New law says file money judgments with DOS.
All of this changes on October 1, 2001, the effective date of newly created F.S. 55.201-.209 (Oh. 2000-258, Laws of Florida). The new law charges the Florida Department of State with maintaining a state database of judgment lien records. It directs that sheriffs cease docketing writs of execution on that date. It further requires all judgment creditors who delivered writs of execution to a sheriff prior to that date to refile with the Department of State before October 1, 2003, or their liens are deemed abandoned.
The new law will greatly simplify the procedure for acquiring a statewide lien on all personal property of a judgment debtor. Instead of filing in every county, a judgment holder under the new law acquires a lien on all personal property of the judgment debtor subject to execution in Florida by following this procedure:
1. A judgment is entered and becomes final and no stay is entered.
2. A judgment lien certificate is prepared on a form to be mandated by the Florida Department of State which includes the following information:
A. The legal name of each judgment debtor. If it is a recorded legal entity in Florida, the certificate must include its registered name and Florida Department of State document number.
B. The last known address of each judgment debtor.
C. The Social Security number or federal identification number of each judgment debtor.
D. The legal name of the judgment creditor. If it is a recorded legal entity in Florida, the certificate must include its registered name and Florida Department of State document number.
E. The address of the judgment creditor.
F. The Social Security number or federal employer identification number (tax ID) number of the judgment creditor.
G. The court, case number, and date the written judgment was entered.
H. The amount due on the judgment, and the applicable interest rate.
I. The signature of the judgment creditor or its attorney or representative.
3. The judgment lien certificate is filed with the Florida Department of State.
The new law applies to all judgments whether entered by Florida state courts, Florida federal courts, any other state's courts, any other federal courts, or any foreign state's courts. It also permits tax liens and assessments of the State of Florida and its political subdivisions to be included in the database.
Excluded from the lien of the judgment are the following items of personal property: fixtures, money, negotiable instruments and mortgages. This exclusion still leaves many types of tangible and intangible personal property (such as patents, trademarks, copyrights and other intellectual property rights) subject to the lien.
The effective date of the lien is the date of recording the judgment lien certificate with the Florida Department of State. The lien attaches to the judgment debtor's personal property at that time and thereafter when the debtor acquires an interest in personal property subject to execution in Florida.
The law includes provisions for duration of the lien (five years, except 20 years for tax liens and child support liens), second judgment liens, priorities as to other liens, amendment, termination, partial release, correction and abandonment.
Note that the new law only applies to personal property and not to real property. Florida Statutes 55.10 still requires recording a certified copy of a judgment with the Clerk of Court to become a lien on real property located in that county. (The new law amends that statute to extend the duration of the renewal period of the lien on real property from seven years to 10 years.)
As with any new law, glitches will appear before it becomes effective a year from now on October 1, 2001. One such glitch is the requirement to include Social Security numbers in the judgment lien certificate. The first problem is that the Federal Privacy Act of 1974 (Pub. L. 93-579) generally prohibits government agencies from requiring disclosure of Social Security numbers. With few exceptions, the Privacy Act makes it "unlawful for any federal, state or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his Social Security account number." The U.S. Supreme Court has said:
"Also supporting our conclusion that a strong privacy interest inheres in the nondisclosure of compiled computerized information is the Privacy Act of 1974; codified at 5 U.S.C. 552a (1982 ed. and Supp. V). The Privacy Act was passed largely out of concern over 'the impact of computer data banks on individual privacy.' H.R. Rep. No.931416, p.7 (1974)." U.S. Dept. of Justice v. Reporters Committee for Freedom of the Press, 109 S.Ct. 1468 at 1478, 103 L.Ed. 774, 57 U.S.L.W. 4373 (1989).
It is likely that the new law's requirement that an individual judgment creditor disclose his or her Social Security number as a condition of being given a lien on the judgment debtor's personal property in Florida violates this federal law that preempts state law. (Government in the Sunshine Manual, volume 10, 11.0.4., 1988, page 63: "If a federal statute requires particular records to be closed and the state is clearly subject to the provisions of said statute, then pursuant to the supremacy clause of the United States Constitution, Article VI, section 2, United States Constitution, the state is required to keep such records confidential.")
The second problem with requiring the Social Security number in the judgment lien certificate is that the judgment holder might not know the debtor's SSN. The only exception in the new law for excluding the SSN is if the judgment was obtained by default. It is even less likely that the holder of a default judgment would know the debtor's SSN since discovery probably was not taken before entry of the default.
Another glitch is that the new law requires the department to index judgment lien certificates by judgment debtor names but says nothing about judgment creditor names.
Any attorney who has tried to check a client's writs of execution on file with a sheriff knows the value of indexing by judgment creditor names.
Hopefully, the department will voluntarily index by both judgment debtor and creditor or a glitch bill will be passed to remedy this omission.
But all in all the new law will benefit the public by providing a single database in which to search for judgment liens on personal property in Florida, long a leader in public access to public records. The legislature's decision to entrust this database to the hands of the Florida Department of State is well-placed. The Department of State has for many years, and with great success and admiration, performed the astounding task of main500,000 corporations and myriad UCC and trademark filings. In more recent years it has been given the responsibility of maintaining statewide databases for fictitious names, partnerships, and federal liens.
In every case the transition was smooth and efficient. The databases maintained by the Department of State, with their full Internet search and document image access capabilities, are models throughout the land. Once again Florida leads the nation in public access to public records.
James W. Martin is a lawyer in St. Petersburg. His website www.james martinpa.comlists links to searchable online databases of county and state governments.
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|Author:||Martin, James W.|
|Publication:||Florida Bar News|
|Date:||Oct 1, 2000|
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