outline for post-judgment/collections...

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OUTLINE FOR POST-JUDGMENT/COLLECTIONS CFFLIOC PRESENTATION

I. Florida Statutes and Rules

A. Relevant Chapters of Florida Statutes:

1. Chapter 30 - Sheriffs (primarily § 30.30)

2. Chapter 55 -Judgments

3. Chapter 56 - Final Process

4. Chapter 76 -Attachment

5. Chapter 77 -Garnishment

6. Chapter 78 - Replevin

B. Relevant Rules of Procedure

1. Fla. R. Civ. P. 1.550 / Fla. Fam. L. R. P. 12.550 -

Executions and Final Process

a. 12.550 - "Executions and final process shall be

governed by Florida Rule of Civil Procedure 1.550."


Discovery in Aid of Execution

a. 12.560 specifically includes availability of Fla. R. Civ.

P. Form 1.977 (Fact Information Sheet) and the Final _

Judgment Enforcement Paragraph.


Enforcement of Final Judgments

a. 12.570 - "Enforcement of judgments shall be governed

by Florida Rule- of Civil Procedure 1.570. Money

judgments, as governed by rule 1.570(a) shall include,

but not be limited to, judgments for alimony, child

support, attorneys' fees, suit money, and costs, and

equitable distribution"

4. Fla. R. Civ. P. Form 1.905 -Writ of Attachment

5. Fla. R. Civ. P. Form 1.914 - Execution

6. Fla. R. Civ. P. Form 1.937 -Complaint for Replevin

7. Fla. R. Civ. P. Form 1.995 -Final Judgment of Replevin

II. Fact Information Sheet /Discovery in Aid of Execution

F/a. R. Civ. P. 1.560 and F/a. Fam. L. R. P, 12.560 -Disco very in Aid of

Execution

(a) In General. In aid of a judgment, decree, or execution the

judgment creditor or the successor in interest, when that interest

appears of record, may obtain discovery from any person, including

the judgment debtor, in the manner provided in these rules.

(b) Fact Information Sheet. In addition to any other discovery

available to a judgment creditor under this rule, the court, at the

request of the judgment creditor, shall order the judgment debtor

or debtors to complete form 1.977, including all required

attachments, within 45 days of the order or such other reasonable

time as determined by the court. Failure to obey the order may

be considered contempt of court.

(c) Final Judgment Enforcement Paragraph. In any final judgment,.

the judge shall include the following enforcement. paragraph if

requested by the ;:prevailing party. or attorney:

"It is further ordered and adjudged. that the judgment debtors)

shall complete under oath Florida Rule of Civil. Procedure

Form .1.977 (Fact Information Sheet), including all required

attachments, and serve it on the judgment creditor's attorney,

or the judgment creditor if the judgment creditor is not

represented by an attorney, within 45 days from the date of

this final judgment, unless the final judgement is satisfied or

post-judgment discovery is stayed..

Jurisdiction of this case is retained to enter further orders that

are proper to compel. the judgment debtors) to complete form

- --- ---1-97~; irrciadrng ail= regt~ir-ed- -attachr-~er~~s; --aid _se-r-ve-- z--on—the

judgment creditor's attorney, or -the judgment creditor if the

judgment creditor is not represented by an attorney."

(d) Information Regarding Assets of Judgment Debtor's Spouse. In

any final judgment, if requested by the judgment creditor, the court

shall include the additional Spouse Related Portion of the fact

information sheet upon a showing that a proper predicate exists for

discovery of separate income and assets of the judgment debtor's

spouse.

(e) Notice of Compliance. The judgment debtor shall file with the

clerk of court a notice of compliance with the order to complete

form 1.977, and serve a copy of the notice of compliance on the

judgment creditor or the judgment creditor's attorney.

I11. Judgment Lien on Personal Property

A. ~ 55.202, F/orida Statutes - Judgments, orders, and decrees; /ien on

~~~~e~~i pP~pe~%y

(2) A judgment lien may be acquired on a judgment debtor's

interest in all personal property in this state. subject to execution

under s. 56.061, other than fixtures, money, negotiable

instruments, and mortgages.

(a) A judgment lien is acquired by filing.- a judgment lien

certificate in accordance with ~ s: 55:203 with the Department of

State after the judgment has become final and if the time to

move for rehearing has lapsed, no motion for rehearing is

pending, and no stay of the judgment or its enforcement is

then in effect. A court may authorize, for cause shown, the

filing of a judgment lien certificate before a judgment has

become final when the court has authorized the issuance of a

writ of execution in the same matter. A judgment lien

certificate not filed in compliance with this subsection is

permanently void and of no effect.

(c)- Exeept as-provided -_ in--~ --55~08~1a~~ffectiv~~iate _o-f a-

judgment lien is the date, including the time of day, of filing.

Although no lien attaches to property, and a creditor does not

become a lien creditor as to liens under chapter 679, until

the debtor acquires an interest in the property, rip ority among

competing judgment liens is determined in order of filing date

and time.

B. Judgment Lien Certificate and Amendment Forms -

http://form.sunbiz.org/jlien forms.html

1. Mail completed forms) with the appropriate fee to the Division

of Corporations for processing and filing or E-file through

https:/lefile.sunbiz.or /g ~lefile html.

C. Costs

1. Judgment Lien With One Debtor $20.00

2. Each Additional Debtor $5.00

3. Each Attached Page, if Necessary $5.00

4. Certified Copy Requested $10.00

IV. Judgment Lien on Real Property

A. § 55.10, F/a, Stat, -Judgments, orders, .and decrees; /ien of a/l,

genera//y; extension of liens; transfer of liens to other security.

(1) A judgment, order, or decree becomes a lien on real. property

in any county when a certified copy of it is recorded in the

official records or judgment lien record of the county, whichever

is maintained at the time of recordation, provided that ..the

judgment, order, or decree contains the address of the person

who has a lien as a result of such judgment, order, or decree

or a separate affidavit is recorded simultaneously with the

iudgment, order, or decree stating the address of the person who

has a lien as a result of such judgment, order, or decree. A

judgment, order, or decree does not become a lien on real

property unless the address of the person who has a lien as a

result of such judgment, order, or decree is contained in the

judgment, order, or decree or an affidavit with such address is

simultaneously recorded with the judgment, order,.. or decree.

If the certified copy was first recorded in a county in accordance

with this subsection between July 1, 1987, and June 30, 1994,

then the judgment, order, or decree shall be a lien in that

county for an initial period of 7 years from the date of the

recording. If the certified copy is first recorded in accordance with

this subsection on or after July 1, 1994, then the judgment,

order, or decree shall be a lien in that county for an initial

period of 10 years from the date of the recording.

(2) The lien provided for in subsection (1) or an extension of

that lien as provided by this subsection may be extended for an

additional period of 10 years, subject to the limitation in

subsection (3), by rerecording a certified copy of the judgment,

order, or decree prior to the expiration of the lien or the

expiration of the extended lien ~n~ by simultaneously. recording

an affidavit with the current address of the person who has a

lien as a result of the judgment, order, or decree. The extension

shall be effective from the date the certified copy of the

judgment, order, or decree is rerecorded. The lien or extended

~. lien will not be extended unless the affidavit with the current

address is simultaneously ,recorded.. - ti _.

V. Garnishment

A. ~ 6>. 72, F/orida Statutes. Attachment or garnishment of amounts due

for a/imony or chi/d support. —statute breakdown

1. (1) So much as the court orders. of the money or other

things due to any person or public officer, state or county,

whether the head of a family residing in this state or not,...

a. § 61.12 created an exception to the exemption from

attachment of garnishment that may be claimed when

money is due the head of a family for personal

services and labor.

i. Exception to the exemption does not apply where

arrearages in alimony, suit money, or child support

have been reduced to final judgment. See

Sweeten v. Anderson, 414 So. 2d 258 (Fla. 4th

DCA 1982).

b. Under Chapter 77, Head of family wages are subject

to exemptions from garnishment.

i. See § 222.11, Fla. Stat. — Exemption of wages

from garnishment.

2. when the money or other thing is due for the personal labor

or service of the person or otherwise, is subject to attachment

or garnishment to enforce and satisfy the orders and

judgments of the court of this state...

3. for alimon suit money, or child support, or other orders in

proceedings for dissolution, alimony, or child. support, or other

orders in proceedings for dis~ol~ti~an, alimony, or child

support;...

a. Attorney's fees have been held to be suit money and

the collection thereof may- be enforced in the same

manner as alimony and child support upon a proper

judgment for attorney's fees being entered. City of

-, = - ~- . -Tampa v. Hines, 596 So.~= 2d 160 , (Fla.. 2d .DCA ..1.992).,:_.

4. Subsection 61.12(2) provides that a court may issue a

continuing writ of garnishment to an employer for periodic

payment of -child support or alimony or both. Subsection (2)

does not reference suit money, therefore, a continuing writ is

not available for attorneys' fee awards. See Reyf v. Reyf,

-620 So. 2d 218 (Fla. 3d DCA 1993).

5. When past due payments are reduced to judgment, the

provisions of Section 61.12 do not apply, and the parties are

governed by the general law relating to garnishment after

judgment. Soko/sky v. Kuhn, 405 So. 2d 975 (Fla. 1981)..

B. Chapter 77, F/orida Statutes —Garnishment

1. § 77,01 Right to writ of garnishment.—Every person_ or entity who

has sued to recover a debt or has recovered judgment in any

court against any person or entity has a right to a writ of

garnishment, in the manner hereinafter provided, to subject any

debt due to defendant by a third person or any debt not

evidenced by a negotiable instrument that will become due

absolutely through the passage of time only to the defendant

by a third person, and any tangible or intangible personal

property of defendant in the possession or control of a third

person. The officers, agents, and employees of any companies

or corporations are third persons in regard to the companies

or corporations, and as such are subject to garnishment after

judgment against the companies or corporations.

2. ~ 77.03 /ssuance of writ after judgment.—After judgment has been

obtained against defendant but before the writ of garnishment

is issued, the plaintiff, ih~ plaintiff's agent or attorney, Thal!

file a motion (which shall not be verified or negative

defendant's exemptions) stating the amount of the judgment.

-The motion may be filed and the writ issued either before or

after the return of execution.

,3. ~ 77._p305 Continuing writ of garnishment against sa/ary or wages.—

Notwithstanding any other provision df this`' chapter, if salary or ~ .~- :-

wages are to be garnished to satisfy a judgment, the .court

shall issue a continuing writ of garnishment to the judgment

debtor's employer which provides for the periodic payment of a

portion of the salary or wages of the judgment debtor as the

salary or wages become due until the judgment is satisfied or

until otherwise provided by court order.. A debtor's status as

an employee of the state or its agencies or political

subdivisions does not preclude a judgment creditor's right to

garnish the debtor's wages. For the purposes of this section,

the state includes the judicial branch and the legislative branch

as defined in s. 216.011. The state, for itself and for its

agencies and subdivisions, waives sovereign immunity for the

express and limited purpose necessary to carry out this

section. The court shall allow the judgment debtor's employer

to collect up to $5 against the salary or wages of the

judgment debtor to reimburse the employer for administrative

costs for the first deduction from the judgment debtor's salary

or wages and up to $2 for each deduction thereafter. The

funds collected by the state under this section must be

deposited in the Department of Financial Services Administrative

Trust Fund for purposes of carrying out this section.

4. ~ 77.04 Writ; form.—The writ shall require the garnishee to

serve an answer on the plaintiff within 20 days after service

of the .writ stating whether the garnishee is indebted to the

defendant at the time of the answer, or was indebted at the

time of service of the writ, plus up to 1 business day for the

garnishee to act expeditiously on the writ, or at any time

between such times; in what sum an~1 whai Tangible or

intangible personal property of defendant the garnishee has in

his or her possession or control at the time of his or her

answer, or had at the time of the service of the writ, or at

any time between such times; and whether the garnishee

knows of any other person. indebted to defendant, or who may., ..

have any - of = -the.- property of defendant in . his _~ or ~ her

possession or control. The writ shall state the amount named

in plaintiff's motion. If the garnishee is a business entity, an

authorized employee or agent of the entity may execute, file,

-and serve the answer on behalf of the entity.

5. § 77.041 Notice to individual defendant for c/aim of exemption from

garnishment; procedure for hearing.—

(1) Upon application_ for a writ of garnishment by a plaintiff, if

the- defendant is an individual, the clerk of the court shall

attach to the writ the following "Notice to Defendant":

NOTICE TO DEFENDANT OF RIGHT AGAINST,

GARNISHMENT OF WAGES, MONEY, AND OTHER

PROPERTY,..

CLAIM OF EXEMPTION AND REQUEST FOR HEARING...

6. ~ 77,055 Service of garnishee's answer and notice of right to

dissolve writ.—Within 5 days after service of the garnishee's

answer on the plaintiff or after the time period for the

garnishee's answer has expired, the plaintiff shall serve, by

mail, the following documents: a copy of the garnishee's

answer, and a notice advising the recipient that he or she

must move to dissolve the writ- of garnishment within 20 days

after .the date indicated on the certificate of service in the

notice if any allegation in the plaintiff's motion for writ of

garnishment is untrue. The plaintiff shall serve these documents

on the defendant at the defendant's last known address and

any -other address disclosed by the garnishee's answer and on

any other person disclosed in the garnishee's answer to have

any own~r~hip interest in the deposit, a~co~ant, ~r property

controlled by the garnishee. The plaintiff shall file in the

proceeding a certificate of such service.

7. ~ 77.061 Rep/y.—When any garnishee answers and plaintiff is

not satisfied with the answer, he or she shall serve a reply

within 20 days thereafter denying the allegations of the answer

as ~e ~ or _she desires, =0n- _f~i~lure of plaintiff- to file a rep4~r,.

the answer shall be taken as true and on proper disposition

of the assets, if any are disclosed thereby, the garnishee is

entitled to an order discharging him or her from further liability

under the -writ.

8. § 77.07- Disso/ution of w~it.—

(5) If the _ plaintiff fails to file a dismissal or motion for final

judgment within 6 months after filing the writ of garnishment,

the writ shall - automatically be dissolved and the garnishee

shall be discharged from further liability under the writ. The

plaintiff has the right to extend the writ for an additional 6

months by serving the garnishee and the defendant a notice

of extension and filing in the underlying proceeding a

certification of such service..

9. § 77.083 Judgment.—Judgment against the garnishee on the

garnishee's answer or after trial of a reply to the garnishee's

answer shall be entered for the amount of his or her liability

as disclosed by the answer or trial. Instead of scire facias,

the court may subpoena the garnishee to inquire about his or

her liability to or possession of property of the defendant. No

judgment in excess of the amount remaining unpaid on the

final judgment against the defendant or in excess of the

amount of the liability of the garnishee to the defendant,

whichever is less, shall be entered against the garnishee.

C. Service of Writ

1. A .writ of garnishment is served on the garnishee under the

regular procedures for service of process. See Fla. R. Civ.

P. 1.070; Fla. Fam. L. R. P. 12.070

D. Costs

1. $85.00 for .Clerk's fee

2. $40.00 for service by~ Orange ~ounfy= ~he~iff's Office

3. $100.00 to garnishee per § 77.28, Fla.. Stat. — Upon

issuance of any writ of garnishment, the party applying for it

shall pay $100 to the garnishee- on the garnishee's demand

at any time after the service of the writ for the payment or

part payment of his or her attorney fee which the garnishee

expends or agrees to expend in obtaining representation in

response to the writ.

4. Compensation to Garnishee per § 77.17, Fla. Stat. — The

garnishee shall be allowed the pay of a witness for the

garnishee's attendance out of the debt owed to defendant or

the property in the garnishee's possession. If there is no

debt or property in the garnishee's possession, the allowance

shall be against plaintiff.

E. Spendthrift Trusts are Subject to Garnishment

1. "Florida has a public policy favoring spendthrift provisions in

trusts and protecting a beneficiary's trust income; however it

gives way to Florida's strong public policy favoring enforcement

of alimony and support orders. See Gi/bert v. Gi/bert, 447 So.

2d 299, 302 (Fla. 2d DCA 1984) ("In light of our strong

public policy toward requiring persons to support their

dependents, we hold that spendthrift trusts can be garnished

for the collection of arrearages in alimony."); see a/so Bacardi

v. White, 463 So. 2d 218, 222 (Fla. 1985), ("We have

weighed the competing public policies and, although we

reaffirm the validity - of spendthrift trusts, we conclude that in

these types of cages the restraint of spendthrift trusts should

not be an absolute bar to the enforcement of alimony orders

or judgments.")." Berlinger v. Casselberry, 133 So. 3d 961, 966

(Fla.. 2d DCA 2013).

VL Replevin

A. ~ 78.01 Right of rep/evin.- Any person whose personal property

"~ is~+ wrongfully detained by anyother. person ~ or nffice'r::~m~y have a

writ of replevin to recover said personal property and any damages

sustained by reason of the .wrongful taking or detention as herein

provided. Notice of lis pendens to charge third persons with

knowledge of plaintiff's claim on the property may be recorded.

1. Remedy is available before or after judgment, but pre-

judgment replevin requires a bond and verified petition or

separate affidavit of the petitioner. See § 78.068, Fla. Stat.

B. Process for Obtaining Writ of Replevin

1. File Complaint for Replevin pursuant to specific

requirements of § 78.055, Fla. Stat.

2. Draft a proposed Order

.property should not be taken

defendant and delivered to

requirements of § 78.065, Fla.

with the Complaint for Replevin.

to Show Cause why claimed

from the possession of the

plaintiff pursuant to specific

Stat., and send Order to judge

3. Serve Complaint and executed Order to Show Cause on

the defendant.

4. Attend Show Cause hearing.

5. Judge will enter Order directing Clerk to Issue a Writ of

Replevin.

6. If personal property is within a locked door, fence, gate,

etc., also file a Motion for Break Order. See § 78.10, Fla.

Stat.

7. Deliver Writ of Replevin (and possibly Break Order) to

Sheriff's Office for service.

C. Costs

1. $85.00 for- Orange County Clerk filing fee

2. $90.OQ for Orange County Sheriff's Office fee

VII. Attachment

A. : §y 76.01 Right to attachment.—Any creditor may .have an_ R ._ ~ ~.

attachment at law against the goods and- chattels, ~~- lands,~~~ °anc

tenements of his or her debtor under the circumstances and in the

manner hereinafter provided.

1. Attachment may apply to real or personal property.

B. § 76.04 Grounds when debt due.—The creditor may have an

attachment on a debt actually due to the creditor by his or her

debtor, when the debtor:

(1) Will fraudulently part with the property before judgment

can be obtained against him or her..

(2) Is actually removing the property out of the state.

(3) Is about to remove the property out of the state.

(4) Resides out of the state.

(5) Is actually moving himself or herself out of the state.

(6) Is about to move himself or herself out of the state.

(7) Is absconding.

(8) is concealing himself or herself.

(9) Is secreting. the property.

(10) Is fraudulently disposing of the property.

(11) Is actually removing himself or herself beyond the limits

of the judicial circuit in which he or she resides.

(12) Is about to remove himself or herself out of the limits

of such judicial circuit.

C. Procedure

1. An attachment proceeding i~ irliiiated by a motion and

affidavit of the petitioner. See § 76.08, Fla. Stat.; Fla. R. Civ.

P. 1.100(b), 1.570(c)(1); Fla. Fam. L. R. P. 12.100, 12.570.

2. After the motion and affidavit have been filed, the court

will schedule an ex pane hearing to determine whether the

petitioner has alleged sufficient facts to support the writ. See

u ~ § 76-:08, Fla~.~ ~ Sfat.; Fla: Fam. L. R. P. 12:100. _ ... _ ,

3. The court will issue the writ only if the petitioner posts

an attachment -bond for an amount double the amount sought

on the writ, made through a surety, and payable to the

respondent. See §§ 76.1.2, 72.133, Fla. Stat.

4. Deliver writ of attachment to Sheriff's Office for service.

5. After the sheriff has executed a writ of attachment, the

respondent may reclaim the attached property by posting a

bond that ensures the petitioner's claim will be satisfied if he

or she prevails. See §§ 76.18, 76.19, Fla. Stat.

D. Costs

1. $85.00- for Orange County Clerk filing fee

2. $90.00 for Orange County Sheriff's Office fee

VIII. Sequestration

A. § 68.03, F/a. Stat, —Sequestration; proceedings prescribed.

(1) If any action is commenced in chancery against any

defendant residing out of this state and any other defendant

within the state has in his or her hands effects of, or is

otherwise indebted to, the absent defendant and the absentee

does not appear in -.the action and give security to the

satisfaction of the court for performing the judgment and on

affidavit that the absentee is out of the state, or that on inquiry

at the absentee's usual place of abode he or she cannot be

found to be served with process, the court may restrain the

defendant in this state from paying or conveying or secreting the

debts owing by him or her to, or the effects in his or her

hands of, the absentee or restrain the absentee from conveying

or secreting or removing the property in litigation, or may

sequestrate the property which may be necessary to secure

plaintiff if he or she prevails, and may order such debts to be

paid ~ and effects ~ tQ _be, , delivered to plaintiff on his or. her giving

bond with surety. for the return thereof.

(2) The court shall require the plaintiff to give bond with

surety to be approved by the clerk, to abide the future orders

made for restoring the. estate or effects to the absent defendant

on his or her appearance in the action. If the plaintiff does not

furnish the bond,- the effects shall remain under the direction. of

the court or in the hands of a receiver or otherwise for so

long a time and shall be disposed of in such manner as the

court deems fit.

B. If .the respondent is found in contempt of court because of

failure to pay support, a writ of sequestration may be issued

allowing seizure of his property. Once the property is sequestered, it

may be sold to pay for obligations that respondent has defaulted in.

See Seneca v. Seneca, 382 So. 2d 371 (Fla. 4th DCA 1980).

IX. Execution and Levy

A. Ru/e 1.550, F/a. R. Civ. P, —Executions and Fina/Process

(a) Issuance. --Executions on judgments shall issue during the

life of the judgment on the oral request of the party entitled to

it or that party's attorney without praecipe. No execution or other

final process shall issue until the judgment on which it is based

has been recorded nor within the time for serving a motion for

new trial or rehearing, and if a motion for new trial or rehearing

is timely served, until it is determined; provided execution or

other final process may be issued on special order of the court

at any .time after judgment.

(b) Stay. --The court before which an execution or other

process based on a final judgment is .returnable may stay such

execution or other process and suspend p~oeeedings thereon for

good cause on motion and notice fo all adverse parties.

B. Chapter 56, F/o~ida Statutes — Fina/Process.

1. § 56.061. Property subject to execution. — Lands and tenements,

goods and chattels, equities of redemption in real and

personal: property, and }stock in corporations,. shall be subject ,_. -.

to levy and sale under4 execution. Likewise, the interest in

personal property in possession of a vendee under a retained

title contract or conditional sale contract shall be subject to

levy and sale under execution to satisfy a judgment against

the vendee. This shall be done by making the levy on such

personal property.

C. Steps for Writ of Execution and Levy

1. Basic form for Writ. of Execution -Form 1.941, F/orida Ru/es of

Civi/ Procedure

a. Must include:

i. Caption designating action as execution.

ii. Amount of Judgment.

iii. Applicable rate of interest and date from which

interest runs.

b. Clerk must Sign and Seal Writ of Execution

2. Deliver Writ of Execution to Sheriff's office in County in

which property subject to execution/levy is located with

proper fees and deposits and levy instructions and details

to Sheriff

a. Orange County Sheriff's Department does not have a

.form for levy instructions, but several counties do,

which provide useful information:

i. Broward:

https://www.sheriff.org/about_bso/dle/civiVlevy.cfm (very

~sef~al)

ii. Palm Beach:

http://www.pbso.org/CSBJDocuments/Civil/General°/o201ns

tructions%20for%20Levy.pdf (instructions)

http://www.pbso.orq/CSB/DocumentslCivil/LEVY°Io201 NST

RUCTIONS:pdf, (form,sto be completed)

iii. Pinellas: - .~

https:/lwww, pcsoweb.com/Data/Sites/1 /media/extra-

pdf/levy information and forms updated 1-10-2013.pdf

b. It is advisable to contact the Sheriff's Office to

determine requirements and all information needed for

levy and confirm fee amount.

i. At a minimum, Sheriff should know specific

description of property (with model/serial numbers if

applicable and available), where located (address

and specific location on property), and in whose

possession/control property likely is.

D. Sheriff's Sale

1. After Sheriff levies on property, the property is sold by

Sheriff's sale with proper notice and description. See §~

56.21-56.23.

a. Notice of Sale

i. Include description and location of property to be

sold and date, time and location of sale.

ii. Publish Notice of Sale by advertisement once a

week for four (4) successive weeks prior to sale

in newspaper published in the county

iii. Mail a copy of the Notice of Sale to obligor's

attorney of record and/or obligor's last known

address.

E. Execution as Lien

1. A writ of execution operates as a lien or charge against the

obligor's property, whether real or personal. See F/agship

State Bank of Jacksonville v. Carantzas, 352 So. 2d 1259

(Fla. 1st DCA 1978) (re: personal property); B/ack v. Mi//er,

2.19 So. 2d 106 (Fla. 3d DCA 1969) (re: real property).

"" 2. The rules overning g the priority of , lier~~ apply to writs o

.~ ~ ~ execution. ..

3. The. lien attaches when the writ is delivered to the sheriff,

and the date of delivery establishes the priority of the lien.

F. Third Party Property Interests and Bonds

1. § 30.30, F/a. Stat. Writs, process; duties and /iabi/hies in levying.

a. When a writ, or instructions attached thereto, describes

specific property, and such property is claimed by a

third party other than the respondent, the sheriff may

require the petitioner to post a bond before the

property is taken into legal custody [~30.30(3JJ. The

bond will indemnify the sheriff for liability for any loss

or damage that may be sustained by anyone due to

the seizure and sale of the property [§30.30(2)]. The

amount of the bond may not exceed the reasonable

value of the property, as determined by the sheriff

[~ 30.30(3Jj.

b. As an alternative to requiring the petitioner to post a

bond when a third party claims an interest in property

subject to execution, the sheriff may petition the court

to determine whether the property is subject to levy

[§ 30.30(5.

G. Costs

1. § 30.230, F/a. Stat.—Sheriffs' fees for service of summons,

subpoenas, and e~recutions.

30.230(1)(d)—Executions:

1. Forty dollars for processing each writ of execution,

regardless of the number of persons involved.

2. Fifty dollars for each levy.

.~ a. A levy is considered.- made when any property or

~. - . - . any portion of the property listed or~ unlisted -. in .the:

instructions for levy is seized, or upon demand of

the sheriff the writ is satisfied by the defendant in

lieu of seizure. Seizure requires that the sheriff

take actual possession, if practicable, or,

alternatively, constructive possession of the property

by order of the court.

b. When the instructions are for levy upon real

property, a levy fee is required for each parcel

described in the instructions.

c. When the instructions are for levy based upon

personal property, one fee is allowed, unless the

property is seized at different locations, conditional

upon ail of the items being advertised collectively

and the sale being held at a single location.

However, if the property seized cannot be sold at

one location during the same sale as advertised,

but requires separate sales at different locations,

the sheriff is then authorized to impose a levy fee

for the property and sale at each location.

3. Forty dollars for advertisement of sale under process.

4. Forty dollars for each sale under process.

5. Forty dollars for each deed, bill of sale, or

satisfaction of judgment.

30.230(2) For .levying on property and for the seizure of

persons, the sheriff shall be allowed anticipated expenses

necessary for the execution of the process directing such

levy or seizure and for the safekeeping of properly and

persons in the custody of the sheriff. A reasonable cost

deposit to cover said fees and expenses in connection with

the requested services shall be deposited. in advance, by

.the party requesting the service, with the- officer requested

to perform the service. r~

¢ 2. orange County Sheriff's Office fees- -and ~~deposits - ; " ~"

a. Sheriff's Fees for Levying on Executions:

i. Docketing and Indexing - $40:00

ii. Prepare Advertisement - $40.00

iii. Bill of Sale/Deed - $40.00

iv. Levy Fee - $50.00

v. Satisfaction of Judgement - $40.00

vi. Holding Sale - $40.00

vii. In-House Storage Fee - $50.00

viii.- ***There will be an additional fee of $40.00 per

hour (or any portion thereofl for each Deputy

Sheriff required to standby on the scene after the

first hour. The hourly fee also applies to any

special services. The actual costs may be more

or less. Levy deposits are refundable after all

costs are paid.

b. Levy Deposits:

i. Minimum Cost Deposit for Business Equipment/

Furniture - $2,500.00

/~

ii. Minimum- Cost Deposit for any vehicle, single craft,

single/double wide mobile home, travel trailer and

each additional craft - $1,700.00

.iii. Minimum Cost Deposit for Stocks, Bonds, Jewelry,

Real Estate, Depositions - $650.00

iv. Minimum Cost Deposit for Locksmith (Break Order

is necessary) - $75.00

v. Personal Property (i.e. Household Furnishings):

Deposit varies depending on quantity of -items

_being levied.. An inventory list will need to be

_ seen by, the_. Sales Coordinator, .Corporal, or the

Sergeant of ~ the Enforceable Writs Section before

an amount is determined.

Proceedings Supplementary

A. If a Writ_ of Execution is returned unsatisfied, the judgment

creditor- may initiate - proceedings supplementary. § 55.29, F/a, Stat,

B. Process by which Courts (Judges or Magistrates) require the

judgment debtor (or third parties who are the. recipient of fraudulent

transfers from the judgment debtor) to appear in Court a`nd testify

as to the scope and nature of the judgment debtor's assets and

transfers of assets, and make determinations accordingly in light of

the unsatisfied judgment.

C. Process for Proceedings Supplementary

1. File a Motion and Affidavit stating:

a: The judgment creditor holds an unsatisfied judgment

or judgment lien obtained under chapter 55;

b. The issuing court and case number;

c. The unsatisfied amount of the judgment or

judgment lien, including accrued costs and interest

cl. That the execution is valid and outstanding, and

thereupon the judgment creditor is entitled to these

proceedings supplementary to execution;

e. Describe any property of

exempt from execution in the

any property, debt, or other

judgment debtor which may

satisfaction of the judgment.

the judgment debtor not

hands of any person or

obligation due to the

be applied toward the

2: Upon filing of the motion and affidavits, the court will

issue a Notice to Appear, which -will:

a. Direct such person to file an affidavit, as provided

in § 56.16, with the court by a date certain, which date

sh-all not be less than 7 business days from the date

6of service of the Notice to Appear, stating why the.

properly; debt; or other. obligation should not be applied

to satisfy the judgment;

b. Describe with reasonable particularity the property,

debt,.- or other obligation that may be available to satisfy

the judgment, must "provide such person with the

opportunity to present defenses, and must indicate that

discovery as provided under the. rules of civil procedure

is available and that there is a right- to a jury trial as

_provided in § 56.18;

c. Be .served as provided for in chapter 48.

3. A responding affidavit must raise any fact or defense

opposing application of the property described in the Notice to

Appear to satisfy the judgment, including- legal defenses, such

as lack of personal._ jurisdiction. Legal defenses need not be

filed under oath but must be served contemporaneously with

the affidavit.

D, The court may:

1. Order any property of the judgment debtor, not exempt

from execution, or any property, debt, or other obligation due

to the judgment debtor, in the hands of or under the control

of any person subject to the Notice to Appear, to be levied

upon and applied toward the satisfaction of the judgment debt.

2. Enter any orders, judgments, or writs required to carry

out the purpose of this section, including .those orders

necessary or proper to subject property or property rights of

any- judgment debtor to execution, and including entry of

money judgments as provided in §§ 56.16, 56.19 against any

person to whom a Notice to Appear has been directed and

over. whom the court obtained personal jurisdiction irrespective

of whether such person has retained the property, subject to

applicable principles of equity, and. in accordance with chapters

76 and 77 and all. applicable rules of civil procedure.

E. Any person failing to obey any order issued under this section

by a judge or general or special magistrate or failing to attend in

response. to a subpoena served on him or her may be -held in..: ; k,

contempt: -- w __ -. ; _. .

~~

F. Costs for proceedings supplementary shall be taxed against the

judgment debtor as well as -all other incidental costs determined to

be reasonable and just by the court including, but not limited to,

docketing_ the execution, sheriff's service fees, and court reporter's

fees. Reasonable attorney fees may be taxed against the judgment

debtor.