Creditor Can Cause Sheriff To Take Forcibly All Debtor’s Personal Possessions
Clients sometimes ask me whether a judgment creditor can take personal property in their home such as furniture and jewelry. The answer is that a creditor can obtain what is known as a “break order” to authorize the sheriff to remove your personal property. The Florida homestead exemption does not extend to protect tangible personal items inside the homestead.
Some judges will issue break orders without hearing or notice to the debtor. However, break orders to remove property are not used in most collection cases. In my experience, financial institutions rarely go after a debtors household furniture. Individual creditors- people owed money- tend to me more aggressive in their collections and instruct their collection attorneys to use the most extreme collection tools.
One of my debtor clients this month found himself subject to a break order issued in favor of an individual creditor. The client had a couple days notice because his other attorneys were alerted that the creditor had filed the break order motion. Even after notice, the client’s property was still in his home when the sheriff arrived at the door with the creditor’s attorney present to supervise the procedure.
The creditor attorney instructed the sheriff to take everything in the house including the debtor’s bed where he sleeps, his refrigerator full of food, and all the clothing in his closet and drawers. The creditor attorney even told the sheriff to take the man’s pet dog (eventually, the client negotiate the release of the dog.) The debtor had a safe in his house; the creditor offered to pay a locksmith to drill open the safe when the debtor said he “forgot” the combination. Literally at the end of this day, my client was drained both of his possessions and emotionally. But understand, the client owes the creditor over a million dollars, and the household belongings are probably valued less than ten thousand dollars.
If the debtor were married it is unlikely the creditor would attempt to invade his home to take his furniture because personal property in a marital home is presumed to owned by both spouses as tenants by entireties. Entireties property is exempt from collection of either one spouse’s separate judgments.
Some clients have asked me if they could transfer their household furniture to an entity, such as an LLC. This tactic would be easily attackable as a fraudulent conveyance when the same furniture remains in the debtor’s home for his personal use.
About the Author
Jon Alper is an expert in asset protection planning for individuals and small businesses.
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