2010 Florida Statutes
Enforcement of lien by sale of motor vehicle.
Enforcement of lien by sale of motor vehicle.—
A person claiming a lien under s. 713.58 for performing labor or services on a motor vehicle may enforce such lien by sale of the vehicle in accordance with the following procedures:
The lienor must give notice, by certified mail, return receipt requested, within 15 business days, excluding Saturday and Sunday, from the beginning date of the assessment of storage charges on said motor vehicle, to the registered owner of the vehicle, to the customer as indicated on the order for repair, and to all other persons claiming an interest in or lien thereon, as disclosed by the records of the Department of Highway Safety and Motor Vehicles or of a corresponding agency of any other state in which the vehicle appears registered. Such notice must contain:
A description of the vehicle (year, make, vehicle identification number) and its location.
The name and address of the owner of the vehicle, the customer as indicated on the order for repair, and any person claiming an interest in or lien thereon.
The name, address, and telephone number of the lienor.
Notice that the lienor claims a lien on the vehicle for labor and services performed and storage charges, if any, and the cash sum which, if paid to the lienor, would be sufficient to redeem the vehicle from the lien claimed by the lienor.
Notice that the lien claimed by the lienor is subject to enforcement pursuant to this section and that the vehicle may be sold to satisfy the lien.
If known, the date, time, and location of any proposed or scheduled sale of the vehicle. No vehicle may be sold earlier than 60 days after completion of the repair work.
Notice that the owner of the vehicle or any person claiming an interest in or lien thereon has a right to a hearing at any time prior to the scheduled date of sale by filing a demand for hearing with the clerk of the circuit court in the county in which the vehicle is held and mailing copies of the demand for hearing to all other owners and lienors as reflected on the notice.
Notice that the owner of the vehicle has a right to recover possession of the vehicle without instituting judicial proceedings by posting bond in accordance with the provisions of s. 559.917.
Notice that any proceeds from the sale of the vehicle remaining after payment of the amount claimed to be due and owing to the lienor will be deposited with the clerk of the circuit court for disposition upon court order pursuant to subsection (8).
If attempts to locate the owner or lienholder are unsuccessful, the lienor must notify the local law enforcement agency in writing by certified mail or acknowledged hand delivery that the lienor has been unable to locate the owner or lienholder, that a physical search of the vehicle has disclosed no ownership information, and that a good faith effort has been made. A description of the motor vehicle which includes the year, make, and identification number must be given on the notice. This notification must take place within 15 business days, excluding Saturday and Sunday, from the beginning date of the assessment of storage charges on said motor vehicle. For purposes of this paragraph, the term “good faith effort” means that the following checks have been performed by the company to establish the prior state of registration and title:
A check of vehicle for any type of tag, tag record, temporary tag, or regular tag;
A check of vehicle for inspection sticker or other stickers and decals that could indicate the state of possible registration; and
A check of the interior of the vehicle for any papers that could be in the glove box, trunk, or other areas for the state of registration.
If the date of the sale was not included in the notice required in subsection (1), notice of the sale must be sent by certified mail, return receipt requested, not less than 15 days before the date of sale, to the customer as indicated on the order for repair, and to all other persons claiming an interest in or lien on the motor vehicle, as disclosed by the records of the Department of Highway Safety and Motor Vehicles or of a corresponding agency of any other state in which the vehicle appears to have been registered. After diligent search and inquiry, if the name and address of the registered owner or the owner of the recorded lien cannot be ascertained, the requirements for this notice may be disregarded.
The lienor, at least 15 days before the proposed or scheduled date of sale of the vehicle, shall publish the notice required by this section once in a newspaper circulated in the county where the vehicle is held. A certificate of compliance with the notification provisions of this section, verified by the lienor, together with a copy of the notice and return receipt for mailing of the notice required by this section, and proof of publication, must be duly and expeditiously filed with the clerk of the circuit court in the county where the vehicle is held. The lienor, at the time of filing the certificate of compliance, must pay to the clerk of that court a service charge of $10 for indexing and recording the certificate.
At any time prior to the proposed or scheduled date of sale of a vehicle, the owner of the vehicle, or any person claiming an interest in the vehicle or a lien thereon, may file a demand for hearing with the clerk of the circuit court in the county in which the vehicle is held to determine whether the vehicle has been wrongfully taken or withheld from her or him. Any person who files a demand for hearing shall mail copies of the demand to all other owners and lienors as reflected on the notice required in subsection (1). Upon the filing of a demand for hearing, a hearing shall be held prior to the proposed or scheduled date of sale of the vehicle.
In the event a lienor institutes a judicial proceeding to enforce a lien, no filing fee shall be required at the time of filing, but the court shall require the lienor to pay the filing fee unless the lienor shall prevail in the action.
At the hearing on the complaint, the court shall forthwith issue its order determining:
Whether the vehicle is subject to a valid lien by the lienor and the amount thereof;
The priority of the lien of the lienor as against any existing security interest in the vehicle;
The distribution of any proceeds of the sale by the clerk of the circuit court;
The award of reasonable attorney’s fees and costs to the prevailing party; and
The reasonableness of storage charges.
A vehicle subject to lien enforcement pursuant to this section must be sold by the lienor at public sale. Immediately upon the sale of the vehicle and payment in cash of the purchase price, the lienor shall deposit with the clerk of the circuit court the proceeds of the sale less the amount claimed by the lienor for work done and storage, if any, and all reasonable costs and expenses incurred in conducting the sale, including any attorney’s fees and costs ordered by the court. Simultaneously with depositing the proceeds of sale remaining after payment to the lienor, the lienor shall file with the clerk a verified report of the sale stating a description of the vehicle sold, including the vehicle identification number; the name and address of the purchaser; the date of the sale; and the selling price. The report shall also itemize the amount retained by the lienor pursuant to this section and shall indicate whether a hearing was demanded and held. All proceeds held by the court shall be held for the benefit of the owner of the vehicle or any lienholder whose lien is discharged by the sale and shall be disbursed only upon order of the court. Unless a proceeding is initiated to validate a claim to such proceeds within 1 year and a day from the date of the sale, the proceeds shall be deemed abandoned property and disposition thereof shall be governed by s. 705.103. The clerk shall receive 5 percent of the proceeds deposited with her or him, not to exceed $25, for her or his services under this section.
A copy of the certificate of compliance and the report of sale, certified by the clerk of the court, shall constitute satisfactory proof for application to the Department of Highway Safety and Motor Vehicles for transfer of title, together with any other proof required by any rules and regulations of the department.
Nothing contained in this section shall be construed as affecting an owner’s right to redeem her or his vehicle from the lien at any time prior to sale by paying the amount claimed by the lienor for work done and assessed storage charges, plus any costs incurred by the repair shop for utilizing enforcement procedures under this section.
Nothing in this section shall operate in derogation of the rights and remedies established by s. 559.917.
When a vehicle is sold by a lienor in accordance with this law, a purchaser for value takes title to the vehicle free and clear of all claims, liens, and encumbrances whatsoever, unless otherwise provided by court order.
A failure to make good faith efforts as defined in subsection (2) precludes the imposition of any storage charges against the vehicle. If a lienor fails to provide notice to any person claiming a lien on a vehicle under subsection (1) within 15 business days after the assessment of storage charges have begun, then the lienor is precluded from charging for more than 15 days of storage, but failure to provide timely notice does not affect charges made for repairs, adjustments, or modifications to the vehicle or the priority of liens on the vehicle.
s. 1, ch. 80-139; s. 475, ch. 81-259; s. 10, ch. 87-145; s. 3, ch. 90-307; s. 76, ch. 94-237; s. 823, ch. 97-102.