DEBT COLLECTION AND DEBT COLLECTION DEFENSE
You were successful in the litigation case, and the court entered a Judgment in your favor against the Defendant (Judgment Debtor). Congratulations, you won the case! But the real question and probably the most important question for clients is – how do you get the (Judgment Debtor) to pay. After the court enters the Judgment, some clerks will automatically record the Judgment in the county's official records where the creditor sued the Judgment Debtor or where the court entered the Judgment.
Upon recording the Judgment in the official records, it creates a lien on the Judgment Debtor's property. Under Section 55.10 of the Florida Statutes, if the Judgment Debtor attempts to sell the property, the Judgment Debtor will not provide a clear title to the buyer unless the Judgment is satisfied or paid in full.
Serving post-discovery is an essential step in post-litigation because it will determine which collection will be the most cost-efficient for your case. For example, should you proceed with execution and levy or prepare and proceed with garnishing the Judgment Debtor's bank accounts.
Attachment, Lien on Personal Property, or Writ of Execution
One the Judgment is recorded in the public records, it is good practice to record a Judgment Lien Certificate with the Florida Department of State. This step is required before you seek the Sheriff's assistance to levy (seize) the Judgment Debtor's property.
The Sheriff can seize many different property types, such as land, buildings, cars, and boats. However, the Judgment Debtor's homestead is exempt from execution. Additionally, the Judgment Debtor may select personal property valued up to one thousand dollars, and one motor vehicle valued up to one thousand dollars as exempt property.
After the Plaintiff (Judgment Creditor) identifies the property that they would like the Sheriff to seize, the Judgment Creditor must file a Motion for Writ of Execution. In this motion, the Judgment Creditor will identify the property that belongs to the Judgment Debtor and ask the court to issue a Writ of Execution, directing the Sheriff to seize the property. Besides the motion, the Judgment Creditor must also prepare and file Instructions for Levy. These Instructions will identify the property in detail and further provide the Sheriff with the property's location. Finally, an Affidavit signed by the Judgment Creditor is required to be prepared and filed. This Affidavit will also provide more information regarding other liens and judgments that the Judgment Creditor may have.
After the court files and enters all of the pleadings, notices are advertised in a local newspaper. The notices provide the designated time and place of the upcoming sale of the Judgment Debtor's property. At the auction, the highest bidder, who must pay in cash, becomes the property owner. The Sheriff will then payout of the money received from the sale in the following order:
sheriff's costs, Judgment Creditor's expenses, other Judgment Liens (other than the Judgment Creditor's). Understanding the order of distribution of the funds paid is essential, and this is why it is imperative to move forward on the process of the Writ of Execution as soon as practical.
Garnishment of Bank Account or Wages
If the Judgment Creditor is aware of a bank account owned by the Judgment Debtor, the Judgment Creditor should file a Motion for Writ of Garnishment. The parties: Plaintiff (Judgment Creditor) and Defendant (Judgment Debtor) remain the same, but a new party would be the Garnishee. The Garnishee will be the bank where the Judgment Debtor has an account.
The Motion for Writ of Garnishment should reference the previous Judgment entered by the court, and the account owned by the Judgment Debtor. The Motion for Writ of Garnishment should then be served upon the Garnishee (the bank). The Garnishee will then have twenty days to file an answer to the Writ of Garnishment. Under Florida Statutes, five days after the Garnishee files and Answer, the Judgment Creditor should mail the following pleadings to the Judgment Debtor: a copy of the Writ of Garnishment, the Garnishee's Answer, and a Notice regarding the Judgment Debtor's rights.
As the Judgment Debtor, you have a right to be heard in court, and it is imperative that if you contest the Writ of Garnishment, you do so by filing a written dispute with the court within twenty days after a process server serves the writ.
Failure to do so, the court may proceed to issue a Garnishment Judgment, and the Garnishee (the bank) will release the funds in the account to the Judgment Creditor.
Collecting on a Judgment is probably the most critical aspect of a litigation case. If you are a party in a litigation case who needs to collect on a judgment or protect your assets from a Judgment Creditor, please contact Kimberly M. Soto at 321.972.2279 to further advise you.