CS/HB 1179

1
A bill to be entitled
2An act relating to motor vehicle lien enforcement;
3amending s. 30.231, F.S.; authorizing sheriffs expediting
4execution of a writ of replevin to recover certain
5additional expenses; amending s. 30.30, F.S.; requiring
6sheriffs to expedite certain writs of replevin within a
7specified amount of time; amending s. 78.065, F.S.;
8requiring courts to advance certain matters related to
9writs of replevin on the calendar; amending s. 78.068,
10F.S.; requiring courts to advance certain matters related
11to prejudgment writs of replevin on the calendar; amending
12s. 320.02, F.S.; authorizing the Department of Highway
13Safety and Motor Vehicles to withhold renewal of
14registration or replacement registration of specified
15motor vehicles under certain circumstances; creating s.
16320.1315, F.S.; requiring the department to implement a
17system to notify motor vehicle floor-plan financers when a
18motor vehicle is sold by a licensed dealer; providing
19system requirements; providing fees for users of the
20system and providing for disposition of the fees; creating
21s. 320.1316, F.S.; providing responsibilities of the
22department relating to the issuance of a license plate,
23revalidation sticker, or replacement license plate for
24certain vehicles; requiring the department to create a
25notice to surrender form; providing procedures for the
26dispute of a notice to surrender; amending s. 559.903,
27F.S.; defining the terms "lienholder" and "owner" for
28purposes of the Florida Motor Vehicle Repair Act; amending
29s. 559.917, F.S.; providing for a motor vehicle owner or
30lienholder to obtain the release of a motor vehicle from a
31motor vehicle repair shop; revising criteria required to
32establish an action to compel compliance; amending s.
33713.585, F.S.; modifying procedures for enforcing liens
34for labor or services by sale of a motor vehicle;
35providing an effective date.
36
37Be It Enacted by the Legislature of the State of Florida:
38
39     Section 1.  Subsection (2) of section 30.231, Florida
40Statutes, is amended to read:
41     30.231  Sheriffs' fees for service of summons, subpoenas,
42and executions.--
43     (2)  For levying on property and for the seizure of
44persons, the sheriff shall be allowed anticipated expenses
45necessary for the execution of the process directing such levy
46or seizure and for the safekeeping of property and persons in
47the custody of the sheriff. A reasonable cost deposit to cover
48said fees and expenses in connection with the requested services
49shall be deposited in advance, by the party requesting the
50service, with the officer requested to perform the service. If
51the sheriff is required to expedite execution of a writ of
52replevin pursuant to s. 30.30, the sheriff may recover
53additional expenses, including payment of off-duty deputy
54sheriffs, to expedite execution of the writ of replevin.
55     Section 2.  Subsection (1) of section 30.30, Florida
56Statutes, is amended to read:
57     30.30  Writs, process; duties and liabilities in levying.--
58     (1)  Whenever any writ, issuing out of any court of this
59state is, shall be delivered to a sheriff, commanding the
60sheriff to levy upon property specifically described therein, it
61shall be his or her duty to levy upon such property. If a party
62to whom a writ of replevin has been issued requests expedited
63service of the writ because the writ is upon property that
64includes motor vehicles, the sheriff shall expedite service no
65later than 3 days after such request, subject to payment of the
66additional expenses allowed by s. 30.231(2). If no property is
67specifically described in the writ, the sheriff he or she shall
68levy upon:
69     (a)  Any property in the possession of the defendant which
70is described in instructions for levy; and
71     (b)  Upon any property assessed against the defendant on
72the current tax rolls of the county or registered in his or her
73name under any law of the United States or of the state, upon
74the request of the plaintiff or the plaintiff's attorney listing
75such property in an instructions for levy. The instructions for
76levy shall state the balance due on such writ.
77     Section 3.  Subsection (1) of section 78.065, Florida
78Statutes, is amended to read:
79     78.065  Order to show cause; contents.--
80     (1)  The court without delay shall examine the complaint
81filed; and, if on the basis of the complaint and further showing
82of the plaintiff in support of it the court finds that the
83defendant has waived in accordance with s. 78.075 his or her
84right to be notified and heard, the court shall promptly issue
85an order authorizing the clerk of the court to issue a writ of
86replevin. The court shall advance the cause on the calendar.
87     Section 4.  Subsection (1) of section 78.068, Florida
88Statutes, is amended to read:
89     78.068  Prejudgment writ of replevin.--
90     (1)  A prejudgment writ of replevin may be issued and the
91property seized delivered forthwith to the petitioners when the
92nature of the claim and the amount thereof, if any, and the
93grounds relied upon for the issuance of the writ clearly appear
94from specific facts shown by the verified petition or by
95separate affidavit of the petitioner. The court shall advance
96the cause on the calendar.
97     Section 5.  Subsection (17) is added to section 320.02,
98Florida Statutes, to read:
99     320.02  Registration required; application for
100registration; forms.--
101     (17)  If any applicant's name appears on a list of persons
102who may not be issued a license plate, revalidation sticker, or
103replacement license plate after a written notice to surrender a
104vehicle was submitted to the department by a lienor as provided
105in s. 320.1316, the department may withhold renewal of
106registration or replacement registration of any motor vehicle
107owned by the applicant at the time the notice was submitted by
108the lienor. The lienor must maintain proof that written notice
109to surrender the vehicle was sent to each registered owner
110pursuant to s. 320.1316(1). A revalidation sticker or
111replacement license plate may not be issued until that person's
112name no longer appears on the list or until the person presents
113documentation from the lienor that the vehicle has been
114surrendered to the lienor. The department shall not withhold an
115initial registration in connection with an applicant's purchase
116or lease of a motor vehicle solely because the applicant's name
117is on the list created by s. 320.1316.
118     Section 6.  Section 320.1315, Florida Statutes, is created
119to read:
120     320.1315  Electronic notification to motor vehicle floor-
121plan financers upon issuance of temporary tags.--
122     (1)  By January 1, 2010, the Department of Highway Safety
123and Motor Vehicles shall implement a system that will provide
124daily electronic notification to motor vehicle floor-plan
125financers when a motor vehicle is sold by a licensed motor
126vehicle dealer.
127     (2)  The department may use its temporary tag database,
128permanent tag database, or any other electronic database
129available to expedite the notification process. The notification
130must include, at a minimum, the year, make, model, vehicle
131identification number, and dealer identification.
132     (3)(a)  To assist the department, each floor-plan financer
133shall notify the department of the motor vehicle dealer name and
134license number of the vehicle of which the floor-plan financer
135has perfected a security interest pursuant to chapter 679 or
136other applicable law.
137     (b)  A floor-plan financer may authorize a third-party
138entity to provide information to and receive information from
139the department.
140     (c)  Upon termination of a perfected security interest in
141the inventory of a secured debtor, a motor vehicle floor-plan
142financer shall notify the department of such termination and the
143department shall no longer be required to notify the financer of
144sales made by such dealer.
145     (4)  The department may charge an entity receiving the
146notification up to 25 cents per motor vehicle record, and such
147revenues shall be deposited into the Highway Safety Operating
148Trust Fund.
149     Section 7.  Section 320.1316, Florida Statutes, is created
150to read:
151     320.1316  Failure to surrender vehicle or vessel.--
152     (1)  Upon receipt from a lienor who claims a lien on a
153vehicle pursuant to s. 319.27 by the Department of Highway
154Safety and Motor Vehicles of written notice to surrender a
155vehicle or vessel that has been disposed of, concealed, removed,
156or destroyed by the lienee, the department shall place the name
157of the registered owner of that vehicle on the list of those
158persons who may not be issued a license plate, revalidation
159sticker, or replacement license plate for any motor vehicle
160under s. 320.03(8) owned by the lienee at the time the notice
161was given by the lienor. If the vehicle is owned jointly by more
162than one person, the name of each registered owner shall be
163placed on the list.
164     (2)  The notice to surrender the vehicle shall be submitted
165on forms developed by the department, which must include:
166     (a)  The name, address, and telephone number of the lienor.
167     (b)  The name of the registered owner of the vehicle and
168the address to which the lienor provided notice to surrender the
169vehicle to the registered owner.
170     (c)  A general description of the vehicle, including its
171color, make, model, body style, and year.
172     (d)  The vehicle identification number, registration
173license plate number, if known, or other identification number,
174as applicable.
175     (3)  The registered owner of the vehicle may dispute a
176notice to surrender the vehicle by notifying the department of
177the dispute in writing on forms provided by the department and
178presenting proof that the vehicle was sold to a motor vehicle
179dealer licensed under s. 320.27, a mobile home dealer licensed
180under s. 320.77, or a recreational vehicle dealer licensed under
181s. 320.771.
182     Section 8.  Section 559.903, Florida Statutes, is amended
183to read:
184     559.903  Definitions.--As used in this act:
185     (1)  "Customer" means the person who signs the written
186repair estimate or any other person whom the person who signs
187the written repair estimate designates on the written repair
188estimate as a person who may authorize repair work.
189     (2)  "Department" means the Department of Agriculture and
190Consumer Services.
191     (3)  "Employee" means an individual who is employed full
192time or part time by a motor vehicle repair shop and performs
193motor vehicle repair.
194     (4)  "Final estimate" means the last estimate approved by
195the customer either in writing or orally, as evidenced by the
196written repair estimate.
197     (5)  "Lienholder" means the person or entity that holds a
198lien or security interest on the motor vehicle and who perfected
199the lien or security interest on the motor vehicle pursuant to
200s. 319.27.
201     (6)(5)  "Motor vehicle" means any automobile, truck, bus,
202recreational vehicle, motorcycle, motor scooter, or other motor
203powered vehicle, but does not include trailers, mobile homes,
204travel trailers, trailer coaches without independent motive
205power, watercraft or aircraft, or special mobile equipment as
206defined in s. 316.003(48).
207     (7)(8)  "Motor vehicle repair" means all maintenance of and
208modifications and repairs to motor vehicles, and diagnostic work
209incident thereto, including, but not limited to, the rebuilding
210or restoring of rebuilt vehicles, body work, painting, warranty
211work, and other work customarily undertaken by motor vehicle
212repair shops.
213     (8)(6)  "Motor vehicle repair shop" means any person who,
214for compensation, engages or attempts to engage in the repair of
215motor vehicles owned by other persons and includes, but is not
216limited to: mobile motor vehicle repair shops, motor vehicle and
217recreational vehicle dealers; garages; service stations; self-
218employed individuals; truck stops; paint and body shops; brake,
219muffler, or transmission shops; and shops doing glass work. Any
220person who engages solely in the maintenance or repair of the
221coach portion of a recreational vehicle is not a motor vehicle
222repair shop.
223     (9)  "Owner" means the person or persons whose names appear
224on the title to the motor vehicle.
225     (10)(7)  "Place of business" means a physical place where
226the business of motor vehicle repair is conducted, including any
227vehicle constituting a mobile motor vehicle repair shop from
228which the business of motor vehicle repair is conducted.
229     Section 9.  Section 559.917, Florida Statutes, is amended
230to read:
231     559.917  Bond to release possessory lien claimed by motor
232vehicle repair shop.--
233     (1)(a)  Any customer may obtain the release of her or his
234motor vehicle from any lien claimed under part II of chapter 713
235by a motor vehicle repair shop for repair work performed under a
236written repair estimate by filing with the clerk of the court in
237the circuit in which the disputed transaction occurred a cash or
238surety bond, payable to the person claiming the lien and
239conditioned for the payment of any judgment which may be entered
240on the lien. The bond shall be in the amount stated on the
241invoice required by s. 559.911, plus accrued storage charges, if
242any, less any amount paid to the motor vehicle repair shop as
243indicated on the invoice. The customer shall not be required to
244institute judicial proceedings in order to post the bond in the
245registry of the court, nor shall the customer be required to use
246a particular form for posting the bond, unless the clerk shall
247provide such form to the customer for filing. Upon the posting
248of such bond, the clerk of the court shall automatically issue a
249certificate notifying the lienor of the posting of the bond and
250directing the lienor to release the customer's motor vehicle.
251     (b)  The lienor shall have 60 days to file suit to recover
252the bond. The prevailing party in that action may be entitled to
253damages plus court costs and reasonable attorney's fees. If the
254lienor fails to file suit within 60 days after the posting of
255such bond, the bond shall be discharged.
256     (c)  The owner or lienholder may obtain the release of a
257motor vehicle pursuant to s. 713.78.
258     (2)  The failure of a lienor to release or return to the
259customer, owner, or lienholder the motor vehicle upon which any
260lien is claimed, upon receiving a copy of a certificate giving
261notice of the posting of the bond and directing release of the
262motor vehicle, shall subject the lienor to judicial proceedings
263which may be brought by the customer, owner, or lienholder to
264compel compliance with the certificate. Whenever a customer,
265owner, or lienholder brings an action to compel compliance with
266the certificate, the customer, owner, or lienholder need only
267establish that:
268     (a)  Bond in the amount of the invoice, plus accrued
269storage charges, if any, less any amount paid to the motor
270vehicle repair shop as indicated on the invoice, plus 15
271percent, was posted;
272     (b)  A certificate was issued pursuant to this section;
273     (c)  The motor vehicle repair shop, or any employee or
274agent thereof who is authorized to release the motor vehicle,
275received a copy of a certificate issued pursuant to this
276section; and
277     (d)  The motor vehicle repair shop or employee authorized
278to release the motor vehicle failed to release the motor
279vehicle.
280
281The customer, owner, or lienholder, upon a judgment in her or
282his favor in an action brought under this subsection, may be
283entitled to damages plus court costs and reasonable attorney's
284fees sustained by her or him by reason of such wrongful
285detention or retention. Upon a judgment in favor of the motor
286vehicle repair shop, the shop may be entitled to reasonable
287attorney's fees.
288     (3)  Any motor vehicle repair shop which, or any employee
289or agent thereof who is authorized to release the motor vehicle
290who, upon receiving a copy of a certificate giving notice of the
291posting of the bond in the required amount and directing release
292of the motor vehicle, fails to release or return the property to
293the customer, owner, or lienholder pursuant to this section
294commits is guilty of a misdemeanor of the second degree,
295punishable as provided in s. 775.082 or s. 775.083.
296     (4)  Any customer, owner, or lienholder who stops payment
297on a credit card charge or a check drawn in favor of a motor
298vehicle repair shop on account of an invoice or who fails to
299post a cash or surety bond pursuant to this section shall be
300prohibited from any recourse under this section with respect to
301the motor vehicle repair shop.
302     Section 10.  Section 713.585, Florida Statutes, is amended
303to read:
304     713.585  Enforcement of lien by sale of motor vehicle.--A
305person claiming a lien under s. 713.58 for performing labor or
306services on a motor vehicle may enforce such lien by sale of the
307vehicle in accordance with the following procedures:
308     (1)  The lienor must give notice, by certified mail, return
309receipt requested, within 10 15 business days, excluding
310Saturday and Sunday, from the beginning date of the assessment
311of storage charges on the said motor vehicle, to the registered
312owner of the vehicle, to the customer as indicated on the order
313for repair, and to all other persons claiming an interest in or
314lien thereon, as disclosed by the records of the Department of
315Highway Safety and Motor Vehicles or of a corresponding agency
316of any other state in which the vehicle appears registered. Such
317notice must contain:
318     (a)  A description of the vehicle (year, make, vehicle
319identification number) and its location.
320     (b)  The name and address of the owner of the vehicle, the
321customer as indicated on the order for repair, and any person
322claiming an interest in or lien thereon.
323     (c)  The name, address, and telephone number of the lienor.
324     (d)  Notice that the lienor claims a lien on the vehicle
325for labor and services performed and storage charges, if any,
326and the cash sum which, if paid to the lienor, would be
327sufficient to redeem the vehicle from the lien claimed by the
328lienor.
329     (e)  Notice that the lien claimed by the lienor is subject
330to enforcement pursuant to this section and that the vehicle may
331be sold to satisfy the lien.
332     (f)  If known, the date, time, and location of any proposed
333or scheduled sale of the vehicle. No vehicle may be sold earlier
334than 50 60 days after completion of the repair work.
335     (g)  Notice that the owner of the vehicle or any person
336claiming an interest in or lien thereon has a right to a hearing
337at any time prior to the scheduled date of sale by filing a
338demand for hearing with the clerk of the circuit court in the
339county in which the vehicle is held and mailing copies of the
340demand for hearing to all other owners and lienors as reflected
341on the notice.
342     (h)  Notice that the owner or lienholder of the vehicle has
343a right to recover possession of the vehicle without instituting
344judicial proceedings by posting bond in accordance with the
345provisions of s. 559.917.
346     (i)  Notice that any proceeds from the sale of the vehicle
347remaining after payment of the amount claimed to be due and
348owing to the lienor will be deposited with the clerk of the
349circuit court for disposition upon court order pursuant to
350subsection (8).
351     (2)  If attempts to locate the owner or lienholder are
352unsuccessful, the lienor must notify the local law enforcement
353agency in writing by certified mail or acknowledged hand
354delivery that the lienor has been unable to locate the owner or
355lienholder, that a physical search of the vehicle has disclosed
356no ownership information, and that a good faith effort has been
357made. A description of the motor vehicle which includes the
358year, make, and identification number must be given on the
359notice. This notification must take place within 10 15 business
360days, excluding Saturday and Sunday, from the beginning date of
361the assessment of storage charges on the said motor vehicle. For
362purposes of this paragraph, the term "good faith effort" means
363that the following checks have been performed by the company to
364establish the prior state of registration and title:
365     (a)  A check of vehicle for any type of tag, tag record,
366temporary tag, or regular tag;
367     (b)  A check of vehicle for inspection sticker or other
368stickers and decals that could indicate the state of possible
369registration; and
370     (c)  A check of the interior of the vehicle for any papers
371that could be in the glove box, trunk, or other areas for the
372state of registration.
373     (3)  If the date of the sale was not included in the notice
374required in subsection (1), notice of the sale must be sent by
375certified mail, return receipt requested, not less than 15 days
376before the date of sale, to the customer as indicated on the
377order for repair, and to all other persons claiming an interest
378in or lien on the motor vehicle, as disclosed by the records of
379the Department of Highway Safety and Motor Vehicles or of a
380corresponding agency of any other state in which the vehicle
381appears to have been registered. After diligent search and
382inquiry, if the name and address of the registered owner or the
383owner of the recorded lien cannot be ascertained, the
384requirements for this notice may be disregarded.
385     (4)  The lienor, at least 15 days before the proposed or
386scheduled date of sale of the vehicle, shall publish the notice
387required by this section once in a newspaper circulated in the
388county where the vehicle is held. A certificate of compliance
389with the notification provisions of this section, verified by
390the lienor, together with a copy of the notice and return
391receipt for mailing of the notice required by this section, and
392proof of publication, must be duly and expeditiously filed with
393the clerk of the circuit court in the county where the vehicle
394is held. The lienor, at the time of filing the certificate of
395compliance, must pay to the clerk of that court a service charge
396of $10 for indexing and recording the certificate.
397     (5)  At any time prior to the proposed or scheduled date of
398sale of a vehicle, the owner of the vehicle, or any person
399claiming an interest in the vehicle or a lien thereon, may file
400a demand for hearing with the clerk of the circuit court in the
401county in which the vehicle is held to determine whether the
402vehicle has been wrongfully taken or withheld from her or him.
403Any person who files a demand for hearing shall mail copies of
404the demand to all other owners and lienors as reflected on the
405notice required in subsection (1). Upon the filing of a demand
406for hearing, a hearing shall be held prior to the proposed or
407scheduled date of sale of the vehicle.
408     (6)  In the event a lienor institutes a judicial proceeding
409to enforce a lien, no filing fee shall be required at the time
410of filing, but the court shall require the lienor to pay the
411filing fee unless the lienor shall prevail in the action.
412     (7)  At the hearing on the complaint, the court shall
413forthwith issue its order determining:
414     (a)  Whether the vehicle is subject to a valid lien by the
415lienor and the amount thereof;
416     (b)  The priority of the lien of the lienor as against any
417existing security interest in the vehicle;
418     (c)  The distribution of any proceeds of the sale by the
419clerk of the circuit court;
420     (d)  The award of reasonable attorney's fees and costs to
421the prevailing party; and
422     (e)  The reasonableness of storage charges.
423     (8)  A vehicle subject to lien enforcement pursuant to this
424section must be sold by the lienor at public sale. Immediately
425upon the sale of the vehicle and payment in cash of the purchase
426price, the lienor shall deposit with the clerk of the circuit
427court the proceeds of the sale less the amount claimed by the
428lienor for work done and storage, if any, and all reasonable
429costs and expenses incurred in conducting the sale, including
430any attorney's fees and costs ordered by the court.
431Simultaneously with depositing the proceeds of sale remaining
432after payment to the lienor, the lienor shall file with the
433clerk a verified report of the sale stating a description of the
434vehicle sold, including the vehicle identification number; the
435name and address of the purchaser; the date of the sale; and the
436selling price. The report shall also itemize the amount retained
437by the lienor pursuant to this section and shall indicate
438whether a hearing was demanded and held. All proceeds held by
439the court shall be held for the benefit of the owner of the
440vehicle or any lienholder whose lien is discharged by the sale
441and shall be disbursed only upon order of the court. Unless a
442proceeding is initiated to validate a claim to such proceeds
443within 1 year and a day from the date of the sale, the proceeds
444shall be deemed abandoned property and disposition thereof shall
445be governed by s. 705.103. The clerk shall receive 5 percent of
446the proceeds deposited with her or him, not to exceed $25, for
447her or his services under this section.
448     (9)  A copy of the certificate of compliance and the report
449of sale, certified by the clerk of the court, shall constitute
450satisfactory proof for application to the Department of Highway
451Safety and Motor Vehicles for transfer of title, together with
452any other proof required by any rules and regulations of the
453department.
454     (10)  Nothing contained in this section shall be construed
455as affecting an owner's right to redeem her or his vehicle from
456the lien at any time prior to sale by paying the amount claimed
457by the lienor for work done and assessed storage charges, plus
458any costs incurred by the repair shop for utilizing enforcement
459procedures under this section.
460     (11)  Nothing in this section shall operate in derogation
461of the rights and remedies established by s. 559.917.
462     (12)  When a vehicle is sold by a lienor in accordance with
463this law, a purchaser for value takes title to the vehicle free
464and clear of all claims, liens, and encumbrances whatsoever,
465unless otherwise provided by court order.
466     (13)  A failure to make good faith efforts as defined in
467subsection (2) precludes the imposition of any storage charges
468against the vehicle. If a lienor fails to provide notice to any
469person claiming a lien on a vehicle under subsection (1) within
47010 15 business days, excluding Saturday or Sunday, after the
471assessment of storage charges have begun, then the lienor is
472precluded from charging for more than 15 days of storage, but
473failure to provide timely notice does not affect charges made
474for repairs, adjustments, or modifications to the vehicle or the
475priority of liens on the vehicle.
476     Section 11.  This act shall take effect July 1, 2009.


CODING: Words stricken are deletions; words underlined are additions.