WHAT DO I DO WITH MY JUDGMENT NOW? A PRIMER ON THE NEW CENTRALIZED JUDGMENT LIEN LAW
Effective October 1, 2001, the way money judgments are enforced in Florida is undergoing a sweeping revision, affecting everything from the manner of perfecting a lien on personal property to the duration of judgment liens and priorities among judgment creditors. [FN1] The changes apply to all stages of the judgment collection process, from entry to expiration, and affect existing judgments and judgment liens as well. Despite the significant changes which the new system will cause to debtor-creditor law, transactional practice, and the perfection of judgment liens on personal property, it has received surprisingly little publicity. It is the intent of this article to highlight the major points of the new law.
The Florida Legislature in the 2000 Legislative Session established a centralized system for perfecting and prioritizing judgment liens on personal property by filing of a judgment lien certificate with the Department of State, to be maintained in a statewide database accessible online. [FN2] Although the bill was signed by the governor in June 2000, the effective date of the centralized judgment lien filing provisions was delayed to October 1, 2001. [FN3] A "glitch" bill making additional changes was passed by the Florida Legislature in this year's session, and also takes effect on October 1, 2001. [FN4]
Judgment Lien Certificate
Commencing October 1, 2001, the mechanism for obtaining a judgment lien on personal property of the debtor subject to levy shall be through the filing with the Florida Department of State (the "department") of a judgment lien certificate. [FN5] This mechanism replaces the docketing of execution with the sheriff as the means of perfecting a judgment lien on personal property, and will create a lien on personal property of the debtor statewide, rather than only property within the county of docketing as heretofore. [FN6]
The new law also applies to existing judgment liens. If the creditor has already obtained a lien by delivery of a writ of execution to a sheriff prior to October 1, 2001, a judgment lien certificate must be filed before October 1, 2003, together with an affidavit signed by the creditor, including a statement of the date or a certification by the sheriff of the date of delivery. [FN7]
The department is establishing a centralized statewide filing system, based upon the system now being utilized for filings under the Florida Uniform Commercial Code. The centralized database will be accessible online, both for filing and review. The department is charged with prescribing mandatory forms for the judgment lien certificate and affidavit. Forms promulgated by the Department are available for download at its website: http:// www.dos.state.fl.us/doc/pdf/jlien_cert.pdf.
A judgment lien certificate may be filed by 1) the holder of a judgment enforceable under the laws of Florida or of the United States [FN8] and 2) by the holder of a validly entered child support order being enforced or enforceable in Florida. [FN9] Any liens, warrants, assessments, or judgments collected by the Department of Revenue may be filed directly into the central database. [FN10] The holder of a federal court judgment entered or registered in Florida may also now file a lien certificate directly into the central database without first domesticating the judgment pursuant to F.S. §55.501 et seq. [FN11] The new centralized filing appears to comply with the "one office within the state" rule of IRC §6323(F), and therefore should supplant the filing requirements of the Florida Uniform Federal Lien Registration Act [FN12] as to where a federal tax lien should *74 be filed as against personal property of an individual.
The judgment lien certificate may be filed at any time after the judgment has become final and enforceable, [FN13] provided that no stay of the judgment or its enforcement is then in effect. [FN14] In case of judgments rendered by courts of other states or other countries, the judgment lien certificate may be filed as soon as an order recognizing it has been entered by a Florida court. [FN15] As with issuance of execution, there is no deadline for filing a judgment lien certificate, and it is therefore permissible at any time during the 20-year life of the judgment. [FN16]
A judgment lien certificate must include the legal names and last known addresses of each judgment debtor and, if a recorded legal entity, the registered name and do***ent filing number as shown in the records of the department. The Social Security number or federal employer identification number of a judgment debtor must be included only if shown on the judgment itself. [FN17] The legal name and address of each judgment creditor and the name of the judgment creditor's attorney or duly authorized representative, if any, also must be included. [FN18] If the creditor is a recorded legal entity, the certificate must identify the registered name and do***ent filing number of the creditor. [FN19] The certificate must identify the court which entered the judgment, the case number and date the written judgment was entered, the amount of the judgment, and applicable interest rate. [FN20] The judgment lien certificate must be signed by the judgment creditor or its attorney or duly authorized representative. [FN21] If the certificate is filed as to a preexisting lien, an affidavit must also be filed attesting the date execution was delivered to a sheriff. [FN22]
Duration of Lien
The new judgment certificate is valid as a lien on personal property for a period of five years after filing. [FN23] The creditor can obtain one new judgment lien by filing a new judgment lien certificate within six months before or six months after the expiration of the initial lien, but the refiled lien is a new lien effective as of the refiling, and not a continuation. [FN24] This represents a departure from the concept of the Uniform Commercial Code, where a continuation statement if timely filed continues the priority status of the original financing statement. The five-year limitation is not applicable to state tax warrants and child support obligations, which have a duration of 20 years from the date of the filing of the warrant or other do***ent required by law to establish a lien. [FN25]
If specific itemized personal property is subject to a judgment lien as of the date of expiration of the five-year lien period, the law provides for a 90- day extension of the lien if the levy was delivered to the sheriff before the lapse of the lien, the property is itemized and its location is described sufficient for levy, and the property is located in the designated county in which the sheriff had jurisdiction at the time of delivery of the writ. [FN26] A court also has the discretion to extend the lien beyond the 90 days if extraordinary cir***stances have prevented a levy. While "extraordinary" is not defined, it is reasonable to assume that only cir***stances beyond the creditor's control would be sufficient. [FN27]
The five-year lien period will be tolled under §55.204(5) during the time in which the enforceability of a judgment lien is temporarily stayed or enjoined as a result of any legal or equitable proceeding until 30 days after the stay or injunction is terminated. [FN28]
Indexing of Judgment Liens
Similar to the Uniform Commercial Code database, the department is instructed to maintain an Internet-accessible index of all judgment lien certificates, including 1) a unique file number, 2) date and time of filing, 3) index each certificate by name of judgment debtor, and 4) index all subsequently filed do***ents relating to an original judgment lien certificate in a manner that associates them to the original certificate. [FN29]
A properly filed judgment lien is effective as of the date of filing, including the time of day, but no lien attaches to the property (and the creditor does not become a "lien creditor" under the UCC) until the debtor acquires an interest in the property. The judgment will be enforceable against after acquired non-exempt property as of the date the debtor acquires an interest in the property. [FN30]
The priority of a judgment lien is determined by the date (including the time of day) of filing of the certificate. [FN31] The new law removes any uncertainty as to existence of liens arising from delays by sheriffs in docketing writs previously delivered. A judgment creditor may only record one judgment lien certificate based upon a particular judgment. [FN32]
A creditor still has a right to levy on property pursuant to a writ of execution, even if a judgment lien certificate has not been filed. However, the lien of execution is only effective as to the specific property referenced in the writ as of the date of levy and the creditor takes subject to the claims of priority judgment creditors who have filed a certificate. [FN33]
Amendment and Termination
The judgment lien certificate may be amended at any time by the filing of an amendment by or on behalf of the judgment creditor which may provide for 1) termination, partial release, or assignment; 2) continuation; 3) tolling and the termination of tolling as a result of bankruptcy of a debtor or other lapse of a judgment lien; and 4) correction or change of any other information provided in the record of a judgment lien. [FN34]
A creditor has the affirmative obligation to notify the debtor in writing within 30 days after receipt by the creditor of a written demand from the debtor after the judgment has been fully or partially released. *75 The written notification from the creditor must either confirm a release of the lien or verify that the lien has been partially released, and setting forth the value of the lien remaining unpaid. Failure of the judgment creditor to provide the required statement in a timely manner can result in liability to the debtor of $100, together with any actual or consequential damages, including reasonable attorneys' fees caused by such failure. The written statement from the judgment creditor may be filed with the department by the creditor, its assignee, or the debtor. [FN35]
If a debtor believes that a judgment lien certificate is incorrect or improperly filed, a debtor has the right to file a correction statement with the department, which must 1) state the judgment debtor's name and the file number, 2) provide the basis for the debtor's belief that the certificate was wrongfully filed or inaccurate, and 3) indicate the manner in which the debtor believes the file should be corrected to cure any inaccuracy.
The department must index the correction statement under the debtor's name to make it available to anyone searching the database as to the judgment against which the debtor is objecting. The effectiveness of the original judgment lien is not affected by the filing of a judgment lien correction. [FN36]
The department is proscribed from conducting any search of the database to confirm existence of any lien or to make any certification or determination of the validity of any judgment lien. The role of the department is to maintain the central database for public notice purposes only. [FN37]
Effect on Existing Liens
The sheriffs of the counties of Florida will not accept for docketing any new writs of execution after October 1, 2001. The sheriff is required to maintain the existing docket until October 1, 2003. [FN38] There is a limited two-year phase in period as to existing liens. All liens created by writs of execution delivered to the sheriff of any county before October 1, 2001, remain in effect for two years as to any property of the debtor located in that county as of October 1, 2001.
Don't let your judgment lien turn into a pumpkin by losing priority! A judgment lien certificate must be filed before October 1, 2003, for every existing judgment in order to keep the priority of the judgment lien. If a judgment creditor who has delivered a writ of execution to a sheriff prior to October 1, 2001, files a judgment lien certificate with the department by October 1, 2003, the judgment lien is retroactive to the date of delivery of the writ to the sheriff, but only as to the property of the debtor in the county as of October 1, 2001. If a creditor who has previously docketed a writ of execution with the sheriff fails to file a judgment lien certificate with the department by October 1, 2003, the writ will be considered to be abandoned and be of no effect as of October 1, 2003. [FN39]
A properly filed judgment lien certificate will constitute a lien on the debtor's interest in all personal property which is subject to execution in Florida under F.S. §56.061, other than fixtures, money, negotiable instruments, and mortgages. [FN40] The lien will also become effective as against nonexempt after acquired property of the debtor when the debtor acquires the property.
The statute contains an exception for buyers in the ordinary course of business, who acquire personal property free of the lien even if they had knowledge of the lien, and creditors with an existing perfected security interest in after-acquired property acquired pursuant to the UCC have priority over the judgment lien holder. [FN41]
There is also an exception for individual buyers of goods for personal, family, or household use from a seller who held the goods for personal, family, or household use, who pay value without knowledge of the judgment lien, to the extent of the value paid, provided that the aggregate value of the transfer is less than $30,000. This exception is not available as to 1) a transfer to a relative or other insider of the judgment debtor, 2) a fraudulent transfer, or 3) a fraudulent asset conversion, and is subject to a value limitation, equal to 25 percent of the value of the goods if the value in the aggregate exceeds $10,000, 50 percent of the transfer if the aggregate value exceeds $20,000, 75 percent of the transfer if the aggregate value exceeds $25,000, and all of the transfer if the aggregate value exceeds $30,000. [FN42]
A buyer of stock in a corporation also takes free of a judgment lien if the buyer pays value in good faith without notice as defined in F.S. §678.1051. [FN43]
Changes in Other Post-judgment Process and Proceedings
A valid judgment lien gives the creditor the right to proceed against the property of the debtor through writ of execution, garnishment, or other judicial process. [FN44] The new judgment lien certificate process merely establishes lien priority of judgments statewide as to personal property of the debtor anywhere in Florida.
There are, however, also important changes under the new law in other post-judgment process and proceedings. Revised F.S. §56.29(1) clarifies the procedure for initiating proceedings supplementary to provide that, when a creditor holds an unsatisfied execution, and has delivered a writ of execution to any sheriff, the creditor is entitled to commence proceedings supplementary by filing an affidavit setting forth the delivery of the writ and that the execution is valid and outstanding.
The garnishment statute, F.S. ch. 77, has been amended to require that in the case of individual defendants, the clerk of the court must attach to every writ a Notice to Defendant as to the defendant's right to exemption from garnishment, including a list of the major exemptions, and a form for Claim of Exemption and Request for Hearing. [FN45] *76 The new law also expressly provides for the first time that the service of the writ of garnishment creates a lien as of the time of service of the writ or at any time between service and the garnishee's answer, in any property of the debtor in garnishee's possession or control. [FN46]
There are also substantive changes in the procedure for enforcing a judgment lien by levy on personal property. The levying creditor must file an affidavit on or before the date of the first publication or posting of the notice of sale: 1) stating that the creditor has reviewed the judgment lien index and the information contained in the affidavit based on that review is true and correct; 2) providing the information required under F.S. §55.203(1) and (2) as to each judgment lien certificate on file as to the judgment debtor, including the file number and date of filing of each judgment lien certificate; and 3) stating that the levying creditor either does not have any other levy in process or, if another levy is in process, the creditor believes in good faith that the total value of the property under execution does not exceed the amount of the outstanding judgments. [FN47]
The sheriff is entitled to rely upon the affidavit and is not liable to anyone for damages arising from wrongful levy. [FN48] A notice of the levy and execution sale and a copy of the affidavit must be sent by the levying creditor to the attorney of record of each judgment creditor who has filed a judgment lien certificate at the address listed in the judgment lien certificate, and to all secured creditors who have filed UCC financing statements in the name of the judgment debtor claiming a security interest in the property of the kind to be sold at the execution sale at the address listed on the financing statement. [FN49]
Proceeds for the execution shall be paid in the following order: [FN50] 1) to the sheriff, for costs; 2) $500 to the levying creditor as liquidated expenses; 3) to the judgment lien holder having the earliest filed judgment lien, provided the judgment lien is not satisfied. If the monies exceed the amount necessary to satisfy 1) - 3), the surplus is to be paid to other judgment creditors in the order of priority of their filed liens, and any remaining funds go to the debtor. Priority shall be determined by date of filing of certificates as set forth in the affidavit of the levying creditors, if any.
The statute contains a "safe harbor" provision to protect judgment creditors from claims of abuse of the levy and sale process. The statute specifically states that the sale of the property levied upon shall not be considered excessive unless its value unreasonably exceeds the total debt reflected in all outstanding unsatisfied judgment liens, including the lien of the levying creditor. [FN51]
Other Effects of the Statutory Changes
In addition to simplifying the judgment collection process, the public nature of the new centralized lien filing system may facilitate satisfaction of judgments by putting additional pressure on debtors to pay. The filing of a lien certificate in a computerized central database gives easily accessible public notice of the judgment to other creditors and persons who may do business with the debtor, encouraging the debtor to seek a compromise with the judgment lienholder.
Probably the greatest impact of the new law will be the ability of the various national credit agencies, lenders, and other persons extending credit to debtors to check one central database to determine the existence of judgment liens against the debtor's personal property assets. Prior to October 1, 2001, it has been difficult for credit agencies to search the public court records or sheriff's docket sheets of the counties in Florida to determine whether a person or company has a judgment against it of record.
A filed judgment lien will undoubtedly have a crippling effect on a credit report until satisfied or otherwise released, since the judgment debtor is in constant danger of having his personal property levied upon and supplemental proceedings commenced to locate and levy upon the nonexempt assets. Due to the major role which national credit agencies and credit reports have upon the ability of persons to obtain credit and conduct business and even to be hired for new jobs, the law should have the effect of placing increased pressure on judgment debtors to satisfy the judgments in order to reestablish their credit record or to consider a bankruptcy filing to discharge the judgments. [FN52]
There are possible negative effects of the statute, in that strategies previously available to debtors only on a county-to-county basis may now be employed to impede creditors statewide. A savvy judgment debtor facing a plethora of lawsuits and potential liens could take advantage of the centralized filing system by having a "friendly" judgment creditor holding a large debt obtain a judgment through default or by consent and file a judgment lien certificate so as to obtain first priority. The debtor could then make arrangements to have the creditor hold off instituting a levy, by, for example, agreeing to pay interest only to the creditor on its judgment. Offsetting this effect, however, the priority of the new judgment lien certificate lasts for five years only, as opposed to the previous law allowing a writ of execution to retain its priority on the sheriff's docket for the full 20-year duration of the judgment.
Some think the centralized filing system may also discourage levies by some judgment creditors, in the case of a debtor subject to multiple perfected judgment lien certificates. [FN53] The judgment creditor who is not "first in line" may not be motivated to levy on the property of the debtor, because the liens of the prior judgment creditors would have to be satisfied first. [FN54] However, this is also the case under previous law, where the sheriff of a county holds multiple executions, except in cases where the efforts of the diligent junior lienholder have made the property subject to levy. [FN55] Nevertheless, the time included in preparation of a certificate and the cost to file the certificate are nominal, [FN56] and there *77 appears to be no "down-side" to the filing of a certificate by a creditor, even if there are other prior creditors. Eventually the earlier liens will lapse, and the creditor will move to the head of the line.
The new law is a major improvement which effectively brings Florida into the 21st century with respect to the procedures for perfecting judgment liens against personal property. A creditor can obtain a lien on all of a debtor's leviable personal property located within the state, other than money, negotiable instruments, mortgages and fixtures, by filing the certificate with the department, instead of attempting to locate assets of the debtor in a specific county before obtaining a lien, and the new law will impair the ability of a debtor to avoid judgment liens by moving personal property from county to county.
Furthermore, the new law establishes priority among creditors statewide based upon the date of lien filing, similar to the priority system established by the Uniform Commercial Code, rather than requiring a race from county to county in search of leviable personal property, withdrawing and refiling writs of execution, and risking loss of priority in the process. Now it is up to attorneys representing Florida judgment creditors and debtors to follow the legislature into the 21st century by becoming familiar with and utilizing the new laws.
[FN1]. 2000 Fla. Laws ch. 258. The centralized filing system does not apply to liens on real property, which are perfected by recording of a certified copy of the judgment in the county where real property is located. See Fla. Stat. §55.10 (2001).
[FN2]. The centralized filing system is contained in new Fla. Stat. § §55.201 through 55.209. There is a developing trend among states to establish various types of centralized filing systems for judgment liens. See, for example, 2001 New Hampshire HB 745, R.S.A. 454-C. The impetus for such systems includes the need to establish guidelines for enforcement of child support obligations in compliance with federal law, the desire by the Internal Revenue Service to have centralized filing of federal tax liens, the similar desire by states to have centralized lien filing for state tax warrants, and perhaps most importantly, the success of the Uniform Commercial Code centralized data bases which have been especially useful when made Internet accessible.
[FN3]. Sections 5-19, Committee Substitute for Senate Bill 1194, 2000 Fla. Laws ch. 258. Other sections took effect July 1, 2000, including those related to garnishment and proceedings supplementary.
[FN4]. Committee Substitute for House Bill 601, 2001 Fla. Laws ch. 154.
[FN5]. Fla. Stat. §§55.201 through 55.209. Property subject to the judgment lien is property subject to levy and execution as defined in Fla. Stat. §55.202.
[FN6]. Fla. Stat. § 55.202(2). Prior to October 1, 2001, a lien was obtained and priority established at the time that the writ of execution was delivered to the sheriff in the county where the personal property is located. See Lahav Flooring and Fixtures v. Weinstein, 590 So. 2d 1055 (Fla. 3d D.C.A. 1991).
[FN7]. Fla. Stat. §55.203(1)(h); Fla. Stat. §30.17(4). Florida's new statute generally follows the concept of the California centralized filing statute originally enacted in 1982, Cal. Civ. Proc. §697.510 et seq. However, there are many differences between the California statute and the Florida law.
[FN8]. Fla. Stat. §55.202(1)(a).
[FN9]. Fla. Stat. §55.202(1)(b), (c).
[FN10]. Fla. Stat. §55.202(2)(b).
[FN11]. Fla. Stat. §55.202(1)(a). It therefore appears that a Florida federal court judgment creditor may file a lien certificate immediately upon the judgment becoming final, and thus have parity of priority with holders of judgments entered by Florida courts. Holders of judgments from other states or foreign countries will first have to domesticate such judgments to make them enforceable in Florida for purposes of §55.202(1)(a).
[FN12]. Fla. Stat. §713.901(3)(c)(4). Ch. 713 may need to be amended to resolve the apparent conflict with new Fla. Stat. §55.202 et seq.
[FN13]. Fla. R. Civ. P. 1.550 defines finality for purposes of execution or other final process to enforce a judgment.
[FN14]. Fla. Stat. §55.202(2)(a). If a judgment lien certificate is filed while a stay of the judgment or its enforcement is in effect, the lien certificate would apparently not become a lien until such time as the stay is lifted or becomes unenforceable. Query whether creditor who files a judgment lien certificate at the time that a stay is in effect could be liable to the debtor for damages for improper filing?
[FN15]. Fla. Stat. §§55.604(6), 55.202 (1)(a).
[FN16]. Fla. Stat. §55.081.
[FN17]. Fla. Stat. §55.203(1). The statute as originally enacted required that the social security number of the debtor be included. Due to privacy concerns, 2001 Fla. Laws ch. 154 amended this to require the social security number of the debtor only if included within the judgment. However, Fla. Stat. §55.01(2) still requires that each final judgment contain both the address and the Social Security number of each judgment debtor, "if known to the prevailing party." Many judgment lien certificates, especially those filed by lenders and other business creditors, will therefore include Social Security numbers.
[FN18]. Fla. Stat. §55.203(1)(a).
[FN20]. Fla. Stat. §55.203(1)(e), (f).
[FN21]. Fla. Stat. §55.203 (1)(g).
[FN22]. Fla. Stat. §55.203(1)(h). In the alternative, a certification of the date of delivery may be requested from the sheriff pursuant to Fla. Stat. §30.17(4).
[FN23]. Fla. Stat. §55.204(1). There is no time limit after rendition of the judgment within which a creditor must file a certificate. However, a judgment is subject to the overall 20-year statute of limitation from the date of rendition per §55.081.
[FN24]. Fla. Stat. §55.204(3). Note that the second judgment lien is also valid for five years only, and lapses permanently at that time. No additional perfected liens may be obtained based on either the original judgment or any judgment based on the original judgment. Thus, although the judgment is valid and enforceable for 20 years, it is a perfected lien on personal property of the debtor for a maximum period of 10 years. Although a second lien certificate may be recorded up to six months after the first has lapsed, creditors should note that they will have no perfected lien during that gap period.
[FN25]. Fla. Stat. §55.204(2). Tax warrants and child support obligations remain subject to the overall 20-year statute of limitations from the date the warrant or obligation was rendered under §55.081.
[FN26]. Fla. Stat. §55.204(4).
[FN27]. Fla. Stat. §55.204(4)(c). As to possible grounds for judicial continuation, see Newsletter, Mark Wolfson, Foley & Lardner, September 2000 (www.foleylardner.com).
[FN28]. Fla. Stat. §55.204(5). The statute appears to indicate that the tolling is automatic, without action by the creditor. Yet the statute authorizes the creditor to file an amendment to the judgment lien certificate setting forth the tolling and termination of tolling. Since the judgment lien lapses five years from filing, and since other creditors need to have confirmation of the lapse of a certificate, it would seem to follow that if a creditor did not file an amendment setting forth the tolling during the five-year period, the creditor may lose the benefit of the tolling period.
[FN29]. Fla. Stat. §55.203(4)
[FN30]. Fla. Stat. §55.202(2)(c). The statute cross references Fla. Stat. Ch. 679, it apparently being the legislative intent that the proper filing of a judgment lien certificate would cause the creditor to be a "lien creditor" under Fla. Stat. §679.301(3) as to non-exempt personal property other than money, negotiable instruments, mortgages and fixtures from the date the debtor acquires an interest in the property.
[FN31]. Fla. Stat. §55.202(2)(c). Prior to October 1, 2001, priority between judgment creditors has been determined by the sequence in which they deliver writs to the sheriff and the sheriff dockets the writs. See Jacksonville Bulls Football, Ltd. v. Blatt, 535 So. 2d 626 (Fla. 3d D.C.A. 1988).
[FN32]. Fla. Stat. §55.202(2)(d). The creditor also has the right to obtain a second lien based upon the same judgment under Fla. Stat. §55.204(3) within six months before or after the expiration of the original lien, but no additional liens may be acquired.
[FN33]. Fla. Stat. §55.205(1). There may be a question as to the ability of a creditor to levy on assets of the debtor after expiration or lapse of the judgment lien certificate. Since a creditor has an independent right to levy on assets, it would appear that once a judgment lien expires, the creditor would be in the same position as if it had not filed a certificate, and could still levy on assets for the duration of the 20-year period of the judgment, subject to the priority of other judgments listed in filed certificates.
[FN34]. Fla. Stat. §55.206(1).
[FN35]. Fla. Stat. §55.206(2).
[FN36]. Fla. Stat. §55.207. There undoubtedly will be many problems with judgment lien certificates filed where innocent parties have similar names, and may have their credit impaired. The statute does not require the creditor to file an amendment clarifying that the lien does not pertain to an "innocent party" who complains of the similarity of names. Compare this to the California statute which requires that the creditor file an amendment to the certificate if the "innocent party" with a similar name furnishes written evidence satisfactory to the creditor that the person is not the judgment debtor. See Cal. Civ. Proc. §697.550.
[FN37]. Fla. Stat. §56.209(2).
[FN38]. Fla. Stat. §30.17(4).
[FN39]. Fla. Stat. §55.208.
[FN40]. Fla. Stat. §55.202(2). Liens on money and negotiable instruments generally require possession. See Fla. Stat. §679.304(1). Therefore, judgment creditors will usually find it necessary to take possession by means of a levy of execution or replevin if the property is in the possession of the judgment debtor or garnishment if in the hands of a third party. See also Trodglen v. Hastings, 155 B.R. 601 (Bankr. S.D. Fla. 1993). As to liens on mortgages, see Evins v. Gainesville Nat. Bank, 80 Fla. 84, 85 So. 659 (Fla. 1920) (mortgage not subject to levy). Liens on fixtures require filing in the county real estate records, see Fla. Stat. §679.401(1)(b).
[FN41]. Fla. Stat. §55.205(2). Florida statutory law contains exemptions for certain types of personal property from judgment liens. For example, insurance annuity contracts under Fla. Stat. §222.14 and disability income benefits under Fla. Stat. §227.18. In addition, Florida case law has limited the extent of judgment liens with respect to some personal property assets. See, e.g., Peninsula State Bank v. United States of America, 211 So. 2d 3 (Fla. 1968) (accounts receivable are not subject to the lien of a simple judgment creditor). In order to reach an account receivable, a judgment creditor must bring a garnishment proceeding or a separate and independent judicial proceeding to establish and collect the debt for itself. Cf., Litton Indus. Automation Sys. v. Nationwide Power Corp., 106 F.3d 366 (11th Cir. 1997), as to federal tax liens. The centralized filing system was not intended to modify or alter the status of existing exemptions. The extent of the exemptions is beyond the scope of this introductory article.
[FN42]. Fla. Stat. §55.205(3).
[FN43]. Fla. Stat. §55.205(4). Under Fla. Stat. §678.1051(5) the filing of a financing statement under chapter 679 is not notice of an adverse claim to a financial asset. Since Fla. Stat. §678.1051 is cross referenced in the new statute, the apparent legislative intent is that the filing of a judgment lien certificate is not notice of an adverse claim as to goods being purchased, at least as to an individual buyer for personal, family, or household use from a noncommercial seller for a total cost less than $30,000.
[FN44]. Fla. Stat. §55.205(1).
[FN45]. Fla. Stat. §77.041.
[FN46]. Fla. Stat. §77.06(1). This statutorily overrules the federal case law interpreting the prior statute as not creating a lien until entry of a final judgment in garnishment. In re Masvidal, 10 F.3d 761, 763 (11th Cir. 1993).
[FN47]. Fla. Stat. §56.27(4).
[FN48]. Fla. Stat. §56.27(5).
[FN49]. Fla. Stat. §56.21.
[FN50]. Fla. Stat. §56.27(1).
[FN51]. Fla. Stat. §56.27(3).
[FN52]. Creditors in situations involving insolvency of the debtor need also to be aware of the super-priority of federal claims under the U.S. Bankruptcy Code, 11 U.S.C.A. §507, and under the Federal Insolvency Statute, 31 U.S.C.A. §3713. See generally, United States v. Oklahoma, 261 U.S. 253 (1923).
[FN53]. Newsletter, Mark Wolfson, Foley & Lardner, September 2000 (www.foleylardner.com).
[FN54]. Except for the $500 liquidated cost to be paid to the levying creditor. Fla. Stat. §56.27(1).
[FN55]. See Salina Manufacturing co. v. Diner's Club, Inc., 382 So. 2d 1309 (Fla. 3d D.C.A. 1980); Flagship State Bank of Jacksonville v. Carantzas, 352 So. 2d 1259 (Fla. 1st D.C.A. 1977), cert. denied, 361 So. 2d 830 (Fla. 1978).
[FN56]. The department will collect the following fees from the judgment lien certificate as follows: $20 for judgment lien certificate, $10 for certification, $1 per page for copies of judgment lien do***ents (but no charge for copies provided on line via Internet), $5 per additional name for indexing liens by multiple judgment debtor names, $5 for each additional page attached to a judgment lien certificate. Fla. Stat. §55.209.