SENATE AMENDMENT
Bill No. SB 2126
Amendment No. 1 Barcode 382074
CHAMBER ACTION
Senate House
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11 The Committee on Commerce and Economic Opportunities
12 recommended the following amendment:
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14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
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17 and insert:
18 Section 1. Legislative intent.--
19 (1) The Legislature has found that it is in the best
20 interest of the people and businesses in the state to adopt
21 Revised Article 9 of the Uniform Commercial Code as proposed
22 by the National Conference of Commissioners on Uniform State
23 Law, subject to certain modifications. Revised Article 9
24 (chapter 679, Florida Statutes) almost exclusively affects
25 secured transactions and the relationships among secured
26 creditors, debtors, or other creditors, and purchasers of
27 personal property subject to a security interest. Both
28 individuals and business entities are intended to benefit from
29 the enactment of Revised Article 9.
30 (2) Revised Article 9 is intended to create a more
31 straightforward and efficient system for documenting the
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1 perfection, amendment, continuance, termination, assignment,
2 and transfer of security interests, requiring less
3 governmental involvement than that which is necessary under
4 existing law. Under Revised Article 9, states may delegate
5 their historical administrative and operational
6 responsibilities over financing-statement filings to a
7 nongovermental entity. This principle accords with the
8 Legislature's policy of reducing government's detailed
9 regulation and involvement with private commerce and business
10 transactions. Consistent with other revisions to current
11 chapter 679, Florida Statutes, adopted by this act, the
12 requirement for exclusive administration and operations by the
13 state of the system of filing and maintaining documents
14 evidencing secured transactions no longer exists. However, the
15 fulfillment of the duties of the filing office and filing
16 officer remain essential to the uninterrupted flow of secured
17 transactions, and the State of Florida retains ownership of
18 all records filed and maintained under chapter 679, Florida
19 Statutes, and databases evidencing such documents, and the
20 Secretary of State retains governmental oversight over the
21 private filing agency to which the filing office's and filing
22 officer's duties under Revised Article 9 are transferred. The
23 Legislature, therefore, enacts this act as part of chapter
24 679, Florida Statutes.
25 Section 2. Subsections (1) and (5) of section 679.401,
26 Florida Statutes, are amended to read:
27 679.401 Place of filing; erroneous filing; removal of
28 collateral.--
29 (1) The proper place to file in order to perfect a
30 security interest is as follows:
31 (a) If the collateral is farm products, or accounts,
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SENATE AMENDMENT
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Amendment No. 1 Barcode 382074
1 or general intangibles arising from or relating to the sale of
2 farm products by a farmer, by recording:
3 1. In the office of the clerk of the circuit court in
4 the county of the debtor's place of business if he or she has
5 one, in the county of the debtor's chief executive office if
6 he or she has more than one place of business, otherwise in
7 the county of the debtor's residence; or
8 2. If the debtor is not a resident of this state, in
9 the office of the clerk of the circuit court in the county
10 where the collateral is located; and
11 3. In addition, if the collateral is crops, in the
12 office of the clerk of the circuit court in the county where
13 the land is located on which the crops are growing or to be
14 grown.
15 (b) When the collateral is timber to be cut or is
16 minerals or the like (including oil and gas) or is accounts
17 subject to s. 679.103(5) or is goods which are or are to
18 become fixtures, then in the office where a mortgage on the
19 real estate would be filed or recorded.
20 (c) In all other cases, by filing under the Florida
21 Secured Transaction Registry in the office of the Department
22 of State.
23 (5) Notwithstanding the preceding subsections, and
24 subject to s. 679.302(3), the proper place to file in order to
25 perfect a security interest in collateral, including fixtures,
26 of a transmitting utility is under the Florida Secured
27 Transaction Registry the office of the Department of State.
28 Section 3. Section 679.4015, Florida Statutes, is
29 created to read:
30 679.4015 Florida Secured Transaction Registry.--
31 (1) The Florida Secured Transaction Registry is the
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1 centralized database in which all initial financing
2 statements, amendments, assignments, and other statements of
3 change authorized to be filed under this chapter are filed and
4 maintained and from which they are retrieved. The Florida
5 Secured Transaction Registry shall include the date and other
6 information pertaining to Uniform Commercial Code Records
7 filed with the Secretary of State and effective under this
8 chapter before October 1, 2001, or filed with the Secretary of
9 State or with the private filing agency or UCC filing agent as
10 authorized in this section after October 1, 2001. Consistent
11 with s. 679.401, this section does not apply to initial
12 financing statements, amendments, assignments, and other
13 statements of change filed under this chapter with an office
14 of the clerk of the circuit court.
15 (2) Except as otherwise provided in this section, the
16 duties of the filing office and filing officer under this
17 chapter may be performed by an entity that is qualified to
18 transact business in this state (the private filing agency)
19 and that has entered into a written contract with the
20 Department of State satisfying the minimum requirements
21 provided in this section. The private filing agency, among its
22 other duties conferred by contract or this part, shall have
23 the responsibility for acting as the filing office under this
24 chapter and overseeing the continued existence and maintenance
25 of the Florida Secured Transaction Registry.
26 (3) The Secretary of State, or the private filing
27 agency if authorized by the Secretary of State in the contract
28 or another writing, may enter into a separate contract
29 approved by the Secretary of State and satisfying the minimum
30 requirements provided in this section with another entity
31 qualified to transact business in this state (the UCC filing
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1 agent) for the purpose of physically performing the filing
2 officer's duties under this part. However, the private filing
3 agency, unless displaced by the Secretary of State or a
4 subsequent private filing agency, shall remain the filing
5 office under this chapter.
6 (4) Upon the effective date of the contract with the
7 private filing agency or on October 31, 2001, whichever is
8 later, the Secretary of State and the Department of State,
9 respectively, shall cease acting as the filing officer and
10 filing office under this part, although the Secretary of State
11 shall retain authority and powers as otherwise provided in
12 this section or by other applicable law.
13 (5) The Secretary of State shall immediately develop
14 and issue a request for qualifications seeking qualified
15 entities to perform the duties of the private filing agency
16 and UCC filing agent under this part. The qualifications and
17 any contract must, at a minimum, require:
18 (a) The creation and maintenance of a central filing,
19 recording, retrieval, and response system as part of the
20 Florida Secured Transaction Registry which is capable of
21 satisfying the filing-officer and filing-office requirements
22 under this chapter, which system must be comparable and
23 compatible with the filing system in existence immediately
24 prior to the effective date of this section to the fullest
25 extent possible as determined by the Secretary of State.
26 (b) Continuous and easy access by the public,
27 including review at no charge through the Internet or such
28 other substitute medium as is acceptable to the Secretary of
29 State, of all UCC records filed and maintained by the
30 Department of State under this chapter as of the effective
31 date of this section and of all UCC records filed and
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1 maintained after the effective date of this section, subject
2 to any requirements or limitations of chapter 119 and this
3 chapter.
4 (c) Record maintenance in compliance with this part
5 and chapter 119.
6 (d) Oversight by the Secretary of State, including
7 compliance audits of the performance standards described in
8 subsection (7).
9 (e) Maintenance of the current level of filing fees
10 and procedures for the deposit of revenues, net of operating
11 costs, consistent with chapter 15.
12 (f) A bond by the private filing agency and UCC filing
13 agent in an amount acceptable to the Secretary of State.
14 (6) Except as otherwise provided in a contract
15 approved by the Secretary of State, the private filing agency
16 and UCC filing agent are not liable to any person harmed by
17 their failure to comply with the filing-officer or
18 filing-office requirements under this chapter unless such
19 failure is due to specific acts or omissions done recklessly
20 or committed knowingly and with malicious intent, and then
21 only to the extent that such acts or omissions directly and
22 proximately cause ascertainable damages.
23 (7) The Secretary of State shall develop performance
24 standards to ensure that the Florida Secured Transaction
25 Registry and its central filing system implemented and
26 maintained by the private filing agency or UCC filing agent
27 are accurate and complete and that the system implemented and
28 maintained satisfies the responsibilities of the filing office
29 and filing officer under this chapter and meets the needs of
30 various persons and entities using or affected by the filing
31 system.
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1 (8) Any contract between the Secretary of State and
2 the private filing agency or UCC filing agent or between the
3 private filing agency and the UCC filing agent is not
4 assignable, absolutely or for security, or otherwise
5 transferable without the express written consent of the
6 Secretary of State, which consent may be withheld in his or
7 her sole and absolute discretion.
8 (9) The Secretary of State shall, as soon as
9 practicable, either assume temporarily or permanently the
10 duties of the filing office and filing officer under this
11 chapter or assign the duties of the filing office and filing
12 officer under this chapter to a new private filing agency or
13 UCC filing agent, as applicable, which meets the requirements
14 of this section and which enters into a new contract with the
15 Secretary of State satisfying the requirements of this
16 section:
17 (a) If:
18 1. A private filing agency or UCC filing agent has not
19 been approved by the Secretary of State and a contract
20 required by this section has not been executed;
21 2. The private filing agency or UCC filing agent
22 ceases, is unable, or fails to perform the duties of the
23 filing office or filing officer which are required under this
24 chapter or which are provided for in any contract, as
25 determined by the Secretary of State in accordance with the
26 terms of the contract; or
27 3. An assignee for the benefit of creditors is
28 appointed for the private filing agency or UCC filing agent or
29 its assets or a receiver is appointed for the private filing
30 agency or UCC filing agent or its assets other than by the
31 Secretary of State; and
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1 (b) Notwithstanding:
2 1. That a bankruptcy case or other insolvency
3 proceeding has been commenced by the private filing agency or
4 UCC filing agent; or
5 2. That an involuntary bankruptcy case or other
6 insolvency proceeding has been commenced against the private
7 filing agency or UCC filing agent and the case or proceeding
8 has not been dismissed within 5 business days after the
9 petition's filing.
10 (10) Immediately upon the occurrence of an event
11 described in subsection (9)(a)1. or 3. or (b), any rights of
12 the private filing agency or UCC filing agent, as applicable,
13 pertaining to the contract or otherwise with respect to this
14 chapter shall terminate without any further action being
15 required. Upon the occurrence of an event described in
16 subsection (9)(a)2., any rights of the private filing agency
17 or UCC filing agent, as applicable, pertaining to the contract
18 or otherwise with respect to this chapter may terminate, in
19 the discretion of the Secretary of State, upon written notice
20 to the private filing agency or UCC filing agent.
21 (11) If required by the Secretary of State, any
22 contract with the private filing agency or UCC filing agent
23 entered into pursuant to this section must provide that any
24 exclusive rights of the private filing agency and UCC filing
25 agent terminate automatically without further action upon any
26 default under the contract, even if the default is capable of
27 being cured under law.
28 (12) The Florida Secured Transaction Registry;
29 databases, source or object codes, and any software relating
30 to the Florida Secured Transaction Registry and system for
31 central filing under this part and all information contained
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1 in any of the foregoing; all documents and records, in
2 whatever form or medium, filed with, created by, or maintained
3 by the private filing agency or UCC filing agent under this
4 chapter, including all UCC records and any other records or
5 documents relating to the UCC records, in whatever form or
6 medium, whether existing prior to the effective date of this
7 section or thereafter (collectively, the UCC filing office
8 materials and records), shall be and remain the sole and
9 exclusive property of the state, and upon demand the originals
10 and all copies are subject to immediate return by the private
11 filing agency or UCC filing agent, as applicable, to the
12 Secretary of State upon the occurrence of any of the events
13 enumerated in subsection (9). The Secretary of State also has
14 the right to inspect at any time and make copies of the UCC
15 filing office materials and records, and the cost shall be
16 borne as provided in the contracts with or approved by the
17 Secretary of State. Neither the private filing agency nor UCC
18 filing agent shall have or acquire any rights in the Florida
19 Secured Transaction Registry or the UCC filing office
20 materials and records, and neither of them may sell, license,
21 lease, donate, copyright, patent, trademark, pledge, or
22 otherwise transfer any of the UCC filing office materials and
23 records to any person or entity, except as authorized in
24 writing by the Secretary of State.
25 (13) To the extent permitted by its contract with the
26 Secretary of State and provided that the procedures for
27 certification required by the Secretary of State are complied
28 with, the private filing agency and UCC filing agent are
29 authorized to certify any of the UCC records for purposes of
30 admissibility in a state or federal court or other tribunal
31 proceeding, upon request by a authenticated record and payment
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1 of a service charge in the amount permitted in the contract
2 with the private filing agency and UCC filing agent, as
3 applicable. Such certified record constitutes a public record
4 under s. 90.803(8).
5 (14) The private filing agency and UCC filing agent
6 are subject to the exclusive original jurisdiction of the
7 Circuit Court of Leon County for any litigation between or
8 among the Secretary of State, the private filing agency, and
9 the UCC filing agent. The Secretary of State is entitled to
10 emergency injunctive relief if the private filing agency or
11 UCC filing agent or its agents or employees fail to turn over
12 any of the UCC filing office materials and records or
13 otherwise fail to comply with their contracts or with the
14 filing officer's or filing office's duties under this part.
15 (15) As used in this part in this connection with
16 carrying out the filing office's and filing officer's duties
17 assigned to them under this chapter, the terms "Florida
18 Secretary of State," "Secretary of State," or "Secretary" also
19 refer to the private filing agency or UCC filing agent, as
20 applicable.
21 Section 4. This act shall take effect upon becoming a
22 law.
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25 ================ T I T L E A M E N D M E N T ===============
26 And the title is amended as follows:
27 Delete everything before the enacting clause
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29 and insert:
30 A bill to be entitled
31 An act relating to filings administered by the
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SENATE AMENDMENT
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Amendment No. 1 Barcode 382074
1 Department of State; providing legislative
2 findings and intent; amending s. 679.401, F.S.;
3 prescribing methods for filing security
4 interests; creating s. 679.4015, F.S.;
5 establishing the Florida Secured Transaction
6 Registry; prescribing duties of the Department
7 of State and Secretary of State; prescribing
8 standards for the registry; providing powers
9 and duties of contracting entities performing
10 services with respect to the registry;
11 providing an effective date.
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