judgment debtor defendant refuses to accept
204 such property, the property may be returned to a third party,
205 such as a lienholder, upon presentation of a proper court order
206 directing such return. If the property cannot be returned as
207 described in this subsection none of the above can be
208 accomplished, such property shall be disposed of as unclaimed or
209 abandoned.
210 Section 15. Section 56.26, Florida Statutes, is amended to
211 read:
212 56.26 Executions; mandamus to force levy and sale.—When an
213 officer holds an unsatisfied execution and refuses to levy on
214 property liable thereunder and on which it is his or her duty to
215 levy or having levied, refuses to advertise and sell the
216 property levied on, the judgment creditor plaintiff in execution
217 is entitled to an alternative writ of mandamus requiring the
218 officer to levy such execution or advertise and sell the
219 property levied on, or both, as the case may be.
220 Section 16. Subsection (1) and paragraph (a) of subsection
221 (4) of section 56.27, Florida Statutes, are amended to read:
222 56.27 Executions; payment of money collected.—
223 (1) All money received under executions shall be paid, in
224 the order prescribed, to the following: the sheriff, for costs;
225 the levying creditor in the amount of $500 as liquidated
226 expenses; and the priority lienholder under s. 55.10(1) and (2),
227 s. 55.202, s. 55.204(3), or s. 55.208(2), as set forth in an
228 affidavit required by subsection (4), or the levying creditor’s
229 his or her attorney, in satisfaction of the judgment lien, if
230 the judgment lien has not lapsed at the time of the levy. The
231 receipt of the attorney shall be a release of the officer paying
232 the money to him or her. If the name of more than one attorney
233 appears in the court file, the money shall be paid to the
234 attorney who originally commenced the action or who made the
235 original defense unless the file shows that another attorney has
236 been substituted.
237 (4) Before the date of the first publication or posting of
238 the notice of sale provided for under s. 56.21, at the time of
239 the levy request to the sheriff, the levying creditor shall
240 deliver to the sheriff an affidavit setting forth all of the
241 following as to the judgment debtor:
242 (a) For a personal property levy, an attestation by the
243 levying creditor or the levying creditor’s attorney of record
244 that he or she has reviewed the database or judgment lien
245 records established in accordance with ss. 55.201-55.209 and
246 that the information contained in the affidavit based on that
247 review is true and correct. For a real property levy in
248 accordance with s. 55.10(1) and (2), an attestation by the
249 levying creditor or the levying creditor’s his or her attorney
250 of record that he or she has reviewed the records of the clerk
251 of the court of the county where the property is situated, or
252 that he or she has performed or reviewed a title search, and
253 that the information contained in the affidavit, including a
254 disclosure of all judgment liens, mortgages, financing
255 statements, tax warrants, and other liens against the real
256 property, based on that review or title search is true and
257 correct.
258 Section 17. Section 56.28, Florida Statutes, is amended to
259 read:
260 56.28 Executions; failure of officer to pay over moneys
261 collected.—If any officer collecting money under execution fails
262 or refuses to pay it over within 30 days after it has been
263 received by him or her, or within 10 days after demand by the
264 levying creditor or the levying creditor’s plaintiff or his or
265 her attorney of record made in writing and delivered during
266 regular business hours to the civil process bureau, the officer
267 is liable to pay the same and 20 percent damages, to be
268 recovered by motion in court.
269 Section 18. Section 56.29, Florida Statutes, is amended to
270 read:
271 56.29 Proceedings supplementary.—
272 (1) When any judgment creditor person or entity holds an
273 unsatisfied judgment or judgment lien obtained under chapter 55,
274 the judgment creditor holder or judgment lienholder may file a
275 motion and an affidavit so stating, identifying, if applicable,
276 the issuing court, the case number, and the unsatisfied amount
277 of the judgment or judgment lien, including accrued costs and
278 interest, and stating that the execution is valid and
279 outstanding, and thereupon the judgment creditor holder or
280 judgment lienholder is entitled to these proceedings
281 supplementary to execution.
282 (2) The judgment creditor shall, in the motion described in
283 subsection (1) or in a supplemental affidavit, describe any
284 property of the judgment debtor not exempt from execution in the
285 hands of any person or any property, debt, or other obligation
286 due to the judgment debtor which may be applied toward the
287 satisfaction of the judgment. Upon filing of the motion and
288 affidavits that property of the judgment debtor, or any debt, or
289 other obligation due to the judgment debtor in the custody or
290 control of any other person may be applied to satisfy the
291 judgment, then the court shall issue a Notice to Appear. The
292 Notice to Appear shall direct such person to file an affidavit,
293 as provided in s. 56.16, with the court by a date certain, which
294 date shall not be less than 7 business days from the date of
295 service of the Notice to Appear, stating why the property, debt,
296 or other obligation should not be applied to satisfy the
297 judgment. For good cause shown, the court may shorten the time
298 for serving an affidavit. The Notice to Appear must describe
299 with reasonable particularity the property, debt, or other
300 obligation that may be available to satisfy the judgment, must
301 provide such person with the opportunity to present defenses,
302 and must indicate that discovery as provided under the rules of
303 civil procedure is available and that there is a right to a jury
304 trial as provided in s. 56.18. The Notice to Appear must be
305 served as provided for in chapter 48. A responding affidavit
306 must raise any fact or defense opposing application of the
307 property described in the Notice to Appear to satisfy the
308 judgment, including legal defenses, such as lack of personal
309 jurisdiction. Legal defenses need not be filed under oath but
310 must be served contemporaneously with the affidavit On such
311 plaintiff’s motion the court shall require the defendant in
312 execution to appear before it or a general or special magistrate
313 at a time and place specified by the order in the county of the
314 defendant’s residence to be examined concerning his or her
315 property.
316 (3) The order shall be served in a reasonable time before
317 the date of the examination in the manner provided for service
318 of summons or may be served on such defendant or his or her
319 attorney as provided for service of papers in the rules of civil
320 procedure.
321 (4) Testimony shall be under oath, shall be comprehensive
322 and cover all matters and things pertaining to the business and
323 financial interests of defendant which may tend to show what
324 property he or she has and its location. Any testimony tending
325 directly or indirectly to aid in satisfying the execution is
326 admissible. A corporation must attend and answer by an officer
327 who may be specified in the order. Examination of witnesses
328 shall be as at trial and any party may call other witnesses.
329 (5) The court may order any property of the judgment
330 debtor, not exempt from execution, in the hands of any person,
331 or any property, debt, or other obligation due to the judgment
332 debtor, to be applied toward the satisfaction of the judgment
333 debt. The court may entertain claims concerning the judgment
334 debtor’s assets brought under chapter 726 and enter any order or
335 judgment, including a money judgment against any initial or
336 subsequent transferee, in connection therewith, irrespective of
337 whether the transferee has retained the property. Claims under
338 chapter 726 are subject to the provisions of chapter 726 and
339 applicable rules of civil procedure.
340 (3)(6)(a) When, within 1 year before the service of process
341 on the judgment debtor in the original proceeding or action him
342 or her, the judgment debtor defendant has had title to, or paid
343 the purchase price of, any personal property to which the
344 judgment debtor’s defendant’s spouse, any relative, or any
345 person on confidential terms with the judgment debtor defendant
346 claims title and right of possession at the time of examination,
347 the judgment debtor defendant has the burden of proof to
348 establish that such transfer or gift from him or her was not
349 made to delay, hinder, or defraud creditors.
350 (b) When any gift, transfer, assignment or other conveyance
351 of personal property has been made or contrived by the judgment
352 debtor to delay, hinder, or defraud creditors, the court shall
353 order the gift, transfer, assignment or other conveyance to be
354 void and direct the sheriff to take the property to satisfy the
355 execution. This does not authorize seizure of property exempted
356 from levy and sale under execution or property which has passed
357 to a bona fide purchaser for value and without notice. Any
358 person aggrieved by the levy or Notice to Appear may proceed
359 under ss. 56.16-56.20.
360 (4)(7) At any time the court may refer the proceeding to a
361 general or special magistrate who may be directed to report
362 findings of law or fact, or both. The general or special
363 magistrate has all the powers thereof, including the power to
364 issue subpoena, and shall be paid the fees provided by the court
365 law.
366 (5)(8) A party or a witness examined under these provisions
367 is not excused from answering a question on the ground that the
368 answer will tend to show him or her guilty of the commission of
369 a fraud, or prove that he or she has been a party or privy to,
370 or knowing of a conveyance, assignment, transfer, or other
371 disposition of property for any purpose, or that the party or
372 witness or another person claims to have title as against the
373 judgment debtor defendant or to hold property derived from or
374 through the judgment debtor defendant, or to be discharged from
375 the payment of a debt which was due to the judgment debtor
376 defendant or to a person on in his or her behalf of the judgment
377 debtor. An answer cannot be used as evidence against the person
378 so answering in any criminal proceeding.
379 (6)(9) The court may order any property of the judgment
380 debtor, not exempt from execution, or any property, debt, or
381 other obligation due to the judgment debtor, in the hands of or
382 under the control of any person subject to the Notice to Appear,
383 to be levied upon and applied toward the satisfaction of the
384 judgment debt. The court may enter any orders, judgments, or
385 writs required to carry out the purpose of this section,
386 including those orders necessary or proper to subject property
387 or property rights of any judgment debtor to execution, and
388 including entry of money judgments as provided in ss. 56.16
389 56.19 against any person to whom a Notice to Appear has been
390 directed and over whom the court obtained personal jurisdiction
391 impleaded defendant irrespective of whether such person
392 defendant has retained the property, subject to ss. 56.18 and
393 56.19 and applicable principles of equity, and in accordance
394 with chapters 76 and 77 and all applicable rules of civil
395 procedure. Sections 56.16–56.20 apply to any order issued under
396 this subsection.
397 (7)(10) Any person failing to obey any order issued under
398 this section by a judge or general or special magistrate or
399 failing to attend in response to a subpoena served on him or her
400 may be held in contempt.
401 (8)(11) Costs for proceedings supplementary shall be taxed
402 against the judgment debtor defendant as well as all other
403 incidental costs determined to be reasonable and just by the
404 court including, but not limited to, docketing the execution,
405 sheriff’s service fees, and court reporter’s fees. Reasonable
406 attorney attorney’s fees may be taxed against the judgment
407 debtor defendant.
408 (9) The court may entertain claims concerning the judgment
409 debtor’s assets brought under chapter 726 and enter any order or
410 judgment, including a money judgment against any initial or
411 subsequent transferee, in connection therewith, irrespective of
412 whether the transferee has retained the property. Claims under
413 chapter 726 brought under this section shall be initiated by a
414 supplemental complaint and served as provided by the rules of
415 civil procedure, and the claims under the supplemental complaint
416 are subject to chapter 726 and the rules of civil procedure. The
417 clerk of the court shall docket a supplemental proceeding under
418 the same case number assigned to the original complaint filed by
419 the judgment creditor or the case number assigned to a judgment
420 domesticated pursuant to s. 55.01, shall assign a separate
421 supplemental proceeding number, and shall assign such
422 supplemental proceeding to the same division and judge assigned
423 to the main case or domesticated judgment.
424 Section 19. Section 56.30, Florida Statutes, is created to
425 read:
426 56.30 Discovery in proceedings supplementary.—
427 (1) In addition to any other discovery permitted under the
428 rules of civil procedure, on the judgment creditor’s motion the
429 court shall require the judgment debtor to appear before it or a
430 general or special magistrate at a time and place specified by
431 the order in the county of the judgment debtor’s residence or
432 principal place of business to be examined concerning property
433 subject to execution. This examination may occur before issuance
434 of a Notice to Appear.
435 (2) The order shall be served in a reasonable time before
436 the date of the examination in the manner provided for service
437 of summons or may be served on the judgment debtor or the
438 judgment debtor’s attorney of record as provided for service of
439 papers in the rules of civil procedure.
440 (3) Testimony shall be under oath, shall be comprehensive,
441 and cover all matters and things pertaining to the business and
442 financial interests of the judgment debtor which may tend to
443 show what property the judgment debtor has and its location. Any
444 testimony tending directly or indirectly to aid in satisfying
445 the execution is admissible. A corporate judgment debtor must
446 attend and answer by a designee with knowledge or an identified
447 officer or manager who may be specified in the order.
448 Examination of witnesses shall be as at trial and any party may
449 call other witnesses to be examined concerning property that may
450 be subject to execution.
451 Section 20. This act shall take effect July 1, 2016.
452
453 ================= T I T L E A M E N D M E N T ================
454 And the title is amended as follows:
455 Delete everything before the enacting clause
456 and insert:
457 A bill to be entitled
458 An act relating to judgments; creating s. 56.0101,
459 F.S.; providing definitions for purposes of ch. 56,
460 F.S.; amending s. 56.011, F.S.; revising terminology;
461 amending s. 56.021, F.S.; providing that an execution
462 is valid and effective during the life of the order on
463 which it is issued; amending ss. 56.041, 56.071,
464 56.09, 56.10, 56.12, and 56.15, F.S.; revising
465 terminology; amending s. 56.16, F.S.; specifying that
466 persons to whom a Notice to Appear has been issued may
467 obtain possession of property levied on by complying
468 with certain procedures; revising terminology;
469 amending s. 56.18, F.S.; specifying that a jury, if
470 not waived, should be empaneled as soon as possible
471 after service of a Notice to Appear; revising
472 terminology; amending ss. 56.19, 56.20, 56.22, 56.26,
473 56.27, and 56.28, F.S.; revising terminology; amending
474 s. 56.29, F.S.; revising terminology; providing for
475 the issuance of a Notice to Appear; providing
476 requirements for such a notice; providing for service;
477 providing for requirements for a responding affidavit;
478 deleting provisions relating to examinations
479 concerning property; providing for fraudulent transfer
480 claims; creating s. 56.30, F.S.; providing for
481 discovery in proceedings supplementary; providing an
482 effective date.
483
