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F.S. 817.535 on Google Scholar

F.S. 817.535 on Casetext

Amendments to 817.535


The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B)
Title XLVI
CRIMES
Chapter 817
FRAUDULENT PRACTICES
View Entire Chapter
F.S. 817.535 Florida Statutes and Case Law
817.535 Unlawful filing of false documents or records against real or personal property.—
(1) As used in this section, the term:
(a) “File” means to present an instrument for recording in an official record or to cause an instrument to be presented for recording in an official record.
(b) “Filer” means the person who presents an instrument for recording in an official record or causes an instrument to be presented for recording in an official record.
(c) “Instrument” means any judgment, mortgage, assignment, pledge, lien, financing statement, encumbrance, deed, lease, bill of sale, agreement, mortgage, notice of claim of lien, notice of levy, promissory note, mortgage note, release, partial release or satisfaction of any of the foregoing, or any other document that relates to or attempts to restrict the ownership, transfer, or encumbrance of or claim against real or personal property, or any interest in real or personal property.
(d) “Official record” means the series of instruments, regardless of how they are maintained, which a clerk of the circuit court, or any person or entity designated by general law, special law, or county charter, is required or authorized by law to record. The term also includes a series of instruments pertaining to the Uniform Commercial Code filed with the Secretary of State or with any entity under contract with the Secretary of State to maintain Uniform Commercial Code records and a database of judgment liens maintained by the Secretary of State.
(e) “Public officer or employee” means, but is not limited to:
1. A person elected or appointed to a local, state, or federal office, including any person serving on an advisory body, board, commission, committee, council, or authority.
2. An employee of a state, county, municipal, political subdivision, school district, educational institution, or special district agency or entity, including judges, attorneys, law enforcement officers, deputy clerks of court, and marshals.
3. A state or federal executive, legislative, or judicial officer, employee, or volunteer authorized to perform actions or services for any state or federal executive, legislative, or judicial office, or agency.
4. A person who acts as a general or special magistrate, auditor, arbitrator, umpire, referee, hearing officer, or consultant to any state or local governmental entity.
5. A person who is a candidate for public office or judicial position.
(2)(a) A person who files or directs a filer to file, with the intent to defraud or harass another, any instrument containing a materially false, fictitious, or fraudulent statement or representation that purports to affect an owner’s interest in the property described in the instrument commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) A person who violates paragraph (a) a second or subsequent time commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) If a person is convicted of violating subsection (2) and the owner of the property subject to the false instrument is a public officer or employee, the offense shall be reclassified as follows:
(a) In the case of a felony of the third degree, to a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) In the case of a felony of the second degree, to a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4)(a) If a person is convicted of violating subsection (2) and the person committed the offense while incarcerated in a jail or correctional institution or while participating in a pretrial diversion program under any form of pretrial release or bond, on probation or parole, or under any postrelease supervision, the offense shall be reclassified as follows:
1. In the case of a felony of the third degree, to a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
2. In the case of a felony of the second degree, to a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If a person’s offense has been reclassified pursuant to this subsection, the sentencing court shall issue a written finding that the offense occurred while incarcerated in a jail or correctional institution and direct that a copy of the written finding and judgment of conviction be forwarded to the appropriate state institution or county facility for consideration of disciplinary action and forfeiture of all gain-time or any early release credits accumulated up to the date of the violation.
(5) If the person is convicted of violating subsection (2) and the owner of the property covered by the false instrument incurs financial loss as a result of the instrument being recorded in the official record, including costs and attorney fees incurred in correcting, sealing, or removing the false instrument from the official record as described herein, the offense shall be reclassified as follows:
(a) In the case of a felony of the third degree, to a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) In the case of a felony of the second degree, to a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(6) A person who fraudulently records a claim of lien in the official records pursuant to part I of chapter 713 is subject to the fraud provisions of s. 713.31 and not this section.
(7) If a person is convicted of violating this section, the sentencing court shall issue an order declaring the instrument forming the basis of the conviction null and void and may enjoin the person from filing any instrument in an official record absent prior review and approval for filing by a circuit or county court judge. The sentencing court may also order the instrument forming the basis of the conviction sealed from the official record and removed from any applicable electronic database used for recording instruments in the official record.
(8)(a) Any person adversely affected by an instrument filed in the official record which contains a materially false, fictitious, or fraudulent statement or representation has a civil cause of action under this section without regard to whether criminal charges are pursued under subsection (2). A notice of lis pendens in accord with s. 48.23 shall be filed which specifically describes the instrument under challenge and the real or personal property affected by the instrument.
(b) Upon a finding that the instrument contains a materially false, fictitious, or fraudulent statement or representation such that the instrument does not establish a legitimate property or lien interest in favor of another person:
1. The court shall determine whether the entire instrument or certain parts thereof are null and void ab initio. If the court finds the instrument void in its entirety, it may order the instrument sealed from the official record and removed from any electronic database used for indexing or locating instruments in the official record. The court may also, permanently or for a period of time, enjoin the defendant who filed the instrument or who directed the filer to file the instrument from filing or directing a person to file an instrument in the official records without prior review and approval for filing by a circuit or county court judge, provided that as to third parties who may have given value for an interest described or granted by any instrument filed in violation of the injunction, the instrument shall be deemed validly filed and provides constructive notice, notwithstanding any failure to comply with the terms of the injunction.
2. Upon a finding of intent to defraud or harass, the court or jury shall award actual damages and punitive damages, subject to the criteria in s. 768.72, to the person adversely affected by the instrument. The court may also levy a civil penalty of $2,500 for each instrument determined to be in violation of subsection (2).
3. The court may grant such other relief or remedy that the court determines is just and proper within its sound judicial discretion.
(c) The prevailing party in such a suit is entitled to recover costs and reasonable attorney fees.
(d) The custodian of any official record shall, upon payment of appropriate fees, provide a certified copy of the sealed instrument to the party seeking relief under this section for use in subsequent court proceedings; in addressing or correcting adverse effects upon the person’s credit or property rights, or reporting the matter for investigation and prosecution; or in response to a subpoena seeking the instrument for criminal investigative or prosecution purposes.
(e) Upon request, the custodian of any official record shall, upon payment of appropriate fees, provide a certified copy of the sealed instrument to any federal, state, or local law enforcement agency.
(f) If feasible, the custodian of the official record where the instrument is recorded shall record any court order finding that the instrument is null and void in its entirety or in certain parts thereof.
(g) An instrument removed from an electronic database used for recording instruments in the public record pursuant to this section shall be maintained in a manner in which the instrument can be reduced to paper form.
(9) A government agency may provide legal representation to a public officer or employee if the instrument at issue appears to have been filed to defraud or harass the public officer or employee in his or her official capacity. If the public officer or employee is the prevailing party, the award of reasonable attorney fees shall be paid to the government agency that provided the legal representation.
(10) This section does not apply to the procedures for sealing or expunging criminal history records as provided in chapter 943.
History.—s. 1, ch. 2013-228.

Statutes updated from Official Statutes on: March 07, 2023
F.S. 817.535 on Google Scholar

F.S. 817.535 on Casetext

Amendments to 817.535


Arrestable Offenses / Crimes under Fla. Stat. 817.535
Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 817.535.

Civil Citations / Citable Offenses under S817.535
R or S next to points is Mandatory Revocation or Suspension

Current data shows no reason a civil citation or a suspension or revocation of license should have been issued under Florida Statute 817.535.

Annotations, Discussions, Cases:

  1. In re Standard Jury Instructions in Criminal Cases-Report No. 2016–02

    199 So. 3d 234 (Fla. 2016)   Cited 3 times
    § 817.535(2)(b), Fla. Stat.; State v. Harbaugh, 754 So.2d 691 (Fla.2000). Give in the second part of a bifurcated proceeding if the defendant is charged with having a prior violation of § 817.535(2)(a), Fla. Stat.
    PAGE 241

  2. Douglas v. Jones

    No. 1D19-954 (Fla. Dist. Ct. App. Jun. 26, 2020)
    For similar reasons, competent substantial evidence does not support that a blended rate of $100/hour is reasonable. The OAG presented unrebutted expert testimony and evidence that a blended rate of $200/hour was reasonable and, indeed, approved by three different Second Circuit judges in six recent section 817.535 cases. No contrary evidence exists other than the below market OAG rates and those of firms vying for in-roads into government work. We don't fault the trial judge for seeking more information beyond what the OAG initially presented (particularly when the judge failed to get previously requested information in a similar case), but limiting a "reasonable fee" under the statute to only the below-market rates the OAG charges some of its state agency clients would systemically result in the OAG recovering in every section 817.535 case less than what is "reasonable" as the statute requires. And the OAG would have a disincentive to provide representation if the fees it is ultimately awarded are merely the below-market rates upon which the fee order in this case are based.
    PAGE 4

  3. Eaton v. The Bank of N.Y. Mellon

    3:21cv251/MCR/EMT (N.D. Fla. Oct. 13, 2021)
    BoNYM is also entitled to fees under Fla. Stat. § 817.535(8)(c). Eaton has alleged as the basis for a violation of the Civil Remedies for Criminal Practices Act Fla. Stat. § 817.535(8), allowing a cause of action for persons impacted by a materially false, fictitious, or fraudulent statement or representation in an instrument recorded in the public records. Section 817.535(8)(c) provides “the prevailing party in such a suit is entitled to recover costs and reasonable attorney fees.” As discussed above, and despite the dismissal without prejudice, I have found that BoNYM is the prevailing party because Eaton could not refile successfully. Accordingly, BoNYM is entitled to statutory fees.
    PAGE 11

  4. Hilton Resorts Corp. v. Sussman

    Case No: 6:19-cv-305-Orl-40DCI (M.D. Fla. Jun. 28, 2019)
    The Complaint next alleges a claim, on behalf of three Florida-based Plaintiffs, for violation of Fla. Stat. § 817.535. (Doc. 1, ¶¶ 126-134). Plaintiffs cite § 817.535(2)(a), which provides:
    PAGE 7

  5. Douglas v. Jones

    297 So. 3d 713 (Fla. Dist. Ct. App. 2020)   Cited 1 times
    In this civil case, a Florida circuit judge was the victim of false filings made by the defendant, including a false claim of lien and UCC financing statement alleging defendant was owed $5 billion. The OAG filed and successfully litigated on behalf of the circuit judge, who sought attorneys’ fees as the prevailing party under section 817.535(9), Florida Statutes (2020), which states:

  6. Czajkowski v. Peal

    Civil No. 14-3803 (RBK/AMD) (D.N.J. Apr. 24, 2015)   Cited 2 times
    Decedent's Will was finally admitted to probate on September 6, 2013. (Id. ¶ 27.) Plaintiff filed the instant action on June 13, 2014, (Doc. No. 1), alleging eighteen counts in total, and amended his Complaint on July 21, 2014. (Doc. No. 6.) In his Amended Complaint, Plaintiff alleges nine counts against Peal, including: Breach of Contract (Count I); Legal Malpractice (Count III); Fraud (Count V); Tortious Interference with an Expectancy (Appointment as Executor) (Count VII); Tortious Interference with an Expectancy (Appointment as co-Executor) (Count IX); Breach of the Duty of Loyalty (Count XI); Violation of Fla. Stat. § 817.535 (Filing Stanley Sr.'s Will) (Count XIII); Violation of Fla. Stat. § 817.535 (Filing notice of Trust) (Count XV); and Violation of Fla. Stat. § 817.535 (Filing of Second Deed) (Count XVII). Plaintiff also brings nine counts against Defendants Robinson, Herb, and Nelson Hesse, including: Breach of Contract (Count II); Legal Malpractice (Count IV); Fraud (Count VI); Tortious Interference with an Expectancy (Appointment as Executor) (Count VIII); Tortious Interference with an Expectancy (Appointment as co-Executor) (Count X)…
    PAGE 5

  7. In re Ditech Holding Corp.

    Case No. 19-10412 (JLG) (Bankr. S.D.N.Y. Jun. 29, 2021)
    The Claimant seeks leave to assert a claim against Ditech pursuant to Fla. Stat. Ann. § 817.535(8) (the "Florida Statute"). See Request to Amend ¶ 3. In relevant part, the Florida Statute states that
    PAGE 7

  8. Innova Inv. Grp. v. Vill. of Key Biscayne

    19-22540-CIV-GAYLES/OTAZO-REYES (S.D. Fla. Jan. 31, 2022)
    In its Complaint, Plaintiff also brought a claim seeking damages for the Village's alleged filing of false documents under Fla. Stat. § 817.535 [D.E. 1-3], which claim Plaintiff abandoned in its First Amended Complaint [D.E. 1-8]. In a footnote to its Motion, Defendant argues that it is indisputably entitled to recover the fees incurred in moving to dismiss that claim, but that “[t]he Village's entitlement under § 162.10 subsumes its entitlement under § 817.535(8)(c).” See Motion [D.E. 60 at 6 n.3]. The undersigned has reviewed that motion to dismiss and notes that only a short, two-paragraph section was devoted to arguing that Plaintiff's § 817.535 claim was time-barred [D.E. 1-6 at 6]. Thus, to the extent Defendant has not abandoned its fees claim under § 817.535(8)(c) by virtue of the foregoing footnote, the claim would be too small and difficult to ascertain to be compensable.
    PAGE 4

  9. Brooklands, Inc. v. Sweeney

    CASE NO. 14-81298-CIV-HURLEY (S.D. Fla. Apr. 28, 2015)   Cited 4 times
    Fla. Stat. § 817.535(2) (a) provides that any person who files or causes another person to file an instrument in an official record which contains a materially false, fictitious or fraudulent statement or representation that purports to affect an owner's interest in the property described in the instrument commits a third degree felony. Fla. Stat. §817.535(8)(a), Fla. Stat., creates a civil action in favor of any person adversely affected by an instrument filed in an official record which contains such a material false statement without regard to whether any criminal charges were pursued against the offender.
    PAGE 5

  10. In re Ditech Holding Corp.

    19-10412 (JLG) (Bankr. S.D.N.Y. Jun. 29, 2021)
    The Claimant seeks leave to assert a claim against Ditech pursuant to Fla. Stat. Ann. § 817.535(8) (the "Florida Statute"). See Request to Amend ¶ 3. In relevant part, the Florida Statute states that
    PAGE 6