Senate Bill sb0252er

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  1                                 

  2         An act relating to business filings; amending

  3         s. 608.406, F.S.; deleting certain authorized

  4         words or abbreviations in limited liability

  5         company names; requiring a company name to be

  6         distinguishable on records maintained by the

  7         Division of Corporations of the Department of

  8         State; providing exceptions; deleting a

  9         name-recording requirement for the department;

10         providing for nonapplication of certain

11         requirements relating to distinguishability of

12         company names in certain records under certain

13         circumstances; amending s. 608.407, F.S.;

14         requiring the name of a limited liability

15         company in the company's articles of

16         organization to satisfy certain requirements;

17         repealing s. 15.091, F.S., relating to

18         processing fees for filings of financial

19         statements and other written documents under

20         the Uniform Commerical Code; amending s.

21         671.101, F.S.; providing scope of chapter and a

22         short title; amending s. 671.102, F.S.;

23         authorizing certain timeframes to be fixed by

24         agreement; amending s. 671.106, F.S.; making

25         editorial changes; amending s. 671.107, F.S.;

26         providing for the discharge of a claim or right

27         under certain circumstances; amending s.

28         671.201, F.S.; providing, revising, and

29         deleting definitions; amending ss. 671.202 and

30         671.203, F.S.; making editorial changes;

31         amending s. 671.204, F.S.; revising criteria


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 1         determining when an action is taken within a

 2         reasonable time and seasonably; amending s.

 3         671.205, F.S.; defining "course of

 4         performance"; revising the definition of

 5         "course of dealing"; providing that course of

 6         performance and course of dealing may be used

 7         for certain purposes; revising uses for express

 8         terms of an agreement; specifying when course

 9         of performance, course of dealing, or usage of

10         trade prevails; providing that course of

11         performance is relevant to show a waiver or

12         modification in certain circumstances;

13         repealing s. 671.206, F.S., relating to statute

14         of frauds for kinds of personal property not

15         otherwise covered; amending s. 671.208, F.S.;

16         making editorial changes; creating s. 671.209,

17         F.S.; providing definitions; specifying when

18         notice, knowledge, or notification becomes

19         effective with the exercise of due diligence;

20         creating s. 671.21, F.S.; providing that

21         whenever the code creates certain presumptions,

22         the trier of fact must find the existence of

23         the fact presumed unless evidence is introduced

24         which supports a finding of its nonexistence;

25         creating s. 671.211, F.S.; providing in what

26         instances a person gives value for rights;

27         creating s. 671.212, F.S.; providing that the

28         code modifies, limits, and supersedes certain

29         provisions of the federal Electronic Signatures

30         in Global and National Commerce Act; creating

31         s. 671.213, F.S.; authorizing the subordination


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 1         of certain obligations; authorizing the

 2         registry to use the fees collected to fund its

 3         operations; amending s. 679.525, F.S.; deleting

 4         the filing fees for electronically filing a

 5         financing statement or an amendment thereto;

 6         amending ss. 559.9232, 563.022, 668.50,

 7         670.106, 670.204, 675.102, 680.518, 680.519,

 8         680.527, and 680.528, F.S.; conforming

 9         cross-references; amending s. 713.901, F.S.;

10         specifying fees under the Florida Uniform

11         Federal Lien Registration Act previously

12         provided through cross-reference; deleting a

13         cross-reference to conform to changes made by

14         the act; providing an effective date.

15  

16  Be It Enacted by the Legislature of the State of Florida:

17  

18         Section 1.  Section 608.406, Florida Statutes, is

19  amended to read:

20         608.406  Limited liability company name.--

21         (1)  A limited liability company name:

22         (a)  Must contain the words "limited liability company"

23  or "limited company," or the abbreviation abbreviations

24  "L.L.C." or "L.C.," or the designation designations "LLC"  or

25  "LC" as the last words of the name of every limited liability

26  company formed under the provisions of this chapter. The word

27  "limited" may be abbreviated as "Ltd.," and the word "company"

28  may be abbreviated as "Co." Omission of the words "limited

29  liability company" or "limited company," the abbreviation

30  abbreviations "L.L.C." or "L.C. ," or the designation

31  designations "LLC" or "LC" in the use of the name of the


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 1  limited liability company shall render any person who

 2  knowingly participates in the omission, or knowingly

 3  acquiesces in the omission, liable for any indebtedness,

 4  damage, or liability caused by the omission.

 5         (b)  May not contain language stating or implying that

 6  the limited liability company is organized for a purpose other

 7  than that permitted in this chapter and its articles of

 8  organization.

 9         (c)  May not contain language stating or implying that

10  the limited liability company is connected with a state or

11  federal government agency or a corporation or other entity

12  chartered under the laws of the United States.

13         (2)  The name of the limited liability company must be

14  distinguishable on the records of the Division of Corporations

15  of the Department of State, except for fictitious name

16  registrations filed pursuant to s. 865.09 and general

17  partnership registrations filed pursuant to s. 620.8105;

18  however, a limited liability company may register under a name

19  that is not otherwise distinguishable on the records of the

20  Division of Corporations with written consent of the owner

21  entity provided the consent is filed with the Division of

22  Corporations at the time of registration of such name.

23         (3)(2)  The name of the limited liability company shall

24  be filed with the Department of State for public notice only

25  and shall not alone create any presumption of ownership beyond

26  that which is created under the common law. The Department of

27  State shall record the name without regard to any other name

28  recorded.

29         (4)  In the case of any limited liability company in

30  existence prior to July 1, 2007, and registered with the

31  Division of Corporations, the requirement in this section that


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 1  the name of the entity be distinguishable from the names of

 2  other entities and filings shall not apply except when the

 3  limited liability company files documents on or after July 1,

 4  2007, that would otherwise have affected its name.

 5         Section 2.  Paragraph (a) of subsection (1) of section

 6  608.407, Florida Statutes, is amended to read:

 7         608.407  Articles of organization.--

 8         (1)  In order to form a limited liability company,

 9  articles of organization of a limited liability company shall

10  be filed with the Department of State by one or more members

11  or authorized representatives of the limited liability

12  company. The articles of organization shall set forth:

13         (a)  The name of the limited liability company, which

14  must satisfy the requirements of s. 608.406.

15         Section 3.  Section 15.091, Florida Statutes, is

16  repealed.

17         Section 4.  Section 671.101, Florida Statutes, is

18  amended to read:

19         671.101  Short title; scope of chapter.--

20         (1)  Chapters 670-680 may be cited as the "Uniform

21  Commercial Code."

22         (2)  This chapter applies to a transaction to the

23  extent that it is governed by another chapter of this code and

24  may be cited as the "Uniform Commercial Code--General

25  Provisions."

26         Section 5.  Section 671.102, Florida Statutes, is

27  amended to read:

28         671.102  Purposes; rules of construction; variation by

29  agreement.--

30         (1)  This code shall be liberally construed and applied

31  to promote its underlying purposes and policies, which.


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 1         (2)  Underlying purposes and policies of this code are:

 2         (a)  To simplify, clarify, and modernize the law

 3  governing commercial transactions.;

 4         (b)  To permit the continued expansion of commercial

 5  practices through custom, usage, and agreement of the

 6  parties.;

 7         (c)  To make uniform the law among the various

 8  jurisdictions.

 9         (2)(a)(3)  Except as otherwise provided in this code,

10  the effect of provisions of this code may be varied by

11  agreement., except as otherwise provided in this code and

12  except that

13         (b)  The obligations of good faith, diligence,

14  reasonableness, and care prescribed by this code may not be

15  disclaimed by agreement, but the parties may by agreement

16  determine the standards by which the performance of such

17  obligations is to be measured if such standards are not

18  manifestly unreasonable. Whenever this code requires an action

19  to be taken within a reasonable time, a time that is not

20  manifestly unreasonable may be fixed by agreement.

21         (c)(4)  The presence in certain provisions of this code

22  of the words "unless otherwise agreed" or words of similar

23  import does not imply that the effect of other provisions may

24  not be varied by agreement under this subsection (3).

25         (3)(5)  In this code, unless the context otherwise

26  requires:

27         (a)  Words in the singular number include the plural,

28  and words in the plural include the singular.;

29         (b)  Gender-specific language includes the other gender

30  and neuter, and when the sense so indicates Words of either

31  the neuter gender also may refer to the other any gender.


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 1         Section 6.  Subsection (1) of section 671.106, Florida

 2  Statutes, is amended to read:

 3         671.106  Remedies to be liberally administered.--

 4         (1)  The remedies provided by this code must shall be

 5  liberally administered to the end that the aggrieved party may

 6  be put in as good a position as if the other party had fully

 7  performed, but neither consequential or special nor penal

 8  damages may be had except as specifically provided in this

 9  code or by other rule of law.

10         Section 7.  Section 671.107, Florida Statutes, is

11  amended to read:

12         671.107  Waiver or renunciation of claim or right after

13  breach.--A Any claim or right arising out of an alleged breach

14  can be discharged in whole or in part without consideration by

15  agreement of a written waiver or renunciation signed and

16  delivered by the aggrieved party in an authenticated record.

17         Section 8.  Section 671.201, Florida Statutes, is

18  amended to read:

19         671.201  General definitions.--Unless the context

20  otherwise requires, words or phrases defined in this section,

21  or in the additional definitions contained in other chapters

22  of this code which apply to particular chapters or parts

23  thereof, have the meanings stated. Subject to additional

24  definitions contained in other the subsequent chapters of this

25  code which apply which are applicable to particular specific

26  chapters or parts thereof, the term and unless the context

27  otherwise requires, in this code:

28         (1)  "Action," in the sense of a judicial proceeding,

29  includes recoupment, counterclaim, setoff, suit in equity, and

30  any other proceedings in which rights are determined.

31  


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 1         (2)  "Aggrieved party" means a party entitled to pursue

 2  resort to a remedy.

 3         (3)  "Agreement," as distinguished from "contract,"

 4  means the bargain of the parties in fact, as found in their

 5  language or inferred by implication from other circumstances,

 6  including course of dealing, or usage of trade, or course of

 7  performance as provided in this code (ss. 671.205 and

 8  672.208). Whether an agreement has legal consequences is

 9  determined by the provisions of this code, if applicable;

10  otherwise by the law of contracts (s. 671.103). (Compare

11  "contract.")

12         (4)  "Bank" means a any person engaged in the business

13  of banking and includes a savings bank, a savings and loan

14  association, a credit union, and a trust company.

15         (5)  "Bearer" means a the person in possession of a

16  negotiable an instrument, document of title, or certificated

17  security that is payable to bearer or indorsed in blank.

18         (6)  "Bill of lading" means a document evidencing the

19  receipt of goods for shipment issued by a person engaged in

20  the business of transporting or forwarding goods, and includes

21  an airbill. "Airbill" means a document serving for air

22  transportation as a bill of lading does for marine or rail

23  transportation, and includes an air consignment note or air

24  waybill.

25         (7)  "Branch" includes a separately incorporated

26  foreign branch of a bank.

27         (8)  "Burden of establishing" a fact means the burden

28  of persuading the triers of fact that the existence of the

29  fact is more probable than its nonexistence.

30         (9)  "Buyer in ordinary course of business" means a

31  person who, in ordinary course, buys goods in good faith,


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 1  without knowledge that the sale violates the rights of another

 2  person in the goods, and in the ordinary course from a person,

 3  other than a pawnbroker, in the business of selling goods of

 4  that kind. A person buys goods in the ordinary course if the

 5  sale to the person comports with the usual or customary

 6  practices in the kind of business in which the seller is

 7  engaged or with the seller's own usual or customary practices.

 8  A person who sells oil, gas, or other minerals at the wellhead

 9  or minehead is a person in the business of selling goods of

10  that kind. A buyer in the ordinary course of business may buy

11  for cash, by exchange of other property, or on secured or

12  unsecured credit and may acquire goods or documents of title

13  under a preexisting contract for sale. Only a buyer who takes

14  possession of the goods or has a right to recover the goods

15  from the seller under chapter 672 may be a buyer in the

16  ordinary course of business. "Buyer in ordinary course of

17  business" does not include a person who acquires goods in a

18  transfer in bulk or as security for or in total or partial

19  satisfaction of a money debt is not a buyer in the ordinary

20  course of business.

21         (10)  A term or clause is "Conspicuous," with reference

22  to a term, means when it is so written, displayed, or

23  presented that a reasonable person against whom it is to

24  operate ought to have noticed it. Whether a term is

25  "conspicuous" is a decision for the court. Conspicuous terms

26  include the following:

27         (a)  A printed heading in capitals in a size equal to

28  or larger than that of the surrounding text or in a (as:

29  NONNEGOTIABLE BILL OF LADING) is conspicuous. Language in the

30  body of a form is conspicuous if it is in larger or other

31  


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 1  contrasting type, font, or color in contrast to the

 2  surrounding text of the same or lesser size.

 3         (b)  Language in the body of a record or display in

 4  type larger than that of the surrounding text; in a type,

 5  font, or color in contrast to the surrounding text of the same

 6  size; or set off from surrounding text of the same size by

 7  symbols or other marks that call attention to the language.

 8  But in a telegram any stated term is conspicuous. Whether a

 9  term or clause is conspicuous or not is for decision by the

10  court.

11         (11)  "Consumer" means an individual who enters into a

12  transaction primarily for personal, family, or household

13  purposes.

14         (12)(11)  "Contract," as distinguished from

15  "agreement," means the total legal obligation that which

16  results from the parties' agreement as determined affected by

17  this code and as supplemented by any other applicable laws

18  rules of law. (Compare "agreement.")

19         (13)(12)  "Creditor" includes a general creditor, a

20  secured creditor, a lien creditor, and any representative of

21  creditors, including an assignee for the benefit of creditors,

22  a trustee in bankruptcy, a receiver in equity, and an executor

23  or administrator of an insolvent debtor's or assignor's

24  estate.

25         (14)(13)  "Defendant" includes a person in the position

26  of defendant in a cross-action or counterclaim, cross-claim,

27  or third-party claim.

28         (15)(14)  "Delivery," with respect to an instrument

29  instruments, document documents of title, or chattel paper, or

30  certificated securities means voluntary transfer of

31  possession.


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 1         (16)(15)  "Document of title" includes bill of lading,

 2  dock warrant, dock receipt, warehouse receipt or order for the

 3  delivery of goods, and also any other document that which in

 4  the regular course of business or financing is treated as

 5  adequately evidencing that the person in possession of it is

 6  entitled to receive, hold, and dispose of the document and the

 7  goods it covers. To be a document of title, a document must

 8  purport to be issued by or addressed to a bailee and purport

 9  to cover goods in the bailee's possession which are either

10  identified or are fungible portions of an identified mass.

11         (17)(16)  "Fault" means a default, breach, or wrongful

12  act or, omission or breach.

13         (18)(17)  "Fungible goods" with respect to goods or

14  securities means:

15         (a)  Goods or securities of which any unit is, by

16  nature or usage of trade, is the equivalent of any other like

17  unit; or.

18         (b)  Goods which are not fungible shall be deemed

19  fungible for the purposes of this code to the extent that, by

20  under a particular agreement, or document unlike units are

21  treated as equivalents.

22         (19)(18)  "Genuine" means free of forgery or

23  counterfeiting.

24         (20)(19)  "Good faith," except as otherwise provided in

25  this code, means honesty in fact and in the observance of

26  reasonable commercial standards of fair dealing conduct or

27  transaction concerned.

28         (21)(20)  "Holder," with respect to a negotiable

29  instrument, means:

30         (a)  The person in possession of a negotiable if the

31  instrument that is payable either to bearer or, in the case of


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 1  an instrument payable to an identified person that is, if the

 2  identified person is in possession; or. "Holder," with respect

 3  to a document of title, means

 4         (b)  The person in possession of a document of title if

 5  the goods are deliverable either to bearer or to the order of

 6  the person in possession.

 7         (21)  To "honor" is to pay or to accept and pay, or

 8  where a credit so engages to purchase or discount a draft

 9  complying with the terms of the credit.

10         (22)  "Insolvency proceeding proceedings" includes an

11  any assignment for the benefit of creditors or other

12  proceeding proceedings intended to liquidate or rehabilitate

13  the estate of the person involved.

14         (23)  A person is "Insolvent" means:

15         (a)  Having who either has ceased to pay his or her

16  debts in the ordinary course of business other than as a

17  result of a bona fide dispute;

18         (b)  Being unable to or cannot pay his or her debts as

19  they become due; or

20         (c)  Being is insolvent within the meaning of the

21  Federal Bankruptcy Law.

22         (24)  "Money" means a medium of exchange currently

23  authorized or adopted by a domestic or foreign government. The

24  term and includes a monetary unit of account established by an

25  intergovernmental organization or by agreement between two or

26  more countries nations.

27         (25)  A person has "notice" of a fact when

28         (a)  He or she has actual knowledge of it; or

29         (b)  He or she has received a notice or notification of

30  it; or

31  


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 1         (c)  From all the facts and circumstances known to the

 2  person at the time in question he or she has reason to know

 3  that it exists.

 4  

 5  A person "knows" or has "knowledge" of a fact when he or she

 6  has actual knowledge of it. "Discover" or "learn" or a word or

 7  phrase of similar import refers to knowledge rather than to

 8  reason to know. The time and circumstances under which a

 9  notice or notification may cease to be effective are not

10  determined by this code.

11         (26)  A person "notifies" or "gives" a notice or

12  notification to another by taking such steps as may be

13  reasonably required to inform the other in ordinary course

14  whether or not such other actually comes to know of it. A

15  person "receives" a notice or notification when

16         (a)  It comes to his or her attention; or

17         (b)  It is duly delivered at the place of business

18  through which the contract was made or at any other place held

19  out by the person as the place for receipt of such

20  communications.

21         (27)  Notice, knowledge or a notice or notification

22  received by an organization is effective for a particular

23  transaction from the time when it is brought to the attention

24  of the individual conducting that transaction, and in any

25  event from the time when it would have been brought to his or

26  her attention if the organization had exercised due diligence.

27  An organization exercises due diligence if it maintains

28  reasonable routines for communicating significant information

29  to the person conducting the transaction and there is

30  reasonable compliance with the routines. Due diligence does

31  not require an individual acting for the organization to


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 1  communicate information unless such communication is part of

 2  his or her regular duties or unless the individual has reason

 3  to know of the transaction and that the transaction would be

 4  materially affected by the information.

 5         (25)(28)  "Organization" means a person other than an

 6  individual includes a corporation, government or governmental

 7  subdivision or agency, business trust, estate, trust,

 8  partnership or association, two or more persons having a joint

 9  or common interest, or any other legal or commercial entity.

10         (26)(29)  "Party," as distinguished distinct from

11  "third party," means a person who has engaged in a transaction

12  or made an agreement subject to within this code.

13         (27)(30)  "Person" means includes an individual;

14  corporation; business trust; estate; trust; partnership;

15  limited liability company; association; joint venture;

16  government; governmental subdivision, agency, or

17  instrumentality; public corporation; or any other legal or

18  commercial entity or an organization (see s. 671.102).

19         (28)  "Present value" means the amount as of a date

20  certain of one or more sums payable in the future, discounted

21  to the date certain by use of either an interest rate

22  specified by the parties if that rate is not manifestly

23  unreasonable at the time the transaction is entered into or,

24  if an interest rate is not so specified, a commercially

25  reasonable rate that takes into account the facts and

26  circumstances at the time the transaction is entered into.

27         (31)  "Presumption" or "presumed" means that the trier

28  of fact must find the existence of the fact presumed unless

29  and until evidence is introduced which would support a finding

30  of its nonexistence.

31  


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 1         (29)(32)  "Purchase" means includes taking by sale,

 2  lease, discount, negotiation, mortgage, pledge, lien, security

 3  interest, issue or reissue, gift, or any other voluntary

 4  transaction creating an interest in property.

 5         (30)(33)  "Purchaser" means a person who takes by

 6  purchase.

 7         (31)  "Record" means information that is inscribed on a

 8  tangible medium or that is stored in an electronic or other

 9  medium and is retrievable in perceivable form.

10         (32)(34)  "Remedy" means any remedial right to which an

11  aggrieved party is entitled with or without resort to a

12  tribunal.

13         (33)(35)  "Representative" means a person empowered to

14  act for another, including includes an agent, an officer of a

15  corporation or association, and a trustee, executor, or

16  administrator of an estate, or any other person empowered to

17  act for another.

18         (34)(36)  "Right Rights" includes "remedy" remedies.

19         (35)(37)  "Security interest" means an interest in

20  personal property or fixtures which secures payment or

21  performance of an obligation. "Security interest" The term

22  also includes any interest of a consignor and a buyer of

23  accounts, chattel paper, a payment intangible, or a promissory

24  note in a transaction that which is subject to chapter 679.

25  "Security interest" does not include the special property

26  interest of a buyer of goods on identification of those goods

27  to a contract for sale under s. 672.401 is not a security

28  interest, but a buyer may also acquire a security interest by

29  complying with chapter 679. Except as otherwise provided in s.

30  672.505, the right of a seller or lessor of goods under

31  chapter 672 or chapter 680 to retain or acquire possession of


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 1  the goods is not a security interest, but a seller or lessor

 2  may also acquire a security interest by complying with chapter

 3  679. The retention or reservation of title by a seller of

 4  goods, notwithstanding shipment or delivery to the buyer under

 5  (s. 672.401), is limited in effect to a reservation of a

 6  security interest. Whether a transaction in the form of a

 7  lease creates a lease or security interest is determined by

 8  the facts of each case; however:

 9         (a)  A transaction in the form of a lease creates a

10  security interest if the consideration that the lessee is to

11  pay the lessor for the right to possession and use of the

12  goods is an obligation for the term of the lease not subject

13  to termination by the lessee, and:;

14         1.  The original term of the lease is equal to or

15  greater than the remaining economic life of the goods;

16         2.  The lessee is bound to renew the lease for the

17  remaining economic life of the goods or is bound to become the

18  owner of the goods;

19         3.  The lessee has an option to renew the lease for the

20  remaining economic life of the goods for no additional

21  consideration or nominal additional consideration upon

22  compliance with the lease agreement; or

23         4.  The lessee has an option to become the owner of the

24  goods for no additional consideration or nominal additional

25  consideration upon compliance with the lease agreement.

26         (b)  A transaction does not create a security interest

27  merely because it provides that:

28         1.  The present value of the consideration the lessee

29  is obligated to pay the lessor for the right to possession and

30  use of the goods is substantially equal to or is greater than

31  


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 1  the fair market value of the goods at the time the lease is

 2  entered into;

 3         2.  The lessee assumes the risk of loss of the goods or

 4  agrees to pay taxes; insurance; filing, recording, or

 5  registration fees; or service or maintenance costs with

 6  respect to the goods;

 7         3.  The lessee agrees to pay, with respect to the

 8  goods, taxes; insurance; filing, recording, or registration

 9  fees; or service or maintenance costs;

10         4.3.  The lessee has an option to renew the lease or to

11  become the owner of the goods;

12         5.4.  The lessee has an option to renew the lease for a

13  fixed rent that is equal to or greater than the reasonably

14  predictable fair market rent for the use of the goods for the

15  term of the renewal at the time the option is to be performed;

16  or

17         6.5.  The lessee has an option to become the owner of

18  the goods for a fixed price that is equal to or greater than

19  the reasonably predictable fair market value of the goods at

20  the time the option is to be performed.

21         (c)  For purposes of this subsection:

22         1.  Additional consideration is not nominal if it is

23  less than the lessee's reasonably predictable cost of

24  performing under the lease agreement if the option is not

25  exercised. Additional consideration is not nominal if:,

26         1.  When the option to renew the lease is granted to

27  the lessee, the rent is stated to be the fair market rent for

28  the use of the goods for the term of the renewal determined at

29  the time the option is to be performed; or if,

30         2.  When the option to become the owner of the goods is

31  granted to the lessee, the price is stated to be the fair


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 1  market value of the goods determined at the time the option is

 2  to be performed. Additional consideration is nominal if it is

 3  less than the lessee's reasonably predictable cost of

 4  performing under the lease agreement if the option is not

 5  exercised.

 6         (d)2.  The "Reasonably predictable" and "remaining

 7  economic life of the goods" and "reasonably predictable" fair

 8  market rent, fair market value, or cost of performing under

 9  the lease agreement must are to be determined with reference

10  to the facts and circumstances at the time the transaction is

11  entered into.

12         3.  "Present value" means the amount as of a date

13  certain of one or more sums payable in the future, discounted

14  to the date certain. The discount is determined by the

15  interest rate specified by the parties if the rate is not

16  manifestly unreasonable at the time the transaction is entered

17  into; otherwise, the discount is determined by a commercially

18  reasonable rate that takes into account the facts and

19  circumstances of each case at the time the transaction was

20  entered into.

21         (36)(38)  "Send," in connection with a any writing,

22  record, or notice, means:

23         (a)  To deposit in the mail or deliver for transmission

24  by any other usual means of communication with postage or cost

25  of transmission provided for and properly addressed and, in

26  the case of an instrument, to an address specified thereon or

27  otherwise agreed, or, if there be none, to any address

28  reasonable under the circumstances; or.

29         (b)  In any other way to cause to be received The

30  receipt of any record writing or notice within the time at

31  


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 1  which it would have arrived if properly sent has the effect of

 2  a proper sending.

 3         (37)(39)  "Signed" means bearing includes any symbol

 4  executed or adopted by a party with present intention to adopt

 5  or accept authenticate a writing.

 6         (38)  "State" means a state of the United States, the

 7  District of Columbia, Puerto Rico, the United States Virgin

 8  Islands, or any territory or insular possession subject to the

 9  jurisdiction of the United States.

10         (39)(40)  "Surety" includes a guarantor or other

11  secondary obligor.

12         (41)  "Telegram" includes a message transmitted by

13  radio, teletype, cable, any mechanical method of transmission,

14  or the like.

15         (40)(42)  "Term" means a that portion of an agreement

16  which relates to a particular matter.

17         (41)(43)  "Unauthorized" signature" means a signature

18  one made without actual, implied, or apparent authority. The

19  term and includes a forgery.

20         (44)  "Value." Except as otherwise provided with

21  respect to negotiable instruments and bank collections (ss.

22  673.3031, 674.2101, and 674.2111), a person gives value for

23  rights if he or she acquires them:

24         (a)  In return for a binding commitment to extend

25  credit or for the extension of immediately available credit

26  whether or not drawn upon and whether or not a charge-back is

27  provided for in the event of difficulties in collection;

28         (b)  As security for or in total or partial

29  satisfaction of a preexisting claim;

30         (c)  By accepting delivery pursuant to a preexisting

31  contract for purchase; or


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 1         (d)  Generally, in return for any consideration

 2  sufficient to support a simple contract.

 3         (42)(45)  "Warehouse receipt" means a written receipt

 4  or an electronic notification of receipt issued by a person

 5  engaged in the business of storing goods for hire.

 6         (43)(46)  "Written" or "Writing" includes printing,

 7  typewriting, or any other intentional reduction to tangible

 8  form. "Written" has a corresponding meaning.

 9         Section 9.  Section 671.202, Florida Statutes, is

10  amended to read:

11         671.202  Prima facie evidence by third-party

12  documents.--A document in due form purporting to be a bill of

13  lading, policy or certificate of insurance, official weigher's

14  or inspector's certificate, consular invoice, or any other

15  document authorized or required by the contract to be issued

16  by a third party is shall be prima facie evidence of its own

17  authenticity and genuineness and of the facts stated in the

18  document by the third party.

19         Section 10.  Section 671.203, Florida Statutes, is

20  amended to read:

21         671.203  Obligation of good faith.--Every contract or

22  duty within this code imposes an obligation of good faith in

23  its performance and or enforcement.

24         Section 11.  Section 671.204, Florida Statutes, is

25  amended to read:

26         671.204  Actions taken within Time; reasonable time;

27  "seasonably."--

28         (1)  Whether a time for taking an action required by

29  Whenever this code is requires any action to be taken within a

30  reasonable time, any time which is not manifestly unreasonable

31  may be fixed by agreement.


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 1         (2)  What is a reasonable time for taking any action

 2  depends on the nature, purpose, and circumstances of the such

 3  action.

 4         (2)(3)  An action is taken "seasonably" if when it is

 5  taken at or within the time agreed or, if no time is agreed,

 6  at or within a reasonable time.

 7         Section 12.  Section 671.205, Florida Statutes, is

 8  amended to read:

 9         671.205  Course of performance; course of dealing; and

10  usage of trade.--

11         (1)  A "course of performance" is a sequence of conduct

12  between the parties to a particular transaction that exists

13  if:

14         (a)  The agreement of the parties with respect to the

15  transaction involves repeated occasions for performance by a

16  party; and

17         (b)  The other party, with knowledge of the nature of

18  the performance and opportunity for objection to it, accepts

19  the performance or acquiesces in it without objection.

20         (2)(1)  A "course of dealing" is a sequence of previous

21  conduct concerning previous transactions between the parties

22  to a particular transaction which is fairly to be regarded as

23  establishing a common basis of understanding for interpreting

24  their expressions and other conduct.

25         (3)(2)  A "usage of trade" is any practice or method of

26  dealing having such regularity of observance in a place,

27  vocation, or trade as to justify an expectation that it will

28  be observed with respect to the transaction in question. The

29  existence and scope of such a usage are to be proved as facts.

30  If it is established that such a usage is embodied in a

31  written trade code or similar record, writing the


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 1  interpretation of the record writing is a question of law for

 2  the court.

 3         (4)(3)  A course of performance or a course of dealing

 4  between the parties or and any usage of trade in the vocation

 5  or trade in which they are engaged or of which they are or

 6  should be aware is relevant in ascertaining the give

 7  particular meaning of the parties' to and supplement or

 8  qualify terms of an agreement, may give particular meaning to

 9  specific terms of the agreement, and may supplement or qualify

10  the terms of the agreement. A usage of trade applicable in the

11  place in which part of the performance under the agreement is

12  to occur may be so utilized as to that part of the

13  performance.

14         (5)(4)  Except as otherwise provided in subsection (6),

15  the express terms of an agreement and any an applicable course

16  of performance, course of dealing, or usage of trade must

17  shall be construed whenever wherever reasonable as consistent

18  with each other. If; but when such a construction is

19  unreasonable:

20         (a)  Express terms prevail over control both course of

21  performance, course of dealing, and usage of trade;

22         (b)  Course of performance prevails over course of

23  dealing and usage of trade; and

24         (c)  Course of dealing prevails over controls usage of

25  trade.

26         (6)  A course of performance is relevant to show a

27  waiver or modification of any term inconsistent with the

28  course of performance.

29         (5)  An applicable usage of trade in the place where

30  any part of performance is to occur shall be used in

31  interpreting the agreement as to that part of the performance.


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 1         (7)(6)  Evidence of a relevant usage of trade offered

 2  by one party is not admissible unless that party and until he

 3  or she has given the other party such notice that as the court

 4  finds sufficient to prevent unfair surprise to the other party

 5  latter.

 6         Section 13.  Section 671.206, Florida Statutes, is

 7  repealed.

 8         Section 14.  Section 671.208, Florida Statutes, is

 9  amended to read:

10         671.208  Option to accelerate at will.--A term

11  providing that one party or the party's successor in interest

12  may accelerate payment or performance or require collateral or

13  additional collateral "at will" or "when she or he deems

14  herself or himself insecure" or in words of similar import

15  must shall be construed to mean that she or he has shall have

16  power to do so only if she or he in good faith believes that

17  the prospect of payment or performance is impaired. The burden

18  of establishing lack of good faith is on the party against

19  whom the power has been exercised.

20         Section 15.  Section 671.209, Florida Statutes, is

21  created to read:

22         671.209  Notice; knowledge.--

23         (1)  Subject to subsection (6), a person has "notice"

24  of a fact if the person:

25         (a)  Has actual knowledge of it;

26         (b)  Has received a notice or notification of it; or

27         (c)  From all the facts and circumstances known to the

28  person at the time in question, has reason to know that it

29  exists.

30         (2)  "Knowledge" means actual knowledge. "Knows" has a

31  corresponding meaning.


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 1         (3)  "Discover," "learn," or words of similar import

 2  refer to knowledge rather than to reason to know.

 3         (4)  A person "notifies" or "gives a notice or

 4  notification to" another person by taking such steps as may be

 5  reasonably required to inform the other person in ordinary

 6  course, regardless of whether the other person actually comes

 7  to know of it.

 8         (5)  Subject to subsection (6), a person "receives" a

 9  notice or notification when:

10         (a)  It comes to that person's attention; or

11         (b)  It is duly delivered in a form reasonable under

12  the circumstances at the place of business through which the

13  contract was made or at another location held out by that

14  person as the place for receipt of such communications.

15         (6)  Notice, knowledge, or a notice or notification

16  received by an organization is effective for a particular

17  transaction from the time it is brought to the attention of

18  the person conducting that transaction and, in any event, from

19  the time it would have been brought to the person's attention

20  if the organization had exercised due diligence. An

21  organization exercises due diligence if it maintains

22  reasonable routines for communicating significant information

23  to the person conducting the transaction and there is

24  reasonable compliance with the routines. Due diligence does

25  not require an individual acting for the organization to

26  communicate information unless the communication is part of

27  the individual's regular duties or the individual has reason

28  to know of the transaction and that the transaction would be

29  materially affected by the information.

30         Section 16.  Section 671.21, Florida Statutes, is

31  created to read:


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 1         671.21  Presumptions.--Whenever this code creates a

 2  "presumption" with respect to a fact or provides that a fact

 3  is "presumed," the trier of fact must find the existence of

 4  the fact presumed unless evidence is introduced which supports

 5  a finding of its nonexistence.

 6         Section 17.  Section 671.211, Florida Statutes, is

 7  created to read:

 8         671.211  Value.--Except as otherwise provided with

 9  respect to negotiable instruments and bank collections as

10  provided in ss. 673.3031, 674.2101, and 674.2111, a person

11  gives value for rights if the person acquires them:

12         (1)  In return for a binding commitment to extend

13  credit or for the extension of immediately available credit

14  whether or not drawn upon and whether or not a charge-back is

15  provided for in the event of difficulties in collection;

16         (2)  As security for, or in total or partial

17  satisfaction of, a preexisting claim;

18         (3)  By accepting delivery under a preexisting contract

19  for purchase; or

20         (4)  In return for any consideration sufficient to

21  support a simple contract.

22         Section 18.  Section 671.212, Florida Statutes, is

23  created to read:

24         671.212  Relation to Electronic Signatures in Global

25  and National Commerce Act.--This code modifies, limits, and

26  supersedes the federal Electronic Signatures in Global and

27  National Commerce Act, 15 U.S.C. ss. 7001 et seq., except that

28  nothing in this code modifies, limits, or supersedes 15 U.S.C.

29  s. 7001(c) or authorizes electronic delivery of any of the

30  notices described in 15 U.S.C. s. 7003(b).

31  


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 1         Section 19.  Section 671.213, Florida Statutes, is

 2  created to read:

 3         671.213  Subordinated obligations.--An obligation may

 4  be issued as subordinated to performance of another obligation

 5  of the person obligated, or a creditor may subordinate its

 6  right to performance of an obligation by agreement with either

 7  the person obligated or another creditor of the person

 8  obligated. Subordination does not create a security interest

 9  as against either the common debtor or a subordinated

10  creditor.

11         Section 20.  Subsection (2) of section 559.9232,

12  Florida Statutes, is amended to read:

13         559.9232  Definitions; exclusion of rental-purchase

14  agreements from certain regulations.--

15         (2)  A rental-purchase agreement that complies with

16  this act shall not be construed to be, nor be governed by, any

17  of the following:

18         (a)  A lease or agreement that which constitutes a

19  credit sale as defined in 12 C.F.R. s. 226.2(a)(16) and s.

20  1602(g) of the federal Truth in Lending Act, 15 U.S.C. ss.

21  1601 et seq.;

22         (b)  A lease that which constitutes a "consumer lease"

23  as defined in 12 C.F.R. s. 213.2(a)(6);

24         (c)  Any lease for agricultural, business, or

25  commercial purposes;

26         (d)  Any lease made to an organization;

27         (e)  A lease or agreement that which constitutes a

28  "retail installment contract" or "retail installment

29  transaction" as those terms are defined in s. 520.31; or

30         (f)  A security interest as defined in s. 671.201(35)

31  s. 671.201(37).


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 1         Section 21.  Paragraph (g) of subsection (2) of section

 2  563.022, Florida Statutes, is amended to read:

 3         563.022  Relations between beer distributors and

 4  manufacturers.--

 5         (2)  DEFINITIONS.--In construing this section, unless

 6  the context otherwise requires, the word, phrase, or term:

 7         (g)  "Good faith" means honesty in fact in the conduct

 8  or transaction concerned as defined and interpreted under s.

 9  671.201(20) s. 671.201(19).

10         Section 22.  Paragraph (b) of subsection (3) and

11  paragraph (d) of subsection (16) of section 668.50, Florida

12  Statutes, are amended to read:

13         668.50  Uniform Electronic Transaction Act.--

14         (3)  SCOPE.--

15         (b)  This section does not apply to a transaction to

16  the extent the transaction is governed by:

17         1.  A provision of law governing the creation and

18  execution of wills, codicils, or testamentary trusts;

19         2.  The Uniform Commercial Code other than s. ss.

20  671.107 and 671.206 and chapters 672 and 680;

21         3.  The Uniform Computer Information Transactions Act;

22  or

23         4.  Rules relating to judicial procedure.

24         (16)  TRANSFERABLE RECORDS.--

25         (d)  Except as otherwise agreed, a person having

26  control of a transferable record is the holder, as defined in

27  s. 671.201(21) s. 671.201(20), of the transferable record and

28  has the same rights and defenses as a holder of an equivalent

29  record or writing under the Uniform Commercial Code,

30  including, if the applicable statutory requirements under s.

31  673.3021, s. 677.501, or s. 679.308 are satisfied, the rights


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 1  and defenses of a holder in due course, a holder to which a

 2  negotiable document of title has been duly negotiated, or a

 3  purchaser, respectively. Delivery, possession, and indorsement

 4  are not required to obtain or exercise any of the rights under

 5  this paragraph.

 6         Section 23.  Subsection (1) of section 670.106, Florida

 7  Statutes, is amended to read:

 8         670.106  Time payment order is received.--

 9         (1)  The time of receipt of a payment order or

10  communication canceling or amending a payment order is

11  determined by the rules applicable to receipt of a notice

12  stated in s. 671.209 s. 671.201(27). A receiving bank may fix

13  a cut-off time or times on a funds-transfer business day for

14  the receipt and processing of payment orders and

15  communications canceling or amending payment orders. Different

16  cut-off times may apply to payment orders, cancellations, or

17  amendments or to different categories of payment orders,

18  cancellations, or amendments. A cut-off time may apply to

19  senders generally, or different cut-off times may apply to

20  different senders or categories of payment orders. If a

21  payment order or communication canceling or amending a payment

22  order is received after the close of a funds-transfer business

23  day or after the appropriate cut-off time on a funds-transfer

24  business day, the receiving bank may treat the payment order

25  or communication as received at the opening of the next

26  funds-transfer business day.

27         Section 24.  Subsection (2) of section 670.204, Florida

28  Statutes, is amended to read:

29         670.204  Refund of payment and duty of customer to

30  report with respect to unauthorized payment order.--

31  


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 1         (2)  Reasonable time under subsection (1) may be fixed

 2  by agreement as stated in s. 671.204(1), but the obligation of

 3  a receiving bank to refund payment as stated in subsection (1)

 4  may not otherwise be varied by agreement.

 5         Section 25.  Subsection (3) of section 675.102, Florida

 6  Statutes, is amended to read:

 7         675.102  Scope.--

 8         (3)  With the exception of this subsection, subsections

 9  (1) and (4), ss. 675.103(1)(i) and (j), 675.106(4), and

10  675.114(4), and except to the extent prohibited in ss.

11  671.102(2) ss. 671.102(3) and 675.117(4), the effect of this

12  chapter may be varied by agreement or by a provision stated or

13  incorporated by reference in an undertaking. A term in an

14  agreement or undertaking generally excusing liability or

15  generally limiting remedies for failure to perform obligations

16  is not sufficient to vary obligations prescribed by this

17  chapter.

18         Section 26.  Subsection (1) of section 679.525, Florida

19  Statutes, is amended to read:

20         679.525  Processing fees.--

21         (1)  Except as otherwise provided in subsection (3),

22  the nonrefundable processing fee for filing and indexing a

23  record under this part, other than an initial financing

24  statement of the kind described in s. 679.5021(3), is:

25         (a)  For filing an initial financing statement, $25 for

26  the first page, which shall include the cost of filing a

27  termination statement for the financing statement;

28         (b)  For filing an amendment, $12 for the first page;

29         (c)  For indexing by additional debtor, secured party,

30  or assignee, $3 per additional name indexed;

31         (d)  For use of a nonapproved form, $5;


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 1         (e)  For each additional page attached to a record, $3;

 2         (f)  For filing a financing statement communicated by

 3  an electronic filing process authorized by the filing office,

 4  $15 with no additional fees for multiple names or attached

 5  pages;

 6         (g)  For filing an amendment communicated by an

 7  electronic filing process authorized by the filing office, $5

 8  with no additional fees for multiple names or attached pages;

 9         (f)(h)  For a certified copy of a financing statement

10  and any and all associated amendments, $30; and

11         (g)(i)  For a photocopy of a filed record, $1 per page.

12         Section 27.  Subsection (2) of section 680.518, Florida

13  Statutes, is amended to read:

14         680.518  Cover; substitute goods.--

15         (2)  Except as otherwise provided with respect to

16  damages liquidated in the lease agreement (s. 680.504) or

17  otherwise determined pursuant to agreement of the parties (ss.

18  671.102(2) ss. 671.102(3) and 680.503), if a lessee's cover is

19  by lease agreement substantially similar to the original lease

20  agreement and the new lease agreement is made in good faith

21  and in a commercially reasonable manner, the lessee may

22  recover from the lessor as damages:

23         (a)  The present value, as of the date of the

24  commencement of the term of the new lease agreement, of the

25  rent under the new lease agreement and applicable to that

26  period of the new lease term which is comparable to the then

27  remaining term of the original lease agreement minus the

28  present value as of the same date of the total rent for the

29  then remaining lease term of the original lease agreement; and

30         (b)  Any incidental or consequential damages, less

31  expenses saved in consequence of the lessor's default.


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 1         Section 28.  Subsection (1) of section 680.519, Florida

 2  Statutes, is amended to read:

 3         680.519  Lessee's damages for nondelivery, repudiation,

 4  default, or breach of warranty in regard to accepted goods.--

 5         (1)  Except as otherwise provided with respect to

 6  damages liquidated in the lease agreement (s. 680.504) or

 7  otherwise determined pursuant to agreement of the parties (ss.

 8  671.102(2) ss. 671.102(3) and 680.503), if a lessee elects not

 9  to cover or a lessee elects to cover and the cover is by lease

10  agreement, whether or not the lease agreement qualifies for

11  treatment under s. 680.518(2), or is by purchase or otherwise,

12  the measure of damages for nondelivery or repudiation by the

13  lessor or for rejection or revocation of acceptance by the

14  lessee is the present value, as of the date of the default, of

15  the then market rent minus the present value as of the same

16  date of the original rent, computed for the remaining lease

17  term of the original lease agreement, together with incidental

18  and consequential damages, less expenses saved in consequence

19  of the lessor's default.

20         Section 29.  Subsection (2) of section 680.527, Florida

21  Statutes, is amended to read:

22         680.527  Lessor's rights to dispose of goods.--

23         (2)  Except as otherwise provided with respect to

24  damages liquidated in the lease agreement (s. 680.504) or

25  otherwise determined pursuant to agreement of the parties (ss.

26  671.102(2) ss. 671.102(3) and 680.503), if the disposition is

27  by lease agreement substantially similar to the original lease

28  agreement and the new lease agreement is made in good faith

29  and in a commercially reasonable manner, the lessor may

30  recover from the lessee as damages:

31  


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 1         (a)  Accrued and unpaid rent as of the date of the

 2  commencement of the term of the new lease agreement;

 3         (b)  The present value, as of the same date, of the

 4  commencement of the term of the new lease agreement of the

 5  total rent for the then remaining lease term of the original

 6  lease agreement minus the present value, as of the same date,

 7  of the rent under the new lease agreement applicable to that

 8  period of the new lease term which is comparable to the then

 9  remaining term of the original lease agreement; and

10         (c)  Any incidental damages allowed under s. 680.53,

11  less expenses saved in consequence of the lessee's default.

12         Section 30.  Subsection (1) of section 680.528, Florida

13  Statutes, is amended to read:

14         680.528  Lessor's damages for nonacceptance or

15  repudiation.--

16         (1)  Except as otherwise provided with respect to

17  damages liquidated in the lease agreement (s. 680.504) or

18  otherwise determined pursuant to agreement of the parties (ss.

19  671.102(2) ss. 671.102(3) and 580.503), if a lessor elects to

20  retain the goods or a lessor elects to dispose of the goods

21  and the disposition is by lease agreement that for any reason

22  does not qualify for treatment under s. 680.527(2), or is by

23  sale or otherwise, the lessor may recover from the lessee as

24  damages a default of the type described in s. 680.523(1) or

25  (3)(a), or if agreed, for other default of the lessee:

26         (a)  Accrued and unpaid rent as of the date of default

27  if the lessee has never taken possession of the goods, or, if

28  the lessee has taken possession of the goods, as of the date

29  the lessor repossesses the goods or an earlier date on which

30  the lessee makes a tender of the goods to the lessor.

31  


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    2007 Legislature           CS for CS for SB 252, 1st Engrossed



 1         (b)  The present value as of the date determined under

 2  paragraph (a) of the total rent for the then remaining lease

 3  term of the original lease agreement minus the present value

 4  as of the same date of the market rent at the place where the

 5  goods were located on that date computed for the same lease

 6  term.

 7         (c)  Any incidental damages allowed under s. 680.53,

 8  less expenses saved in consequence of the lessee's default.

 9         Section 31.  Subsection (6) of section 713.901, Florida

10  Statutes, is amended to read:

11         713.901  Florida Uniform Federal Lien Registration

12  Act.--

13         (6)  FEES.--

14         (a)  The charges or fees of the Secretary of State,

15  with respect to a notice or certificate filed under this

16  section, or for searching records with respect thereto, are:

17         1.  For filing a notice of lien, which fee shall

18  include the cost of filing a certificate of release or

19  nonstatement for said notice of lien, $25.

20         2.  For indexing of each additional debtor or secured

21  party, $3.

22         3.  For each additional facing page attached to a

23  notice or certificate, $3.

24         4.  For use of a nonapproved form, $5.

25         5.  For filing a certificate of discharge or

26  subordination, $12.

27         6.  For filing a refiled notice of federal lien, $12.

28         7.  For filing any other document required or permitted

29  to be filed under this act, $12.

30         8.  For certifying any record, $10 shall be the same as

31  prescribed in s. 15.091.


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    ENROLLED

    2007 Legislature           CS for CS for SB 252, 1st Engrossed



 1         (b)  The charges or fees of the clerks of the circuit

 2  court with respect to a notice or certificate filed under this

 3  section shall be the same as prescribed in s. 28.24, relating

 4  to instruments recorded in the official records.

 5         Section 32.  This act shall take effect January 1,

 6  2008.

 7  

 8  

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10  

11  

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18  

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31  


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