679.608 Application of proceeds of collection or enforcement; liability for deficiency and right to surplus. - Florida Statutes

679.608 Application of proceeds of collection or enforcement; liability for deficiency and right to surplus.

   (1) If a security interest or agricultural lien secures payment or performance of an obligation, the following rules apply:

   (a) A secured party shall apply or pay over for application the cash proceeds of collection or enforcement under s. 679.607 in the following order to:

   1. The reasonable expenses of collection and enforcement and, to the extent provided for by agreement and not prohibited by law, reasonable attorney’s fees and legal expenses incurred by the secured party;

   2. The satisfaction of obligations secured by the security interest or agricultural lien under which the collection or enforcement is made; and

   3. The satisfaction of obligations secured by any subordinate security interest in or other lien on the collateral subject to the security interest or agricultural lien under which the collection or enforcement is made if the secured party receives an authenticated demand for proceeds before distribution of the proceeds is completed.

   (b) If requested by a secured party, a holder of a subordinate security interest or other lien shall furnish reasonable proof of the interest or lien within a reasonable time and agree to indemnify the secured party on reasonable terms acceptable to the secured party for damages, including reasonable attorney’s fees and costs, incurred or suffered by the secured party if the subordinate holder did not have the right to receive the amounts to be paid to it. Unless the holder complies, the secured party need not comply with the holder’s demand under subparagraph (a)3.

   (c) A secured party need not apply or pay over for application noncash proceeds of collection and enforcement under s. 679.607 unless the failure to do so would be commercially unreasonable. A secured party that applies or pays over for application noncash proceeds shall do so in a commercially reasonable manner.

   (d) A secured party shall account to and pay a debtor for any surplus, and the obligor is liable for any deficiency.

   (2) If the underlying transaction is a sale of accounts, chattel paper, payment intangibles, or promissory notes, the debtor is not entitled to any surplus, and the obligor is not liable for any deficiency.

   (3) If the secured party in good faith cannot determine the validity, extent, or priority of a subordinate security interest or other lien or there are conflicting claims of subordinate interests or liens, the secured party may commence an interpleader action with respect to remaining proceeds in excess of $2,500 in the circuit or county court, as applicable based upon the amount to be deposited, where the collateral was located or collected or in the county where the debtor has its chief executive office or principal residence in this state, as applicable. If authorized in an authenticated record, the interpleading secured party is entitled to be paid from the remaining proceeds the actual costs of the filing fee and an attorney’s fee in the amount of $250 incurred in connection with filing the interpleader action and obtaining an order approving the interpleader of funds. The debtor in a consumer transaction may not be assessed for the attorney’s fees and costs incurred in the interpleader action by the holders of subordinate security interests or other liens based upon disputes among said holders, and a debtor in a transaction other than a consumer transaction may only recover such fees and costs to the extent provided for in an authenticated record. If authorized in an authenticated record, the court in the interpleader action may award reasonable attorney’s fees and costs to the prevailing party in a dispute between the debtor and a holder of a security interest or lien which claims an interest in the remaining interplead proceeds, but only if the debtor challenges the validity, priority, or extent of said security interest or lien. Except as provided in this subsection, a debtor may not be assessed attorney’s fees and costs incurred by any party in an interpleader action commenced under this section.

History. s. 7, ch. 2001-198.