When Does Writ of Execution Expire?
Creditors enforce money judgments by getting a writ of execution from the court allowing them to levy on a debtor’s assets. I received an email from a Blog reader which puts forth an interesting argument that a creditor’s writ of execution is good only for one year. Rather than summarize the argument, I will publish the entire email below for consideration.
The email received is as follows:
“A couple of years back two Florida lawyers wrote this Bar Journal article in which they argued that Florida Judgments could be executed on forever:
They based their argument on the 1967 repeal of a 20 year limitation statute that was never replaced (although courts have been acting as though it was still there).
Here’s a kooky thought for the day: Florida executions may be limited to one year as follows,
“Dormancy. At common law, because the law presumed that a judgment would be satisfied within a year and a day of its entry, it became dormant on the 366th day. The Florida Legislature, by limiting “actions on judgments” to five and 20 years, has in effect said that after the running of those time periods the judgments are “dormant” and cannot be used to create new judgments.”
IMHO, it’s quite possible that at least with respect to executions, Florida reverted to common law, and now judgments might be only subject to executions for one year.
The article’s authors say:
“The legislature must have known that the statute it was repealing had been interpreted to place a 20-year lifetime on executions. It repealed that statute and to this day has not replaced it with a statute or court rule limiting the time within which the execution option must be exercised. The courts are not permitted to judicially enact a statute about which the legislature has clearly spoken, even by its inaction.”
So they believe that Florida judgments can be executed on forever. I say it’s more plausible to say they can only be executed on for one year. In the absence of a statute, the common law applies.
I don’t believe anyone has made this argument yet, but what else can apply in the absence of a specific statute? Would the Florida Supreme Court have to find that “emanations” from the statutes that establish a 10 year and 20 year limit for liens on personal and real property establish a limit? If so, which period would they choose and why? ”
About the Author
Jon Alper is an expert in asset protection planning for individuals and small businesses.
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