Arrestable Offenses / Crimes under Fla. Stat. 319.28
S319.28 1b - PUBLIC ORDER CRIMES - VIOL OF DOC REQ FOR REPOSSESSED MOTOR VEHICLES - F: T
S319.28 2b - PUBLIC ORDER CRIMES - FAILURE TO DISCLOSE VEH SOLD WAS REPOSSESSED - F: T
CopyCited 35 times | Published | Court of Appeals for the Eleventh Circuit | 48 Collier Bankr. Cas. 2d 474, 48 U.C.C. Rep. Serv. 2d (West) 411, 2002 U.S. App. LEXIS 10827, 39 Bankr. Ct. Dec. (CRR) 186, 2002 WL 1270182
...l a vehicle. See Fla. Stat. §
319.22.6 If the
vehicle at issue has been repossessed or otherwise transferred by operation of law,
6
Fla. Stat. §
319.22 provides, in pertinent part:
Except as provided in §§
319.21 and
319.28, a person acquiring a
motor vehicle ....
...15
however, the statute provides an exception, allowing the party possessing the vehicle
to obtain a certificate of title from the Florida Department of Highway Safety and
Motor Vehicles (“Florida DMV”). See Fla. Stat. § 319.28(1)(a) (“In the event of a
transfer of ownership of a motor vehicle . . . by operation of law . . . whenever . . .
repossession is had . . ., the department may issue to the applicant a certificate of
title.”).7 In such a situation, the creditor may submit an affidavit announcing the
7
Fla. Stat. § 319.28, entitled “Transfer of ownership by operation of law,” provides:
In the event of a transfer of ownership of a motor vehicle or mobile home
by operation of law as upon inheritance, devise or bequest, order in...
...motor home, and upon payment of the fee prescribed by law and
presentation of an application for certificate of title, the department may
issue to the applicant a certificate of title thereto. . . .
Fla. Stat. § 319.28(1)(a) (emphases added). Section 319.28(2)(b) then provides:
In case of repossession of a motor vehicle or mobile home
pursuant to the terms of a security agreement or similar instrument,
an affidavit by the party to whom possession ha...
...If such notice is given and no
written protest to the department is presented by a subsequent
lienholder within 15 days from the date on which the notice was
16
repossession as “proof of ownership.” Fla. Stat. § 319.28(2)(b)....
...Proof of
the required notice to subsequent lienholders shall be submitted
together with regular title fees. A lienholder to whom a certificate
of repossession has been issued may assign the certificate of title
to the subsequent owner . . . .
Fla. Stat. § 319.28(2)(b) (emphases added).
8
Indeed, the Florida DMV has interpreted Fla. Stat. § 319.28 as providing “for the
transfer of ownership of a motor vehicle by operation of law, to include repossession of a motor
vehicle for non-fulfillment of a contract,” as long as the secured creditor has possession of the
vehicle....
...We are
unconvinced.
First, under the statute, title typically transfers upon repossession unless
affirmative steps are taken to block the transfer of title (not the other way around, as
the bankruptcy court found). In fact, the statute lessens the steps a repossessor must
take to obtain title. See Fla. Stat. § 319.28(2)(b) (allowing an affidavit to constitute
proof of ownership)....
...Normally, one can own a vehicle in Florida
without having a certificate of title to it, but an owner cannot transfer ownership of a
vehicle to a third party until the certificate of title is in his name. See Fla. Stat §
319.22. There is an exception to this rule: Under Fla. Stat. §
319.28(2)(b), a
18
lienholder that has repossessed a vehicle need not obtain a certificate of title in its
name to transfer title, but instead can obtain a certificate of repossession from either
the tax collector or the Florida DMV....
...s
determination, own a vehicle without a certificate of title or a certificate of
repossession in its name.
The Debtors nonetheless argue that because the Creditors recognize that one can
own property without having marketable title to it, § 319.28 must concern only the
procedure to obtain marketable title, and cannot be relied on as the substantive law
governing ownership....
...Instead, the Debtors say, other substantive law, like the UCC,
should be consulted to determine when ownership transfers.
20
We remain unpersuaded. Although marketable title is only evidence of
ownership, § 319.28 squarely recognizes that an event of transfer of ownership is
repossession. See Fla. Stat. § 319.28(1)(a) (“In the event of the transfer of ownership
of a motor vehicle ....
...when presentation of satisfactory proof
to the department of ownership . . . and upon payment of the fee . . . and presentation
of an application for certificate of title, the department may issue to the applicant a
certificate of title thereto.”). In fact, § 319.28(2)(b) states that: “In case of repossession
of a motor vehicle ....
...., an affidavit
by the party to whom possession has passed stating that the vehicle . . . was
repossessed upon default in the terms of the security agreement . . . shall be
considered satisfactory proof of ownership.” At a bare minimum, then, §
319.28
recognizes when ownership transfers, which in this circumstance is upon repossession.
Moreover, there is no other substantive law that establishes when ownership
transfers. The UCC recognizes repossession, but does not discuss who owns the
repossessed property and does not refer to title at all. Therefore, where no other
substantive law on the transfer of ownership exists, and §
319.28 recognizes
ownership transfer upon repossession, we rely on §
319.28 to speak to the issue.
Fourth, if the Florida legislature did not recognize repossession as one event
21
that effects an ownership change before the Florida DMV issues a title, the inclusion
of repossession in the Fla. Stat. §
319.28 exception to §
319.22 would make no sense.9
This exception evinces an intention to carve repossession and other “transfers of
ownership by operation of law” out of the certificate of title requirement, signifying
that such transfer...
...sessed vehicles.10 Not only is a
certificate of title unnecessary to establish ownership, but Chapter 319 explicitly
recognizes repossession as a transfer of ownership. Indeed, the plain language of the
9
The Debtors respond that § 319.28 functions only as a procedural protection for a
debtor’s ownership interest in a repossessed vehicle. Otherwise, they argue, if § 319.28 made a
secured creditor the owner upon repossession, the statute’s procedural protections for the
debtor’s post-repossession interest in the vehicle are rendered meaningless....
...But, as we have noted already, the debtor’s right to redeem the
repossessed vehicle is insufficient to pull the vehicle itself into the debtor’s estate.
10
The Kalter district court also disagreed with the Chiodo bankruptcy court, albeit on
different grounds. The district court relied on: (1) §
319.28(2)(b)’s labeling of the debtor as the
“former owner” of the repossessed vehicle; and (2) Johnson v. Aetna,
472 So. 2d 859 (Fla. Dist.
Ct. App. 1985) (recognizing that a judgment of dissolution, conveying a vehicle to the wife
without officially transferring title, made the wife legal owner of the vehicle by operation of law
under Fla. Stat. §
319.28), to hold that ownership transfers upon repossession....
...1982) (recognizing that this Court may affirm a district court
decision on reasoning other than that relied on by the district court).
22
statute even refers to an affidavit describing the repossession event as being “proof of
ownership.” Fla. Stat. § 319.28....
...Moreover, Florida case law holds that a certificate
of title is merely evidence of, and is not a requirement of, establishing ownership;
thus, the fact that the Creditors in these cases had not yet obtained certificates of title
or certificates of repossession is insignificant.11 We conclude, therefore, that Fla. Stat.
§ 319.28 recognizes that ownership passes when the creditor repossesses the vehicle.
Accordingly, we affirm the judgment of the district court in both cases, and
hold that the vehicles repossessed prepetition were not “property of the [De...
CopyCited 8 times | Published | Supreme Court of Florida | 1952 Fla. LEXIS 1628
...Conceivably, had the matter been pursued with patience and perseverance it would have been discovered that the mortgage was recorded in Spartanburg, South Carolina, the law of that state providing that such liens be recorded in the counties. The car bore license plates of that state. Under Section 319.28, Florida Statutes 1949, and F.S.A., the commissioner, in certain instances irrelevant here, may upon surrender of a prior title certificate or submission of satisfactory proof of ownership issue to an appellant a certificate of title showing liens or the absence of them....
CopyCited 6 times | Published | District Court, M.D. Florida | 43 U.C.C. Rep. Serv. 2d (West) 1003, 2000 U.S. Dist. LEXIS 20521, 2000 WL 1881807
...reditor, Hall Motors, at the time of repossession. Because the Lewis case was decided under Alabama law, the Appellees in this case contend that Lewis is not a precedent to be followed in cases arising in Florida. However, the law in Florida Statute Section 319.28(1)(b) makes it clear that upon repossession, the party from whom the vehicle has been repossessed is the "former owner" [7] ....
...Gerald maintains that his continued `naked' title exposed him to liability for negligent use of the car, which provides an insurable interest sufficient to allow recovery of the UM benefits. We disagree. First, the judgment of dissolution made Joyce the legal owner of the Toyota by operation of law. See Section 319.28, Fla.Stat....
...the automobile. . . . Consequently, it was Joyce, and not Gerald, who had an insurable interest in the risk arising from the use of the Toyota." Johnson v. Aetna, id., at 861 [n. 3]. As referenced above, the Florida courts construed Florida Statutes Section
319.28 as causing ownership to pass, regardless of the fact that formal title had not yet transferred pursuant to Florida Statutes Section
319.22, .23, or .28....
...e addressing title." Iferd at 503. This Court agrees with the Credit Union's position that the UCC does not operate to cause title to pass to the Credit Union in this case, but that the Florida Statutes governing title, specifically Florida Statutes 319.28 does....
...There is a written notation next to that stamped denial "lack of prosecution". The denial is dated 11/2/99. [6] Appellant thereafter withdrew its prior appeal of the Bankruptcy Order requiring turnover of the vehicle (Case No. 6:99-CV-952-Orl-19B) on the basis that it was premature in nature. [7] Florida Statute 319.28(1)(b) reads as follows: "In case of repossession of a motor vehicle or mobile home pursuant to the terms of a security agreement or similar instrument, an affidavit by the party to whom possession has passed stating that the vehicle or mobile...
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 1741, 1985 Fla. App. LEXIS 15002
...Gerald maintains that his continued "naked" title exposed him to liability for negligent use of the car, which provides an insurable interest sufficient to allow recovery of the UM benefits. We disagree. First, the judgment of dissolution made Joyce the legal owner of the Toyota by operation of law. See § 319.28, Fla....
CopyCited 5 times | Published | United States Bankruptcy Court, M.D. Florida | 13 Fla. L. Weekly Fed. B 246, 2000 Bankr. LEXIS 734, 2000 WL 943830
...These statutes apply to secured collateral generally, not exclusively motor vehicles. When a car is at issue, Florida has enacted specific legislation addressing ownership, title, and transfer of repossessed motor vehicles. Florida Statute
319.22 provides in pertinent part: (1) Except as provided in §§
319.21 and
319.28, a person acquiring a motor vehicle......
...For a court to recognize the "right, title, claim, or interest of any person in or to any motor vehicle...sold, disposed of, mortgaged, or encumbered" such person must have valid certificate of title issued to them. Fla. Stat.
319.22(1). One relevant exception to this rule is contained in Section
319.28 of the Florida Statutes, which provides in pertinent part: (1)(a) In the event of the transfer of ownership of a motor vehicle or mobile home...by repossession is had upon default in performance of the terms of a security agreement...a...
...haser. A creditor's right to sell a repossessed car does not equal complete ownership. The former owner remains the legal owner for title purposes until a new certificate of title is issued. If title transfer was automatic, the provisions in Chapter 319.28 would have no meaning....
...Certainly, Chapter 319 makes title to motor vehicles controlling as to the legal rights of the various parties. Thus, where Florida Statute 679.504 provides for the disposal of repossessed collateral, the statute is modified and enhanced by the requirements of Florida Statute 319.28, which requires certain procedures for effectuating disposal of repossessed motor vehicles....
CopyCited 4 times | Published | United States Bankruptcy Court, N.D. Florida | 12 Fla. L. Weekly Fed. B 41, 37 U.C.C. Rep. Serv. 2d (West) 1209, 1998 Bankr. LEXIS 1223, 1998 WL 678113
...Statutes §
319.22. Chapter 319 of Florida Statutes takes precedence over any inconsistent provisions of the UCC. See Correria v. Orlando Bank & Trust Co.,
235 So.2d 20, 24 n. 2 (Fla.App.1970). Under §
319.22, Except as provided in . . . [section]
319.28, a person acquiring a motor vehicle ....
....: nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title or an assignment of such certificate for such motor vehicle . . . for a valuable consideration. FLA. STAT. §
319.22. Under §
319.28(2)(b), In the case of repossession of a motor vehicle ....
...by the party to whom possession has passed stating that the vehicle . . . was repossessed upon default in the terms of the security agreement or other instrument shall be considered satisfactory proof of ownership and right of possession. FLA. STAT. § 319.28(2)(b)....
...Daly's Inc.,
528 So.2d 106, 107 (Fla. 4th DCA 1988) (finding a substantial issue of material fact as to whether a purported owner owned the truck, notwithstanding the fact that the title certificate was not in his name). There is no Florida case law on point with regard to §
319.28. However, since courts have held that §
319.22 deals only with marketability of title. I shall construe §
319.28 as also affecting marketability and not validity of title....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2004 WL 1799771
...that Florida Rule of Civil Procedure 1.420(b) required the court to approve the dismissal. The DHSMV argued that the case should be dismissed because the truck had been returned to the lienholder, which had issued an affidavit of repossession under section 319.28, Florida Statutes (2002)....
CopyCited 3 times | Published | United States Bankruptcy Court, M.D. Florida | 2001 Bankr. LEXIS 1042, 2001 WL 845371
...d with the foreclosure sale of a vehicle repossessed from a debtor prepetition. See id. at 411. The bankruptcy court found that a debtor maintains an interest in a repossessed vehicle until a new certificate of title is issued under Florida Statutes § 319.28....
...§ 541, and a creditor may not be granted relief to sell such vehicle if the creditor is adequately protected. See id. The bankruptcy court based its holding on the fact that the procedures for transfer of title of a repossessed vehicle outlined in § 319.28 would be meaningless if title passed completely to the repossessing creditor upon repossession....
...The district court found that, under Florida law, a debtor has no interest in a vehicle repossessed prepetition because title to a vehicle passes completely to a repossessing creditor upon repossession, notwithstanding the procedure to obtain a new certificate of title found in § 319.28....
...Therefore, the district court concluded, a vehicle repossessed prepetition in Florida is not property of the estate under § 541, and a creditor may not be obliged to return such vehicle to debtor. See id. The district court based its holding on the fact that § 319.28 refers to a debtor whose vehicle is repossessed as the "former owner" of the vehicle....
...See id. The district court found that the phrase "former owner" indicated that title to a repossessed vehicle passed immediately and completely to the repossessing creditor upon repossession, rather than after the title transfer procedures outlined in § 319.28 were complete....
...The rule of Ratliff The Court respectfully disagrees with the district court in Kalter. Under this Court's interpretation of Florida law, a debtor's ownership interest in a repossessed vehicle survives until a new certificate of title is issued pursuant to § 319.28....
...a violation of the automatic stay." [4] Id. *764 The Court finds the reasoning of the district court in Kalter unpersuasive, and sees no reason to retreat from its holding in Ratliff and its endorsement of the bankruptcy court's logic in Chiodo. [5] Section 319.28 functions as procedural protection for a debtor's ownership interest in a vehicle that has been repossessed. "Only after all of [the § 319.28] conditions are met can the creditor with a repossessed vehicle obtain a new certificate of title and conclude a sale of the car." Chiodo, 250 B.R....
..."The former owner maintains an ownership interest in the repossessed car up to the entry of the [new] certificate of title." Id. The Kalter court ignored the Florida legislature's intimation of a post-repossession ownership interest and in so doing rendered the procedural protections of § 319.28 meaningless; why should a creditor go through the bother of erasing a debtor's ownership interest from a vehicle's title via § 319.28 when the debtor's ownership interest was extinguished by repossession? This Court will not interpret § 319.28 so as to render it superfluous and ineffective. The Florida legislature's unfortunate choice of the phrase "former owner" to describe a debtor whose vehicle is repossessed does not alone justify ignoring the assumptions and intent behind § 319.28....
...f maintained an interest in the vehicle on the petition date despite the prepetition repossession by Defendant. Defendant did not complete prepetition the essential steps necessary to erase Plaintiff's ownership interest from the vehicle's title per § 319.28....
CopyCited 3 times | Published | United States Bankruptcy Court, S.D. Florida. | 14 Fla. L. Weekly Fed. B 322, 2001 Bankr. LEXIS 870
...*779 The District Court for the Middle District of Florida in Kalter found that the law enunciated in the Lewis decision is applicable to interpretation of Florida law. See In re Kalter,
257 B.R. at 96. In so ruling, the District Court found particular support in the language of Florida Statute §
319.28(1)(b) referring to the party from whom the vehicle has been repossessed as the "former owner." See id. The court concluded that under Florida Statute §
319.28, the act of repossession causes ownership of a motor vehicle to pass, regardless of the fact that formal title to the vehicle is not transferred pursuant to Florida Statutes §§
319.22, .23, or.28....
CopyCited 3 times | Published | United States Bankruptcy Court, M.D. Florida | 15 Fla. L. Weekly Fed. B 35, 2001 Bankr. LEXIS 1358, 2001 WL 1265803
...Prior to the filing of the debtors' bankruptcy petition, the creditor repossessed the vehicle. The bankruptcy court found that the vehicle was property of the estate and granted the debtors' emergency motion for turnover of the vehicle. The creditor appealed to the district court. Relying upon § 319.28 of the Florida Statutes which deals with the transfer of ownership of a motor home or motor vehicle by operation of law, the court concluded that title to the vehicle passed to the creditor upon repossession, making the debtors nothing more than the "former owners" of the vehicle....
...407 (Bankr.M.D.Fla.2000). The Court noted that §
319.22 of the Florida Statutes requires the issuance of a certificate of title to effectuate the transfer of a motor vehicle and to confer marketable title. The court recognized the exception embodied by §
319.28(2)(b), which enables a creditor to repossess and even sell a vehicle prior to the issuance of a new certificate of title....
...sufficient to render the vehicle property of the estate." Id. at 412-413. [5] The Court respectfully disagrees with the district court decisions in Kalter and Chiodo. The Court is not persuaded by Kalter's reliance on the "former owner" language in §
319.28 as support for its holding that repossession alone causes title and ownership to pass to the repossessing creditor. Such a holding renders the procedural protections contained in §
319.28 meaningless. In re Ratliff,
260 B.R. 526, 530 (Bankr.M.D.Fla.2000). "[W]hy should a creditor go through the bother of erasing a debtor's ownership interest from a vehicle's title via §
319.28 when the debtor's ownership interest was extinguished by repossession?" Id....
...The Court agrees with the Chiodo bankruptcy court's holding that a debtor retains an ownership interest sufficient to constitute property of the estate in a repossessed vehicle until the repossessing creditor obtains a new certificate of title pursuant to Fla.Stat. § 319.28....
...[8] The court finds it appropriate to deny Creditor's Motion to Strike because Creditor did not satisfy its burden of proving that leave should not have been granted. CONCLUSION Because Creditor did not obtain a new certificate of title pursuant to Fla.Stat. § 319.28 prior to the filing of Debtors' bankruptcy petition, Debtors retained an ownership interest in the vehicles sufficient to render them property of the estate under § 541 of the Bankruptcy Code....
...minutes reviewing Creditor's supplemental brief, 30 minutes preparing a supplemental brief, 30 minutes preparing the Motion for Sanctions, and 30 to 45 minutes preparing Motion to Strike Notice of Supplemental Authority. [2] Although Kalter cites to § 319.28(1)(b), the text to which the court refers is actually that of § 319.28(2)(b). Section 319.28(2)(b) provides as follows: In case of repossession of a motor vehicle or mobile home pursuant to the terms of a security agreement or similar instrument, an affidavit by the party to whom possession has passed stating that the vehicle...
CopyCited 2 times | Published | United States Bankruptcy Court, S.D. Florida. | 15 Fla. L. Weekly Fed. B 139, 48 Collier Bankr. Cas. 2d 1276, 2002 Bankr. LEXIS 383, 39 Bankr. Ct. Dec. (CRR) 122
...In In re Kalter, the District Court for the Middle District of Florida found that the law enunciated in the Lewis decision is applicable to interpretation of Florida law. See In re Kalter,
257 B.R. at 96. In so ruling, the district court found particular support in the language of Florida Statute §
319.28(1)(b) referring to the party from whom the vehicle has been repossessed as the "former owner." See id. The court concluded that under Florida Statute §
319.28, the act of repossession causes ownership of a motor vehicle to pass, regardless of the fact that formal title to the vehicle is not transferred pursuant to Florida Statutes §§
319.22, .23, or .28....
...526, 530 (Bankr.M.D.Fla.2000); In re Chiodo,
250 B.R. 407, 412 (Bankr.M.D.Fla.2000). Respectfully, this Court disagrees with the holdings in Ragan and Kalter; the Court finds the holdings in the line of cases beginning with Chiodo more persuasive. At the crux of this dispute is Florida Statutes §
319.28 which deals with the transfer of ownership of a motor vehicle....
...and upon the surrender of the prior certificate of title or, when that is not possible, presentation of satisfactory proof to the department of ownership and right of possession to such motor vehicle or mobile home, . . . the department may issue to the applicant a certificate of title thereto. Fla. Stat. § 319.28(1)(a) (1999)(emphasis added). Also at issue, § 319.28(2)(b) states in relevant part that: In case of repossession of a motor vehicle or mobile home pursuant to the terms of a security agreement or similar instrument, an affidavit by the party to whom possession has passed stating that the vehi...
...A lienholder to whom a certificate of repossession has been issued may assign the certificate of title to the subsequent owner. Any person found guilty of violating any requirements of this paragraph shall be guilty of a felony of the third degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. Fla. Stat. §
319.28(2)(b) (1999)(emphasis added). The Creditor argues that the language of §
319.28 is clear, and therefore the Court should not engage in statutory construction. The Creditor asserts that the "former owner" language of §
319.28(2)(b) indicates the legislature's intent for the passage of substantive rights to be self-executing. Additionally, the Creditor argues that the plain language of §
319.28(1)(a) suggests that a judicial replevin order constitutes a transfer of ownership by operation of law....
...The fact that the statute refers to the debtor as being the "former owner" is not dispositive. Under this Court's interpretation of Florida law, a debtor's ownership interest in a repossessed vehicle survives until a new certificate of title has been issued pursuant to § 319.28....
...utes "as to avoid an unreasonable or absurd result." Allstate Ins. Co. v. Rush,
777 So.2d 1027, 1032 (Fla. 4th DCA 2000). To hold that a debtor is divested of all ownership rights prior to the issuance of a new certificate of title would render *705 §
319.28 "superfluous and ineffective." In re Baker,
264 B.R. at 764. Florida Statutes §
319.28 is poorly drafted. Section
319.28(1)(a) presupposes that there has already been a transfer of ownership. Nowhere in Florida law, however, does it state that a transfer of ownership occurs before the procedure for the issuance of a new certificate of title has been followed. Section
319.28 functions as a procedural safeguard for a debtor's ownership interest in a vehicle that has been repossessed. See id. "Only after all of [the §
319.28] conditions are met can the creditor with a repossessed vehicle obtain a new certificate of title and conclude a sale of the car." Id....
..."The former owner maintains an ownership interest in the repossessed car up to the entry of the [new] certificate of title." Id. (quoting Chiodo,
250 B.R. at 411.) The Court is even less persuaded by the argument that the "former owner" language of §
319.28(2)(b) is indicative of a transfer in ownership. "The Florida legislatures unfortunate choice of the phrase `former owner' to describe a debtor whose vehicle is repossessed does not alone justify ignoring the assumptions and intent behind §
319.28." Id. The Creditor also argues that judicial replevin is somehow treated legally different than self-help repossession under §
319.28(1)(a). The Court finds no support for this argument. A plain reading of §
319.28(1)(a) reveals that replevin and repossession are considered of equal significance when determining when a certificate of title may be issued to a creditor....
CopyCited 1 times | Published | United States Bankruptcy Court, S.D. Florida. | 22 Fla. L. Weekly Fed. B 165, 70 U.C.C. Rep. Serv. 2d (West) 85, 2009 Bankr. LEXIS 3332
...After a rigorous exploration of the foregoing statutes, Kalter found that while the Florida UCC does not address the issue of ownership of repossessed collateral, the Florida Certificate of Title statute does. In re Kalter,
292 F.3d at 1353. Specifically, the court held that Fla. Stat. §
319.28(2)(b) expressly recognizes that ownership transfers to the secured creditor upon repossession since the statute states in relevant part: In case of repossession of a motor vehicle......
...pursuant to the terms of a security agreement ..., an affidavit by the party to whom possession has passed stating that the vehicle ... was repossessed upon default in the terms of the security agreement ... shall be satisfactory proof of ownership. In re Kalter,
292 F.3d at 1358 (quoting Fla.Stat. §
319.28(2)(b))....
...Finally, Kalter does not stand for the proposition, as suggested in Nolan, that Florida's title-clearing statute relieves a creditor of its duties under Article 9. Rather, as stated earlier, the court looked to Florida's Certificate of Title statute for its explicit recognition in § 319.28(2)(b) that ownership of collateral transfers to secured *905 creditor upon repossession....
CopyCited 1 times | Published | United States Bankruptcy Court, S.D. Florida. | 51 Collier Bankr. Cas. 2d 428, 17 Fla. L. Weekly Fed. B 1, 52 U.C.C. Rep. Serv. 2d (West) 286, 2003 Bankr. LEXIS 1573
...eral. [6] Finding that Florida's UCC did not determine ownership interests in a repossessed vehicle, the Eleventh Circuit turned to Florida's Title Certificate Statute. The Court found that "[a]lthough marketable title is only evidence of ownership, §
319.28 [7] recognizes that" repossession is an event of transfer of ownership. Kalter,
292 F.3d at 1359 (emphasis in original). Florida Statutes §
319.28(2)(b) provides that "[i]n case of repossession of a motor vehicle ....
...icle to the debtor). [6] See Robert B. Chapman, Bankruptcy, 53 Mercer L.Rev. 1199, 1233(2002) suggesting that this analysis is called into doubt by Revised Article Nine's new definition of "debtor" which excludes the secured creditor. [7] Fla. Stat. § 319.28 is titled, Transfer of Ownership by Operation of Law....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2012 Fla. App. LEXIS 14627, 2012 WL 3758626
...ng as elusive as one’s after-the-fact characterization of his or her subjective belief. The form application for title is mandated by law and given under penalty *145 of perjury. One must swear that he or she is the owner of a car to obtain title. § 319.28, Fla....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 2008 Bankr. LEXIS 3992, 2008 WL 5784517
...ship, title, and transfer. Kalter pointed out that §
319.22 [1] of the Florida Statutes generally provides that a certificate of title is required in order to obtain marketable title to sell a vehicle. The statute provides an exception (embodied in §
319.28(1)) [2] for a vehicle which has been transferred by operation of law, permitting the party possessing *894 the vehicle to obtain a certificate of title from the Florida Department of Highway Safety and Motor Vehicles (the "Florida DMV"). Section
319.28(2)(b) [3] provides that in the case of repossession of a motor vehicle, an affidavit by the repossessing party stating that the vehicle was repossessed upon a default in the terms of the security agreement "shall be considered satisfac...
...ion." The Kalter court found that such language was an express recognition by the statute that ownership transfers upon repossession. Id. at 1358. Citing to TL-23(I) of the the DMV Procedures Manual [4] , the court noted that the DMV has interpreted § 319.28 as "providing `for the transfer of ownership of a motor vehicle by operation of law, to include repossession of a motor vehicle for non-fulfillment of a contract,' as long as the secured creditor has possession of the vehicle." Id....
...The court held that the debtor's ownership interest in the vehicle transferred by operation of law and was therefore not property of the debtor's bankruptcy estate. Id. at 1360. Red Door argues that Kalter controls the case at bar because execution, like repossession, is one of the events set forth in § 319.28 which transfers ownership of a motor vehicle by operation of law....
...The Court reads the statute to transfer ownership upon an execution sale, not upon the execution itself. Unlike Section TL-23 of the DMV Procedures Manual, Section TL-22, titled Application for Certificate of Title for a Motor Vehicle Purchased from a Sheriff's Sale, does not interpret § 319.28(1)(a) to provide for transfer by operation of law of ownership of a vehicle which was been seized by a sheriff pursuant to a writ of execution....
...s Order. 3. In the event the above sum is not paid within the time specified above, upon a motion by debtor the Court will enter a judgment upon which execution will issue. NOTES [1] Fla. Stat.
319.22(1) provides: Except as provided in ss
319.21 and
319.28, a person acquiring a motor vehicle or mobile home from the owner thereof, whether or not the owner is a licensed dealer, shall not acquire marketable title to the motor vehicle or mobile home until he or she has had issued to him or her a cer...
...or interest of any person in or to any motor vehicle or mobile home sold, disposed of, mortgaged, or encumbered, unless evidenced by a certificate of title duly issued to that person, in accordance with the provisions of this chapter. [2] Fla. Stat. 319.28(1)(a) provides: In the event of the transfer of ownership of a motor vehicle or mobile home by operation of law as upon inheritance, devise or bequest, order in bankruptcy, insolvency, replevin, attachment, execution, or other judicial sale or...
...t of possession to such motor vehicle or mobile home, and upon payment of the fee prescribed by law and presentation of an application for certificate of title, the department may issue to the applicant a certificate of title thereto. [3] Fla. Stat. 319.28(2)(b) provides in pertinent part: In case of repossession of a motor vehicle or mobile home pursuant to the terms of a security agreement or similar instrument, an affidavit by the party to whom possession has passed stating that the vehicle o...
CopyPublished | United States Bankruptcy Court, M.D. Florida | 15 Fla. L. Weekly Fed. B 242, 2001 Bankr. LEXIS 2028, 2001 WL 34019529
...al, concluded that while the UCC grants the secured party the right to repossess the collateral upon default, it contains no language concerning the passage of title, unlike the Florida Statute which does. The Statute under consideration is entitled 319.28 Transfer of ownership by operation of law....
...There is nothing in this record at this time that indicates when the automobile was repossessed. This being the case, it is crucial to determine the time of the repossession. Once that is established, it will determine the rights to the collateral of the Debtors and the repossessing creditors by virtue of Fla.Stat. 319.28(b)....
CopyPublished | United States Bankruptcy Court, M.D. Florida
for transfers by operation of law, in Fla. Stat §
319.28, which include transfers by “inheritance, devise
CopyPublished | United States Bankruptcy Court, M.D. Florida | 18 Fla. L. Weekly Fed. B 319, 60 U.C.C. Rep. Serv. 2d (West) 1316, 54 Collier Bankr. Cas. 2d 1517, 2005 Bankr. LEXIS 1332, 2005 WL 1719306
...The Court found the former UCC "notably silent on the issue of ownership, providing th[e] Court with no guidance as to who owned the Debtors' vehicles upon repossession." Id. at 1354. The Court then looked to Florida's Title Certificate Statute and concluded under Fla. Stat. § 319.28, titled "Transfer of Ownership by Operation of Law", "ownership passes when the creditor repossesses the vehicle." Id....
