The Florida Bar’s Civil Procedure Rules Committee has submitted to the Florida Supreme Court an out-of-cycle report proposing amendments to Florida Rule of Civil Procedure 1.570 (Enforcement of Final Judgments) and the adoption of Forms 1.914(b) (Notice to Appear) and 1.914(c) (Affidavit of Claimant in Response to Notice to Appear). The proposed amendments are in response to legislative amendments to chapter 56 (Final Process), Florida Statutes, made by chapter 2016-33, Laws of Florida. The court invites all interested persons to comment on the proposed amendments, which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed with the court on or before October 16 with a certificate of service verifying that a copy has been served on the committee chair, Judge Rodolfo Armando Ruiz, II, 11th Judicial Circuit, Dade County Courthouse, 73 W. Flagler St., Ste. 136, Miami 33130-1711, [email protected], and on the Bar staff liaison to the committee, Mikalla Davis, 651 E. Jefferson Street, Tallahassee 32399-2300, [email protected], as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The chair has until November 6 to file a response to any comments filed with the court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee 32399-1927; no additional copies are required or will be accepted.
IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE 1.570 AND FORM 1.914, SC17-1533
RULE 1.570. ENFORCEMENT OF FINAL JUDGMENTS
(a) – (d) [no change]
(e) Proceedings Supplementary. The holder of an unsatisfied judgment or judgment lien is entitled to conduct proceedings supplementary to execution and related discovery, as provided by chapter 56, Florida Statutes. Notices to Appear and supplemental complaints in proceedings supplementary must be served as provided by the law and rules of procedure for service of process.
1980 Amendment. This rule has been subdivided and amended to make it more easily understood. No change in the substance of the rule is intended. Subdivision (d) is partly derived from Federal Rule of Civil Procedure 70.
20__ Amendment. Subdivision (e) has been added to address legislative amendments to chapter 56, Florida Statutes (2016).
FORM 1.914(a). EXECUTION
To Each Sheriff of the State:
YOU ARE COMMANDED to levy on the property subject to execution of ………. in the sum of $.......... with interest at .....% a year from .....(date)....., until paid and to have this writ before the court when satisfied.
DATED on ................
(Name of Clerk)
As Clerk of the Court
As Deputy Clerk
NOTICE TO APPEAR
TO …..(name of third party).....
YOU ARE NOTIFIED that, pursuant to section 56.29, Florida Statutes, proceedings supplementary to satisfy a judgment by application of the following:.....(identify the property, debt, or other obligation due to the judgment debtor)..... in ……….County, Florida have been initiated against you by .....(name of judgment creditor)…… You are required to serve an affidavit .....date..... stating that the [property] [debt] [other obligation] belongs to you. The affidavit must include any fact or legal defense opposing the application of the [property] [debt] [other obligation] toward the satisfaction of the judgment on …..(name of the judgment creditor, or its attorney, and his/her/its address)……You must file the original affidavit with the clerk of this court either before service on the judgment creditor or immediately thereafter. Legal defenses need not be filed under oath but must be served contemporaneously with the affidavit.
If any of your property has been levied on and you choose to oppose the application of the property to be applied toward the satisfaction of the judgment, then you must furnish a bond with surety to be approved by the officer in favor of the judgment creditor. The amount of the bond must be double the value of the goods claimed as the value is fixed by the officer and conditioned to deliver said property on demand of said officer if it is adjudged to be the property of the judgment debtor and to pay the judgment creditor all damages found against you if it appears that the claim was interposed for the purpose of delay.
YOU HAVE A RIGHT TO A TRIAL BY JURY TO DETERMINE THE RIGHT TO THE [property, debt OR other obligation due to the judgment debtor]. You are entitled to discovery under the Florida Rules of Civil Procedure. IF THE COURT OR JURY DETERMINES THAT THE [property] [debt] [other obligation] BELONGS TO THE JUDGMENT DEBTOR AND IS SUBJECT TO APPLICATION TOWARD THE SATISFACTION OF its JUDGMENT, THEN YOU MAY BE ORDERED TO .....(PAY DAMAGES TO THE JUDGMENT CREDITOR or surrender the property OR OTHER OBLIGATION DUE TO THE JUDGMENT DEBTOR to the judgment creditor)……
ORDERED at ………., Florida, on..... (date) …..
AFFIDAVIT OF CLAIMANT IN RESPONSE TO NOTICE TO APPEAR
BEFORE ME, the undersigned authority, appeared…..(name of claimant or claimant’s agent)....., who, after being first duly sworn, deposes and states, under penalty of perjury:
1. I am the ……..(claimant, or identify relationship to claimant)……
2. I (or claimant) was served with a Notice to Appear on…..(date)……
3. I (or claimant) own(s) and am/is entitled to possession of…..(describe the property, debt, or other obligation due to the judgment debtor identified in the Notice to Appear)..…
4. This property should not be applied to satisfy the judgment because…..(state all reasons why the property, debt, or other obligation due to the judgment debtor identified in the Notice to Appear should not be applied to satisfy the judgment)……
5. (Select a or b)
a. I (or claimant) request(s) a trial by jury on all issues so triable.
b. I (or claimant) request(s) a non-jury trial on all issues.
FURTHER AFFIANT SAYETH NAUGHT.
Signature of Affiant
STATE OF ________________________________
COUNTY OF ______________________________
Sworn to or affirmed and signed before me on this ___ day of ____________________, 20___ by (name of affiant)_________________________, who is personally known to me or who has produced _____________________, as identification and who did take an oath.
NOTARY PUBLIC, STATE OF
.....(Print, Type or Stamp Commissioned Name of Notary Public) .....
1980 Amendment. The description of the property to be levied on has to be made general so it encompasses all property subject to execution under section 56.061, Florida Statutes (1979).
20__ Adoption. Form 1.914(c) is used by a claimant to respond to a Notice to Appear under section 56.29(2), Florida Statutes. Legal defenses need not be filed under oath, but must be served contemporaneously with the affidavit. If the claimant’s property has already been levied upon, he or she may obtain possession of the property by filing with the officer having the execution a copy of this affidavit and by furnishing the officer a bond with surety, as set forth in section 56.16, Florida Statutes.