Bill Text: FL S1042 | 2016 | Regular Session | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Judgments
Spectrum: Bipartisan Bill
Status: (Passed) 2016-03-10 - Chapter No. 2016-33 [S1042 Detail]
Download: Florida-2016-S1042-Comm_Sub.html
Bill Title: Judgments
Spectrum: Bipartisan Bill
Status: (Passed) 2016-03-10 - Chapter No. 2016-33 [S1042 Detail]
Download: Florida-2016-S1042-Comm_Sub.html
Florida Senate - 2016 CS for SB 1042 By the Committee on Judiciary; and Senator Simmons 590-02069-16 20161042c1 1 A bill to be entitled 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.—In58no case shallA capias ad satisfaciendum may not be issued upon 59 a judgment, nor mayshallthe body of any persondefendantbe 60 subject to arrest or confinement for the payment of money, 61 exceptit befor 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 debtordefendantwith 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 personpartycausing 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 personpartyto 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 100corporations; generally.—On any judgment against a corporate 101 judgment debtor, the judgment creditorcorporation plaintiffmay 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 debtorsaid corporation. 105 Section 7. Section 56.10, Florida Statutes, is amended to 106 read: 107 56.10 Executions against corporate judgment debtors 108corporations; receivership.—If an execution cannot be satisfied 109 in whole or in part for lack of property of the corporate 110 judgment debtordefendant corporationsubject to levy and sale, 111 on motion of the judgment creditor the circuit court in chancery 112 within whose circuit such corporate judgment debtorcorporation113 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 debtorcorporationfor 116 the purpose of enforcing the judgment, and may appoint a 117 receiver for the corporate judgment debtorcorporation. 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 debtordefendant in executionwants to retake possession of any 125 property levied on, the judgment debtorhe or shemay do so by 126 executing a bond with surety to be approved by the officer in 127 favor of the judgment creditorplaintiffin 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 debtordefendant in executionmay 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 creditorplaintiffin 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 debtordefendant in executionclaims 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’shimself or herself, his or heragent 160 or attorney, that the property claimed belongs to the claimant 161him or herand by furnishing the officer a bond with surety to 162 be approved by the officer in favor of the judgment creditor 163plaintiffin 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 debtordefendant in executionand to pay the 167 judgment creditorplaintiffall damages found against the 168 claimanthim or herif 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 creditorplaintiffand it appears that the 177 claim brought pursuant to s. 56.16 was interposed for delay, the 178 judgment creditorplaintiffmay 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 creditorplaintiff, 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 creditorplaintiff, awarding a recovery by the judgment creditor 192plaintifffrom the claimantdefendantand the claimant’shis or193hersureties, 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 asthe jury197 may behaveawarded 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 creditorplaintiff. 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 debtororiginal 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. IfIn the eventno additional deposit is received by 227 the sheriff, the property may be returned to the judgment debtor 228defendant; if the judgment debtordefendantrefuses 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 subsectionnone of the above can be233accomplished, 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 creditorplaintiff in execution242 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 254his or herattorney, 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’shis or herattorney 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’splaintiff or his or290herattorney 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 creditorperson or entityholds an 298 unsatisfied judgment or judgment lien obtained under chapter 55, 299 the judgment creditorholder or judgment lienholdermay 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 creditorholder or305judgment lienholderis 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 affidavitOn such336plaintiff’s motion the court shall require the defendant in337execution to appear before it or a general or special magistrate338at a time and place specified by the order in the county of the339defendant’s residence to be examined concerning his or her340property. 341(3) The order shall be served in a reasonable time before342the date of the examination in the manner provided for service343of summons or may be served on such defendant or his or her344attorney as provided for service of papers in the rules of civil345procedure.346(4) Testimony shall be under oath, shall be comprehensive347and cover all matters and things pertaining to the business and348financial interests of defendant which may tend to show what349property he or she has and its location. Any testimony tending350directly or indirectly to aid in satisfying the execution is351admissible. A corporation must attend and answer by an officer352who may be specified in the order. Examination of witnesses353shall be as at trial and any party may call other witnesses.354(5) The court may order any property of the judgment355debtor, not exempt from execution, in the hands of any person,356or any property, debt, or other obligation due to the judgment357debtor, to be applied toward the satisfaction of the judgment358debt. The court may entertain claims concerning the judgment359debtor’s assets brought under chapter 726 and enter any order or360judgment, including a money judgment against any initial or361subsequent transferee, in connection therewith, irrespective of362whether the transferee has retained the property. Claims under363chapter 726 are subject to the provisions of chapter 726 and364applicable 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 actionhim367or her, the judgment debtordefendanthas had title to, or paid 368 the purchase price of, any personal property to which the 369 judgment debtor’sdefendant’sspouse, any relative, or any 370 person on confidential terms with the judgment debtordefendant371 claims title and right of possessionat the time of examination, 372 the judgment debtordefendanthas the burden of proof to 373 establish that such transfer or giftfrom him or herwas 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 390law. 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 debtordefendantor to hold property derived from or 399 through the judgment debtordefendant, or to be discharged from 400 the payment of a debt which was due to the judgment debtor 401defendantor to a person onin his or herbehalf 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 416impleaded defendantirrespective of whether such person 417defendanthas retained the property, subject toss. 56.18 and41856.19 andapplicable 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 debtordefendantas 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 attorneyattorney’sfees may be taxed against the judgment 432 debtordefendant. 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.