Florida Senate - 2017                                     SB 536
       By Senator Brandes
       24-00464A-17                                           2017536__
    1                        A bill to be entitled                      
    2         An act relating to unclaimed funds held by the clerks
    3         of court; repealing s. 43.19, F.S., relating to the
    4         deposit of unclaimed funds with the Chief Financial
    5         Officer to the credit of the State School Fund;
    6         amending s. 45.032, F.S.; deleting a definition;
    7         requiring the clerk to report as unclaimed property a
    8         surplus under certain circumstances; providing
    9         reporting requirements; requiring the Department of
   10         Financial Services to prescribe a form by rule;
   11         specifying who is entitled to a surplus under certain
   12         circumstances; conforming provisions to changes made
   13         by the act; amending s. 45.033, F.S.; conforming a
   14         provision to changes made by the act; repealing s.
   15         45.034, F.S., relating to qualifications and
   16         appointment of a surplus trustee in foreclosure
   17         actions; amending s. 45.035, F.S.; revising service
   18         charges that a clerk may receive and deduct from
   19         surplus; amending ss. 717.124, 717.138, and 717.1401,
   20         F.S.; conforming cross-references; providing an
   21         effective date.
   23  Be It Enacted by the Legislature of the State of Florida:
   25         Section 1. Section 43.19, Florida Statutes, is repealed.
   26         Section 2. Paragraph (d) of subsection (1) and subsections
   27  (3) and (4) of section 45.032, Florida Statutes, are amended,
   28  and subsection (5) of that section is redesignated as subsection
   29  (4), to read:
   30         45.032 Disbursement of surplus funds after judicial sale.—
   31         (1) For purposes of ss. 45.031-45.035, the term:
   32         (d) “Surplus trustee” means a person qualifying as a
   33  surplus trustee pursuant to s. 45.034.
   34         (3) During the 60 days after the clerk issues a certificate
   35  of disbursements, the clerk shall hold the surplus pending a
   36  court order or expiration of the 60 days. Upon expiration of the
   37  60 days, the clerk shall report the surplus as provided in
   38  paragraph (c).
   39         (a) If the owner of record claims the surplus during the
   40  60-day period and there is no subordinate lienholder, the court
   41  shall order the clerk to deduct any applicable service charges
   42  from the surplus and pay the remainder to the owner of record.
   43  The clerk may establish a reasonable requirement that the owner
   44  of record prove his or her identity before receiving the
   45  disbursement. The clerk may assist an owner of record in making
   46  a claim. An owner of record may use the following form in making
   47  a claim:
   49  (Caption of Action)
   51                          OWNER’S CLAIM FOR                        
   52                    MORTGAGE FORECLOSURE SURPLUS                   
   54  State of ....
   55  County of ....
   56         Under penalty of perjury, I (we) hereby certify that:
   57         1. I was (we were) the owner of the following described
   58  real property in .... County, Florida, prior to the foreclosure
   59  sale and as of the date of the filing of the lis pendens:
   61  ...(Legal description of real property)...
   63         2. I (we) do not owe any money on any mortgage on the
   64  property that was foreclosed other than the one that was paid
   65  off by the foreclosure.
   66         3. I (we) do not owe any money that is the subject of an
   67  unpaid judgment, tax warrant, condominium lien, cooperative
   68  lien, or homeowners’ association.
   69         4. I am (we are) not currently in bankruptcy.
   70         5. I (we) have not sold or assigned my (our) right to the
   71  mortgage surplus.
   72         6. My (our) new address is: .....
   73         7. If there is more than one owner entitled to the surplus,
   74  we have agreed that the surplus should be paid .... jointly, or
   75  to: ...., at the following address: .....
   84  ...(Signatures)...
   86         Sworn to (or affirmed) and subscribed before me this ....
   87  day of ...., ...(year)..., by ...(name of person making
   88  statement)....
   89         ...(Signature of Notary Public - State of Florida)...
   90         ...(Print, Type, or Stamp Commissioned Name of Notary
   91  Public)...
   93         Personally Known .... OR Produced Identification ....
   94         Type of Identification Produced..........................
   96         (b) If any person other than the owner of record claims an
   97  interest in the proceeds during the 60-day period or if the
   98  owner of record files a claim for the surplus but acknowledges
   99  that one or more other persons may be entitled to part or all of
  100  the surplus, the court shall set an evidentiary hearing to
  101  determine entitlement to the surplus. At the evidentiary
  102  hearing, an equity assignee has the burden of proving that he or
  103  she is entitled to some or all of the surplus funds. The court
  104  may grant summary judgment to a subordinate lienholder prior to
  105  or at the evidentiary hearing. The court shall consider the
  106  factors in s. 45.033 when hearing a claim that any person other
  107  than a subordinate lienholder or the owner of record is entitled
  108  to the surplus funds.
  109         (c) If no claim is filed during the 60-day period, or if
  110  surplus funds remain after payment to any subordinate lienholder
  111  that filed a claim within the 60-day period, the clerk shall
  112  immediately report as unclaimed property any surplus in an
  113  amount of $10 or more to the Department of Financial Services on
  114  such forms as the department shall prescribe by rule pursuant to
  115  s. 717.138. In reporting the unclaimed property, the clerk shall
  116  include his or her name, address, county, and judicial circuit
  117  number; the case number; the name of each owner of record as
  118  defined in paragraph (1)(a); the owner’s last known address at
  119  which service of the final judgment, pursuant to s.
  120  45.031(1)(a), was made; the surplus amount; and at least one of
  121  the following: the street name and number, city, state, and zip
  122  code of the real property sold at the judicial sale; the parcel
  123  identification of the real property sold at the judicial sale;
  124  or the real estate number of the real property sold at the
  125  judicial sale. For purposes of establishing entitlement to the
  126  property, only the owner of record reported by the clerk, or the
  127  estate or beneficiary as defined in s. 731.201 of a deceased
  128  owner of record reported by the clerk, is entitled to the
  129  surplus. Any surplus of less than $10 escheats to the clerk
  130  appoint a surplus trustee from a list of qualified surplus
  131  trustees as authorized in s. 45.034. Upon such appointment, the
  132  clerk shall prepare a notice of appointment of surplus trustee
  133  and shall furnish a copy to the surplus trustee. The form of the
  134  notice may be as follows:
  136  (Caption of Action)
  138                        NOTICE OF APPOINTMENT                      
  139                         OF SURPLUS TRUSTEE                        
  141         The undersigned clerk of the court certifies that he or she
  142  disbursed the proceeds received from the sale of the property as
  143  provided in the order or final judgment to the persons named in
  144  the certificate of disbursements, and that surplus funds of
  145  $.... remain and are subject to disbursement to the owner of
  146  record. You have been appointed as surplus trustee for the
  147  purpose of finding the owner of record in order for the clerk to
  148  disburse the surplus, after deducting costs, to the owner of
  149  record.
  150  WITNESS my hand and the seal of the court on ...., ...(year)....
  151  ...(Clerk)...
  152  By ...(Deputy Clerk)...
  154         (4) If the surplus trustee is unable to locate the owner of
  155  record entitled to the surplus within 1 year after appointment,
  156  the appointment shall terminate and the clerk shall notify the
  157  surplus trustee that his or her appointment was terminated.
  158  Thirty days after termination of the appointment of the surplus
  159  trustee, the clerk shall treat the remaining funds as unclaimed
  160  property to be deposited with the Chief Financial Officer
  161  pursuant to chapter 717.
  162         Section 3. Paragraph (d) of subsection (3) of section
  163  45.033, Florida Statutes, is amended, and paragraph (e) of that
  164  subsection is redesignated as paragraph (d), to read:
  165         45.033 Sale or assignment of rights to surplus funds in a
  166  property subject to foreclosure.—
  167         (3) A voluntary transfer or assignment shall be a transfer
  168  or assignment qualified under this subsection, thereby entitling
  169  the transferee or assignee to the surplus funds or a portion or
  170  percentage of the surplus funds, if:
  171         (d) The transferor or assignee is qualified as a surplus
  172  trustee, or could qualify as a surplus trustee, pursuant to s.
  173  45.034.
  174         Section 4. Section 45.034, Florida Statutes, is repealed.
  175         Section 5. Paragraphs (b) and (d) of subsection (2) of
  176  section 45.035, Florida Statutes, are amended, and paragraph (c)
  177  of that subsection is redesignated as paragraph (b), to read:
  178         45.035 Clerk’s fees.—In addition to other fees or service
  179  charges authorized by law, the clerk shall receive service
  180  charges related to the judicial sales procedure set forth in ss.
  181  45.031-45.034 and this section:
  182         (2) If there is a surplus resulting from the sale, the
  183  clerk may receive the following service charges, which shall be
  184  deducted from the surplus:
  185         (b) The clerk is entitled to a service charge of $15 for
  186  notifying a surplus trustee of his or her appointment.
  187         (d) The clerk is entitled to a service charge of $15 for
  188  appointing a surplus trustee, furnishing the surplus trustee
  189  with a copy of the final judgment and the certificate of
  190  disbursements, and disbursing to the surplus trustee the
  191  trustee’s cost advance.
  192         Section 6. Subsection (8) of section 717.124, Florida
  193  Statutes, is amended to read:
  194         717.124 Unclaimed property claims.—
  195         (8) This section applies to all unclaimed property reported
  196  and remitted to the Chief Financial Officer, including, but not
  197  limited to, property reported pursuant to ss. 43.19, 45.032,
  198  732.107, 733.816, and 744.534.
  199         Section 7. Section 717.138, Florida Statutes, is amended to
  200  read:
  201         717.138 Rulemaking authority.—The department shall
  202  administer and provide for the enforcement of this chapter. The
  203  department has authority to adopt rules pursuant to ss.
  204  120.536(1) and 120.54 to implement the provisions of this
  205  chapter. The department may adopt rules to allow for electronic
  206  filing of fees, forms, and reports required by this chapter. The
  207  authority to adopt rules pursuant to this chapter applies to all
  208  unclaimed property reported and remitted to the Chief Financial
  209  Officer, including, but not limited to, property reported and
  210  remitted pursuant to ss. 43.19, 45.032, 732.107, 733.816, and
  211  744.534.
  212         Section 8. Section 717.1401, Florida Statutes, is amended
  213  to read:
  214         717.1401 Repeal.—This chapter shall not repeal, but shall
  215  be additional and supplemental to the existing provisions of ss.
  216  43.18, 43.19, and 402.17 and chapter 716.
  217         Section 9. This act shall take effect July 1, 2017.