Garnishment Case Law in Florida

This page analyzes the most important Florida court decisions on garnishment.

Strict Construction of Chapter 77

Florida’s garnishment statutes are strictly construed, and a party who does not follow their procedure exactly loses the step it governs. Florida’s district courts of appeal have applied the canon to the writ itself, to the creditor’s sworn answer, and to the debtor’s own exemption deadline.

Section 77.01 gives the writ to a plaintiff who has sued to recover a debt or who holds a judgment. It reaches debts the garnishee owes the debtor, debts that will become due absolutely as time passes, and the debtor’s tangible or intangible personal property in the garnishee’s possession or control. Service creates a lien under § 77.06, and the garnishee’s answer must name everyone holding or appearing to hold an ownership interest.

Williams v. Espirito Santo Bank of Florida, 656 So. 2d 212 (Fla. 3d DCA 1995). Leading case. Garnishment statutes are strictly construed, so a post-judgment settlement agreement silent on garnishment was not a head of family’s written agreement to be garnished, and the continuing writ against the debtor was reversed. The decision construed the pre-2010 version of § 222.11(2)(b), which required only that the debtor “agreed otherwise in writing.”

Gigliotti Contracting North, Inc. v. Traffic Control Products of North Florida, Inc., 788 So. 2d 1013 (Fla. 2d DCA 2001). Citing Williams, the Second District restated that garnishment statutes are strictly construed. It then reversed a garnishment judgment on due process. The unpaid subcontractor who claimed the funds had been denied intervention and any chance to use the § 77.16 claimant-affidavit procedure.

Garel and Jacobs, P.A. v. Wick, 683 So. 2d 184 (Fla. 3d DCA 1996). Chapter 77 governs garnishment, and Florida Rule of Civil Procedure 1.010 recognizes that special statutory proceedings control unless the rules provide to the contrary. An order compelling a law firm to disburse funds it held was treated as a prejudgment writ.

Tomlin v. Anderson, 413 So. 2d 79 (Fla. 5th DCA 1982). Section 77.01 reaches only a debt due absolutely and without contingency; if anything remains to be done before liability becomes fixed, there is no debt a writ can attach. A cancelled book-entry obligation that was at most voidable, and had not been voided when the writ was served, was not garnishable, and the garnishee could also defend by showing the supposed debt failed for want of consideration.

Laura M. Watson, P.A. v. Stewart Tilghman Fox & Bianchi, P.A., 162 So. 3d 102 (Fla. 4th DCA 2014). The service rules protect the garnishee, and only the garnishee can give them up. A judgment debtor has no vested right to compel strict compliance with the rules for serving the garnishee. A garnishee served by certified mail at its own designated address may waive the defect and submit to the court’s jurisdiction, and its waiver does not waive the debtor’s rights as to the res.

Noland Co. v. Linning, 132 So. 2d 802 (Fla. 1st DCA 1961). Garnishment was unknown to the common law and is purely statutory, so its requirements must be strictly met, and § 222.11 was a limit on the court’s authority to issue the writ, not an affirmative defense. The court read the statute as it then stood to require an averment that the money sought was not a head of family’s pay. The legislature later removed that requirement; the post-judgment motion now states only the amount of the judgment and need not address exemptions.

What the creditor goes after	Reachable?	Authority
A debt the garnishee owes the debtor, or the debtor’s property in the garnishee’s control	Yes, from service, as a lien	§ 77.01; § 77.06
Unliquidated damages, before judgment	No	§ 77.01; BNP Paribas (Fla. 4th DCA 2005)
A claim sounding in tort, before judgment	No, unless the tort is waived and sued on as an implied contract	§ 77.02; Garel and Jacobs (Fla. 3d DCA 1996)
A bank account the garnishee holds outside Florida	No	Navy Federal v. Veros Credit (Fla. 4th DCA 2024); Stansell (M.D. Fla. 2015)
Intangible assets wherever located, in postjudgment enforcement against a terrorist party	Yes	§ 772.13(6)(a)3
A head of family’s disposable earnings at or below $750 a week	No	§ 222.11(2)(a)
A head of family’s disposable earnings above $750 a week, with no signed waiver	No	§ 222.11(2)(b)
A head of family’s earnings above $750 a week, after a valid written waiver	Yes, up to the federal cap	§ 222.11(2)(b); Klepal (Fla. 2d DCA 2011); Hart (Fla. 1st DCA 2015)
A non-head of family’s disposable earnings	Yes, up to the federal cap	§ 222.11(2)(c)
Exempt earnings traced in a bank account within six months of deposit	No, to the extent they were exempt when earned	§ 222.11(3); Weinshank (Bankr. S.D. Fla. 2009)
Discretionary distributions from a business the debtor runs	Yes; they are not exempt earnings	Brock (Fla. 4th DCA 2002); Kane (Fla. 4th DCA 2016); Harrison (Bankr. S.D. Fla. 1997)
Those same distributions, by continuing writ on “salary or wages”	No	§ 77.0305; Brock (Fla. 4th DCA 2002)
An employee’s commissions, by continuing writ on “salary or wages”	Yes	§ 77.0305; Baker v. Storfer (Fla. 4th DCA 2011)
Wages a government employer owes its own employee	Yes, by continuing writ	§ 77.0305; Hernando County v. Warner (Fla. 5th DCA 1998)

Why Chapter 77 Reads as It Does

Federal and state courts struck Florida’s prejudgment garnishment statutes on due process grounds in the 1970s while upholding the post-judgment ones, and the legislature rewrote the prejudgment law in 1983 to meet the objections.

United Presidential Life Insurance Co. v. King, 361 So. 2d 710 (Fla. 1978). Leading case. Sections 77.01 and 77.03 are constitutional; prior notice to the judgment debtor and a hearing are not required before a post-judgment writ issues, because the writ enforces a judgment already entered after notice and hearing. A trial judge also abuses his discretion by refusing to set aside a default against a garnishee that never received actual notice; the creditor gets no greater rights against the garnishee than the debtor would have had.

Brown v. Liberty Loan Corp. of Duval, 539 F.2d 1355 (5th Cir. 1976). Due process does not require notice and an opportunity to be heard before a post-judgment writ of garnishment issues. The judgment debtor has a real property interest in accrued wages, but the state’s interest in enforcing its judgments and the creditor’s interest in reaching the debtor’s liquid assets outweigh it. The exemption affidavit is simple to file and requires no bond, and the creditor must deny it under oath within days or lose the writ automatically.

Bunton v. First National Bank of Tampa, 394 F. Supp. 793 (M.D. Fla. 1975). A federal court held that Florida’s prejudgment garnishment procedure, as it read in 1975, violated due process: the writ issued on an unsworn motion, no notice went to the debtor, and the debtor had no prior chance to challenge it. That a debtor could move to dissolve without posting security did not save the scheme.

Ray Lein Construction, Inc. v. Wainwright, 346 So. 2d 1029 (Fla. 1977). The Florida Supreme Court struck the prejudgment garnishment statutes on three grounds: the writ could issue without judicial supervision, it could issue on an unsworn application alleging no facts, and no immediate post-seizure hearing was required. The court agreed that notice and a hearing before issuance are not required. The 1983 revision answered each defect: § 77.031 now requires judicial issuance, a verified motion pleading specific facts, and notice of the right to an immediate dissolution hearing.

Schlosser v. State, 602 So. 2d 628 (Fla. 2d DCA 1992). An order directing the Department of Corrections to seize and disburse a prisoner’s commissary account has the practical effect of a writ of garnishment. No prior notice to the debtor is required before the writ issues. Section 222.061 then sets the method for claiming the constitutional exemption for $1,000 of personal property, and the Department’s rule requiring a hold and notice gave the prisoner his chance to use it. The collection order was affirmed.

Requirements for a Prejudgment Writ

A Florida court may issue a prejudgment writ of garnishment only where the plaintiff sues for a fixed sum; unliquidated damages and claims sounding in tort will not support one.

Section 77.02 bars a prejudgment writ in any action sounding in tort; the motion must be filed in the court where the action is pending, and the plaintiff must post a bond (§ 77.031(2)–(3)). Under § 77.07(1) a prejudgment writ dissolves unless the plaintiff proves, at an immediate hearing, both the grounds it issued on and a reasonable probability that it will win final judgment.

BNP Paribas v. Wynne, 944 So. 2d 1004 (Fla. 4th DCA 2005). Leading case. A prejudgment writ cannot stand on claims for unliquidated damages, because § 77.01 confines garnishment to a plaintiff who has sued to recover a debt or who holds a judgment. The plaintiff had sought “unspecified general damages in excess of $15,000,” and dissolution was affirmed on that ground alone. The opinion’s further statement that courts cannot extend the twenty-day deadline to move to dissolve was not the basis of decision.

Garel and Jacobs, P.A. v. Wick, 683 So. 2d 184 (Fla. 3d DCA 1996). A prejudgment motion must be filed in the court where the action is pending, with the statutory bond, and § 77.02 bars a prejudgment writ in an action sounding in tort. An improper taking that is itself a tort also creates an implied contractual obligation to return the property, which can supply the contract predicate.

Proving the Grounds to Keep a Writ

A creditor keeps a challenged writ only by proving, at an immediate hearing, the grounds the writ issued on, plus a reasonable probability that it will win the case if the writ is prejudgment; the burden never shifts onto the debtor.

Doug Sears Consulting, Inc. v. ATS Services, Inc., 752 So. 2d 668 (Fla. 1st DCA 2000). Leading case. On a motion to dissolve a prejudgment writ, the debtor gets a full evidentiary hearing where the creditor must prove the grounds the writ issued on. The prima facie case made with verified pleadings when the writ issued does not relieve the creditor of that burden, and an affidavit is ordinarily inadmissible because it cannot be cross-examined. The debtor’s failure to offer evidence did not cure the creditor’s failure of proof.

Matthews v. Wood, 485 So. 2d 472 (Fla. 2d DCA 1986). A § 77.07 hearing on a motion to dissolve is not limited to the creditor’s prima facie case. Because the statute makes the creditor prove the grounds and a reasonable probability of final judgment in its favor, the creditor’s lack of credibility and an apparently valid affirmative defense both bear on that prediction. Dissolution was affirmed where substantial questions arose both about the creditor’s ability to obtain judgment and about the debtor’s wife’s joint interest in the garnished funds.

Merriman Investments, LLC v. Ujowundu, 123 So. 3d 1191 (Fla. 3d DCA 2013). Dissolution can be sought two ways and only two: by the debtor’s motion under § 77.07 challenging the truth of the creditor’s allegations, or by a third party’s § 77.16 affidavit swearing the garnished property is his. Either route requires a trial of the issues, and the creditor bears the initial burden of proving the grounds, including the debtor’s ownership of the property. A vow of poverty alone did not prove the debtor earned her wages as a religious order’s agent.

Bertman v. Kurtell & Co., 205 So. 2d 685 (Fla. 3d DCA 1967). A defendant traverses the plaintiff’s sworn belief that he will have no visible property to levy on by swearing that he does have such property. Dissolution was affirmed where a landlord suing for $900 in rent admitted knowing of the tenant’s equipment and had investigated no further. The traverse practice survives only for prejudgment writs under § 77.031(2); after judgment the motion no longer contains a property allegation to traverse.

North American Telephone Corp. v. RDM Communication Service, Inc., 535 F.2d 911 (5th Cir. 1976). Applying the era’s statute in a post-judgment garnishment, the former Fifth Circuit found the traverse failed because the creditor had investigated. The debtor’s own financial statement showed liabilities exceeding assets, so the creditor was justified in not believing the debtor held Florida assets sufficient to satisfy the judgment.

Continuing Writs Against Wages

A judgment creditor who wants a debtor’s pay must ask for a continuing writ under § 77.0305, which reaches salary, wages, and commissions as they come due, including a government employer’s payroll, but never more than the amount already reduced to judgment.

Section 77.0305 makes the continuing writ mandatory on a judgment: if salary or wages are to be garnished, the court shall issue a continuing writ to the employer for periodic payment as the pay comes due. The writ runs until the judgment is satisfied or the court orders otherwise, government employment is no bar, and the statute waives sovereign immunity for that limited purpose. The employer may collect $5 against the debtor’s salary for the first deduction and $2 for each deduction after it.

Baker v. Storfer, 51 So. 3d 652 (Fla. 4th DCA 2011). Leading case. Commissions are “salary or wages” under § 77.0305, so a commissioned employee’s pay is reachable by continuing writ. The garnishment statutes do not define the terms, and words of common usage carry their ordinary sense; wages encompass every form of remuneration for labor or services. Brock and the 1999 Cadle decision do not hold otherwise, because commissions were not at issue in either.

Pineiro v. American Express Card Services Co., 105 So. 3d 614 (Fla. 4th DCA 2013). Reading §§ 77.01, 77.03, and 77.0305 together, the total amount sought in a post-judgment garnishment must already be contained in a judgment that exists before the writ issues. A final judgment in continuing garnishment therefore could not include $15,231.36 in collection-stage attorney’s fees not yet reduced to judgment. The creditor could claim those fees under its retainer, but only by a separate judgment.

Palm Coast Recovery Corp. v. Carter, 638 So. 2d 1003 (Fla. 4th DCA 1994). An earlier unappealed order denying a garnishment judgment on head-of-family grounds did not preclude the creditor from later seeking a continuing writ under § 77.0305. The exemption question remained open, particularly where the debtor had since testified that she supported no one but herself and did not claim head-of-family status at the later hearing.

Hernando County v. Warner, 705 So. 2d 1053 (Fla. 5th DCA 1998). Section 77.0305’s waiver of sovereign immunity reaches only salary or wages owed to a government employee. It does not reach money a county owes an independent contractor on a construction contract, which is neither salary nor wages, and no legislative waiver covers sums owed to independent contractors.

Metropolitan Dade County v. United Guaranty Residential Insurance Co. of North Carolina, 645 So. 2d 1117 (Fla. 3d DCA 1994). The state and its subdivisions are immune from garnishment absent a clear and unequivocal legislative waiver. When the 1993 act first waived that immunity for continuing writs against government employees’ wages, an uncodified transition clause confined the waiver to underlying transactions arising after October 1, 1993. A 1983 loan reduced to judgment in 1986 therefore fell outside the waiver; the transition clause is long since spent, and the current statute carries no transaction-date limitation.

Bank Accounts Outside Florida

A Florida court can garnish only property it has jurisdiction over, so serving a writ on a bank that does business in Florida does not reach an account the bank holds in another state.

Navy Federal Credit Union v. Veros Credit, LLC, No. 4D2023-2902 (Fla. 4th DCA Nov. 6, 2024). Leading case. Garnishment is quasi in rem, so subject matter jurisdiction requires authority over the property as well as the class of case, and Florida courts have no in rem jurisdiction over property outside the state. Where the garnishee’s answer said the accounts were outside Florida and the creditor’s § 77.061 reply disputed it, § 77.083 required a trial or evidentiary hearing before judgment, so the judgment in garnishment was reversed.

Navy Federal Credit Union v. Nicholas Financial, Inc., No. 5D2023-3498 (Fla. 5th DCA Mar. 14, 2025). Where the creditor filed no reply, the garnishee’s allegation that the accounts were in Virginia was taken as true under § 77.061, so the trial court lacked subject matter jurisdiction; the judgment was reversed and the writ discharged.

Navy Federal Credit Union v. Camden Summit Partnership, L.P., No. 4D2024-1833 (Fla. 4th DCA Apr. 2, 2025). On the same fact pattern, the Fourth District decided the case on due process grounds.

Navy Federal Credit Union v. Veros Credit, LLC, No. 5D2024-1804 (Fla. 5th DCA Apr. 10, 2026). A garnishee’s defense that the court lacks jurisdiction over an account not located in Florida “is a valid defense if supported by the facts,” so raising it is not sanctionable bad faith, and the $2,660 sanction was vacated. The dispute must be tried or heard under § 77.083; the court reserved the question of when an account is located in Florida, and the opinion is not final pending rehearing.

Stansell v. Revolutionary Armed Forces of Colombia (FARC), 149 F. Supp. 3d 1337 (M.D. Fla. 2015). A federal court in Florida lacked jurisdiction to garnish bank accounts outside Florida. Garnishment is quasi in rem, jurisdiction over the res cannot be waived, and Florida’s statutes contain no extraterritorial language, so personal jurisdiction over the banks was not enough; eighteen writs on New York accounts were dissolved. The court followed two earlier federal orders, APR Energy, LLC v. Pakistan Power Resources, LLC, No. 3:08-cv-961 (M.D. Fla. 2009), and Skulas v. Loiselle, No. 0:09-cv-60096 (S.D. Fla. 2010).

Power Rental Op Co, LLC v. Virgin Islands Water & Power Authority, No. 3:20-cv-1015-TJC-JRK, 2021 WL 9881137 (M.D. Fla. July 6, 2021). In a prejudgment garnishment, a federal court in Florida held that a bank account may have more than one situs but is not located everywhere the garnishee bank has a branch. Where an account sits is proved by ordinary facts such as deposit slips and account-opening documents. The creditor bore the burden of a prima facie showing of jurisdiction over the accounts; it showed no Florida connection, and the writs were dissolved.

Payton v. Swanson, 175 So. 2d 48 (Fla. 3d DCA 1965). Florida prescribes no residency limitation on who may use garnishment, so a nonresident plaintiff may garnish a nonresident defendant’s Florida bank account, and due process does not require the court to engraft one. The decided question was the plaintiff’s residence, and the case predates the modern law of quasi in rem jurisdiction.

Boeykens v. Slocum, 356 So. 2d 1341 (Fla. 3d DCA 1978). Nonresident defendants who appear specially to contest personal jurisdiction cannot be heard on the merits of a prejudgment writ’s validity; a special appearance is the wrong vehicle. The trial court must give such defendants time to submit to its jurisdiction and then challenge the writ; otherwise the cause proceeds in rem, and the court expressed no opinion on the writ’s validity.

One statute reaches further, for one class of creditor only. Section 772.13(6)(a)3 applies only to postjudgment enforcement against a terrorist party; there, writs and proceedings supplementary reach intangible assets “wherever located, without territorial limitation,” and the assets’ situs is deemed to be Florida. Chapters 56 and 77 themselves were not amended, and nothing changed for an ordinary judgment creditor.

Qualifying as a Head of Family

Florida’s head-of-family wage exemption belongs to anyone providing more than half the support of a child or other dependent, whether or not they share a home and whether or not the earner lives in Florida.

Section 222.11 defines a head of family as a natural person providing more than half the support of a child or other dependent, and exempts all that person’s disposable earnings at or below $750 a week. Disposable earnings above $750 a week may not be garnished unless the head of family has agreed otherwise in writing; anyone else may be garnished only up to the federal Consumer Credit Protection Act limit. The statute imposes no residency or place-of-work condition.

Killian v. Lawson, 387 So. 2d 960 (Fla. 1980). Leading case. A divorced man who pays $1,000 a month in alimony that is his former wife’s sole income is a head of a family under § 222.11, because the court-ordered support duty arises from the family relationship. Either a legal support duty arising from the family relationship or continuing communal living among two or more persons with one in charge suffices. The wage earner need not live in the same house as the dependent.

Mazzella v. Boinis, 617 So. 2d 1156 (Fla. 4th DCA 1993). “Child” in § 222.11 carries no age limit, so a divorced physician who paid more than half the support of her adult son, a college student, was a head of family. The statute shields a head of family regardless of income; Mazzella earned about $100,000 a year.

Ulisano v. Ulisano, 154 So. 3d 507 (Fla. 4th DCA 2015). Once the 1993 amendment deleted “residing in this state,” the exemption applied to residents and non-residents alike, so a debtor who had lived in South Carolina for seven years while supporting two children and a spouse kept it. The exemption is liberally construed for the debtor because its purpose is keeping debtors’ families from becoming public charges.

In re Stevenson, 374 B.R. 891 (Bankr. M.D. Fla. 2007). Head-of-family status is a factual question resolved on the totality of the circumstances, and the debtor carries the burden; claiming support is not proving it. A debtor who listed himself as single with no dependents, gave inconsistent accounts of his marital status, and offered only his own testimony that he paid $400 a month for a child failed to carry it. The record did not show that the money was actually paid or that it exceeded half the child’s support.

What Money Counts as Earnings

Section 222.11 protects compensation for a person’s own labor and nothing else: not severance, retirement money, deferred pay, tax refunds, or passive returns on what the labor bought.

In re Coltellaro, 204 B.R. 640 (Bankr. S.D. Fla. 1997). Leading case. Section 222.11 does not distinguish between awards for past wages and awards for prospective wages, and it is strictly limited to wages. Any part of a seaman’s recovery expressly designated unpaid wages was exempt; any part representing future lost earnings was not estate property at all. General tort damages under the Jones Act and for unseaworthiness got nothing from the section.

In re Powers, 98 B.R. 577 (Bankr. M.D. Fla. 1989). What the parties call a payment does not control. A discharged vice-president’s $962 weekly payments, accepted in exchange for releasing every claim against his former employer, were not exempt wages even though the settlement letter called the money wages. He performed no services after termination, and on the whole record the payments settled a potential tort claim.

In re Passi, 101 B.R. 360 (Bankr. S.D. Fla. 1989). Auto-accident settlement proceeds characterized as compensation for lost income were not exempt because no part of them was traced and identified as wages. Every tort settlement includes some consideration for lost earning capacity, and that alone falls far short of identifying any part of the money as exempt wages.

In re Fraley, 148 B.R. 635 (Bankr. M.D. Fla. 1992). A lump-sum workers’ compensation settlement on deposit was not exempt under § 222.11, because workers’ compensation benefits are distinguishable from wages. The debtor nonetheless kept the traceable $5,000 on deposit, because § 440.22 separately protects workers’ compensation with a bar that cannot be waived and is not confined to accrued but unpaid claims.

In re Easter, 106 B.R. 748 (Bankr. S.D. Fla. 1989). Advances on future, unearned wages fall outside the exemption, which protects money identified as due or paid for personal services already furnished. Once prepaid salary was received and spent on attorney’s fees it ceased to be exempt from court process, and the excessive fee was disgorged to the trustee.

In re Locke, 99 B.R. 473 (Bankr. M.D. Fla. 1989). A deferred payment due under a contract is not exempt where it is passive income rather than compensation for personal services. A debtor whose mare foaled a racehorse he no longer owned held only a contractual right to a share of future purses, a return on his investment in raising the horse realized when it was sold.

In re Lawton, 261 B.R. 774 (Bankr. M.D. Fla. 2001). Employee stock options granted under a general plan for full-time employees are an asset of the bankruptcy estate, not exempt wages. Options that reward individual performance or replace or supplement salary are income; options granted to employees generally, untied to individual performance or management control, are assets. The debtor was not an officer or senior manager and received the options only as an incentive to align his interests with the company’s.

In re Holmes, 414 B.R. 868 (Bankr. S.D. Fla. 2009). Money a bartender’s employer collected from customers as an automatic service charge and passed to him in regular biweekly paychecks was exempt earnings under § 222.11. The pay was compensation in money of a sum certain for personal labor under an arm’s-length agreement, traceable and identifiable as earnings. The objecting trustee never asserted that the debtor was an independent contractor or that the funds could not be traced, and so failed to shift the burden.

Waters v. Albanese, 547 So. 2d 197 (Fla. 4th DCA 1989). Alimony is not compensation for personal labor and services, yet the Fourth District held it exempt from a creditor’s garnishment anyway, on public policy grounds and because alimony is not a debt in the traditional sense. The policy behind § 222.11, keeping the debtor’s family off public charity, applies equally to a debtor who depends on alimony for support. A former husband who is himself the garnishee may not withhold alimony pending the garnishment.

Severance, Deferred Pay, and Retirement Money

In re Dennison, 84 B.R. 846 (Bankr. S.D. Fla. 1988). A $10,000 lump-sum severance payment owed a former professional football player under the league’s collective bargaining agreement was a vested contract right and property of the estate. Lump-sum severance has none of the characteristics of wages, so § 222.11 does not exempt it. The trustee won only the severance: turnover of the debtor’s insurance premium refund was denied on a different exemption.

In re Harrington, 70 B.R. 301 (Bankr. S.D. Fla. 1987). Monthly payments from a municipal retirement system to a retired police officer are not money due for personal labor or services, so § 222.11 does not exempt them. The payments are income distributed on account of retirement, and federal withholding on them does not make them wages. The same opinion holds that a garnishment lien is perfected on the date the writ is served, so a writ served 98 days before the bankruptcy petition created no voidable preference.

In re Wheat, 149 B.R. 1003 (Bankr. S.D. Fla. 1992). A police officer’s deferred compensation plan, funded solely by his own voluntary wage deductions, was not exempt under § 222.11, because contributions to such a plan are not wages. The officer kept the plan anyway. It was excluded from the bankruptcy estate under federal law, and the objecting creditor had not shown that it fell outside § 185.25, the police-pension exemption.

In re Morrow, 122 B.R. 151 (Bankr. M.D. Fla. 1990). Wages lose their character as wages once invested through an employer’s ERISA-qualified sheltered pay plan. Contributions to such a plan are not akin to wages deposited for savings or everyday living expenses in a bank account.

Holding a Job Versus Running a Business

Florida courts decide whether money is exempt earnings by asking whether the person holds a job or runs the business that pays him, rather than by what the paperwork calls the relationship. The Fourth District has decided these cases on that inquiry alone, in Brock (2002) and Kane (2016), without asking whether the debtor was an employee or an independent contractor.

Section 222.11 defines earnings as compensation paid or payable, in money of a sum certain, for personal services or labor, whether denominated as wages, salary, commission, or bonus; employee status appears nowhere in the definition.

Brock v. Westport Recovery Corp., 832 So. 2d 209 (Fla. 4th DCA 2002). Leading case. Discretionary biweekly draws from a family-owned corporation were not compensation “in money of a sum certain,” so they were neither exempt earnings nor “salary or wages” a continuing writ can reach; the exemption ruling was affirmed and the writ quashed. The debtor bears the burden, and the inquiry is whether the employment “is a salaried job or is in the nature of running a business”; Brock had no employment agreement and had earlier sworn the money was “disbursements from profits.”

Kane v. Stewart Tilghman Fox & Bianchi, P.A., 197 So. 3d 137 (Fla. 4th DCA 2016). Payments from a two-shareholder law firm to its only shareholder-officers were shareholder distributions rather than exempt salary. The Kanes had negotiated the employment agreements only with each other, could be fired only by themselves, and were paid whenever the firm had cash rather than as the contracts provided.

In re Zamora, 187 B.R. 783 (Bankr. S.D. Fla. 1995). The 1993 amendment made exempt bank deposits coextensive with the defined term “earnings,” so some of Schlein‘s reasoning may no longer apply, and the inquiry is whether the debtor’s activities amounted to a job or to running a business. An attorney’s compensation from his own practice and the corporation he controlled was not exempt in any form.

In re Harrison, 216 B.R. 451 (Bankr. S.D. Fla. 1997). A dentist-shareholder’s fixed $75,000 claim against his professional association under an “Amended Deferred Wage Agreement” was not exempt earnings. He and the only other shareholder ran the business and set the timing and amount of their own pay, and the deferred payment was in substance a return on his investment. The claim, secured by a UCC-1 filing, was half his roughly $150,000 average salary, and the agreement’s stated purpose was the orderly dissolution of the practice’s value.

In re Pettit, 224 B.R. 834 (Bankr. M.D. Fla. 1998). The employee-or-independent-contractor label is not dispositive; the debtor’s activities, viewed as a whole, amounted to a job rather than to running a business, so a medical-equipment salesman paid on a 1099 under a verbal arm’s-length agreement held exempt earnings. His $12,500 monthly commission and $10,000 quarterly bonus were paid regularly, the payor controlled their timing and amount, and he was no insider who could manipulate his own pay.

White v. Johnson, 59 So. 2d 532 (Fla. 1952). Leading case. Section 222.11 draws no line between money due for manual labor and money due for personal services involving no manual labor, so the accrued salary of a corporate executive performing purely managerial duties is exempt. The Florida Supreme Court settled the question an equally divided court had left open in Wolf v. Commander (1939), and the current statute’s definition of earnings carries no manual-labor limit.

In re Montoya, 77 B.R. 926 (Bankr. M.D. Fla. 1987). Leading case. A neurosurgeon who sold his practice interest but stayed on under an employment agreement was an employee, so his deposited salary was exempt. Two questions decide these cases: whether the money came from the person’s own services rather than passive sources, and whether the relationship with the payer was employment. The presence of an employment contract, pay measured by time rather than output, and the payer’s right of control all pointed to employment, and that right governs even where it is never exercised.

In re Manning, 163 B.R. 380 (Bankr. S.D. Fla. 1994). A debtor who owns or controls a business cannot exempt the money he distributes to himself by calling it wages; the exemption requires personal services and regular compensation dictated by an arm’s-length employment agreement. The president of a construction company his wife owned outright set his own salary, skipped paychecks when cash was short, and had no employment contract, so his weekly draw was a discretionary distribution from a family business. The arm’s-length formulation is the one Zamora and Harrison apply.

In re Cook, 454 B.R. 204 (Bankr. N.D. Fla. 2011). A $10,000 monthly base salary, agreed in writing and earned by real work overseeing car dealerships, was exempt earnings. The monthly five percent bonus, calculated as a share of the company’s net profit and paid only in profitable months, was a dividend whatever the parties called it. Quoting Montoya, the court explained that the statute protects the fruits of a debtor’s day-to-day efforts while leaving the fruits of his collected wealth unprotected.

In re McDermott, 425 B.R. 848 (Bankr. M.D. Fla. 2010). A debtor who owns and runs his own business, has no arm’s-length employment agreement, and controls the timing and amount of his own compensation cannot use § 222.11 to exempt what he pays himself. The debtor drew $12,000 in 2007 and $22,500 in 2008, then paid himself $72,000 during the five months before he and his company filed Chapter 7 the same day. The court called the $72,000 an equity withdrawal disguised as earnings.

Vining v. Segal, 731 So. 2d 826 (Fla. 3d DCA 1999). Four bank accounts holding the proceeds of a dentist’s sole-proprietorship practice were not exempt earnings. The dentist paid practice expenses and mixed personal charges from the accounts, testified that he paid himself no wage or salary, and worked for no one else. As in Patten Package, only an indeterminable part of the funds was received for his personal services, so no part could be exempted.

In re Stroup, 221 B.R. 537 (Bankr. M.D. Fla. 1997). A physician’s salary-continuation payment, calculated on his practice’s collectible accounts receivable and payable only on departure or retirement, was not the fruit of his labor. The money came in addition to the salary and bonuses he had already earned, and it more resembled severance pay or a dividend on his ownership interest. Using a formula does not make a sum uncertain; computation to a definite sum may still yield earnings in money of a sum certain.

In re Tobkin, 638 F. App’x 822 (11th Cir. 2015). In a nonprecedential decision, the Eleventh Circuit found that a solo practitioner’s contingency fees were proceeds of his law practice, not exempt earnings, because they derived from no arm’s-length employment agreement providing a set salary or wage. The court noted that the Florida Supreme Court has not addressed whether business proceeds are exempt earnings, so the state’s appellate decisions control.

In re Howe, 381 F. Supp. 1025 (N.D. Fla. 1974). Readjustment pay owed a reservist involuntarily released from active duty is severance-type pay easing the return to civilian life, not wages for services rendered in the past, so § 222.11 did not exempt it. The bankrupt still won the appeal: his right to the pay was contingent when he filed, so it never passed to the trustee and the turnover order could not stand.

Independent Contractors and the Older Federal Rule

Contractor status is a factor within the job-versus-business inquiry rather than an automatic bar, but a debtor in federal court still faces an Eleventh Circuit decision that read the statute’s pre-1993 text to exclude an independent contractor’s pay.

In re Schlein, 8 F.3d 745 (11th Cir. 1993). Construing the statute as it read before 1993, which protected “money … due for the personal labor or services,” the Eleventh Circuit held that an independent contractor’s earnings were not protected. Because the emergency physician was not paid wages, no wages were deposited in the bank account the statute protected. The court reversed the alternative commingling ground as clearly erroneous, so tracing is no part of the holding; the amendment substituting “earnings” took effect two months before the opinion issued.

In re Branscum, 229 B.R. 32 (Bankr. M.D. Fla. 1999). A private investigator operating as a sole proprietor under a fictitious trade name could not exempt money earned in that business; the court treated Schlein as the controlling law while noting Pettit as contrary authority.

Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (Fla. 1931). A garnishment claimant must bring himself within the exemption statute’s intent, and the sum a company owed its fuel deliveryman was not money due for his personal labor. The money was a gross sum covering his advanced expenses, his trucks’ earnings, and his adult son’s labor, with only an indeterminable part for his own work. One sentence after that reasoning, the Court observed that the deliveryman was an independent contractor, which later federal decisions treated as the decisive test.

Refco, Inc. v. Sarmiento, 487 So. 2d 75 (Fla. 3d DCA 1986). Framing the question as whether the debtor was an employee or an independent contractor, the Third District found that a commodity-brokerage account executive was an employee, so his unpaid commissions were money due for personal labor and exempt. He worked exclusively for one firm, his supervisor approved orders and oversaw his accounts daily, the firm supplied his equipment and workspace, and his taxes were withheld. The decision supplied the framing In re Schlein later adopted; it is the employee-side outcome under it.

In re Glickman, 126 B.R. 124 (Bankr. M.D. Fla. 1991). Reading § 222.11 literally, the court held that nothing in the statute limits the exemption to employees, so a head of family’s pay for his own services was exempt whether he was an employee or an independent contractor. The court called Patten Package‘s contractor sentence a mere finding of fact unrelated to the holding. The Eleventh Circuit rejected that reading in In re Schlein, later Florida bankruptcy decisions treat Glickman adversely, and it is not authority a debtor can rely on today.

In re Porter, 182 B.R. 53 (Bankr. M.D. Fla. 1994). The 1993 amendments apply prospectively by the date of the underlying transaction, not the date of the legal process. A debtor whose unsecured debt predated October 1, 1993 was therefore confined to the exemptions available before that date, whenever the creditor came after him. Under the earlier statute and In re Schlein, an insurance agent who was an independent contractor could not exempt his commissions.

In re Lee, 190 B.R. 953 (Bankr. M.D. Fla. 1995), and 204 B.R. 78 (Bankr. M.D. Fla. 1996). An insurance broker’s renewal commissions were earned as an independent contractor and fell outside § 222.11; the renewals came automatically, and his right to them was neither vested nor guaranteed. The interim ruling states the 1993 amendment’s effect: “earnings” now covers commissions, and the deposit protection runs to any financial institution. The legislature did not disturb the requirement that exempt earnings be compensation for labor or personal services, so Schlein still governs an independent contractor’s earnings.

In re Braddy, 226 B.R. 479 (Bankr. N.D. Fla. 1998). Renewal commissions on policies a retired, unlicensed agent sold before bankruptcy belonged to the estate, because nothing conditioned his receipt on any future service. He was also an independent contractor under § 222.11, paid solely on commission, bearing all his own business costs, with no employment taxes withheld, so the exemption did not reach the commissions either.

The pre-1993 contractor line. Under the statute as it read before 1993, a head of family paid as an independent contractor was outside the wage exemption, and the bankruptcy courts applied that rule to real estate and insurance commissions alike. Representative: In re Malloy, 2 B.R. 674 (Bankr. M.D. Fla. 1980); Matter of Moriarty, 27 B.R. 73 (Bankr. M.D. Fla. 1983).

The Six-Month Deposit Protection

Earnings deposited in a financial institution stay exempt for six months if they can be traced, but only to the extent they were exempt when earned, so a non-head of family keeps only the share federal law shields.

Section 222.11(3) keeps earnings that are exempt under subsection (2) exempt for six months after they are deposited in a financial institution, if they can be traced and identified as earnings. Commingling earnings with other funds does not by itself defeat a head of family’s ability to trace them.

In re Weinshank, 406 B.R. 413 (Bankr. S.D. Fla. 2009). Subsection (3) protects earnings “that are exempt under subsection (2),” which includes paragraph (c), so the six-month deposit protection is not confined to heads of family. A single W-2 employee with no dependents could claim it for traceable deposited earnings, but only up to the federal Consumer Credit Protection Act limit, which left him “not so generously protected” in the court’s words. The court left the exact amounts to stipulation, and no later decision has followed or rejected the ruling.

In re Pettit, 224 B.R. 834 (Bankr. M.D. Fla. 1998). The debtors proposed a first-in, first-out method of tracing and the court declined to adopt it; only the October commission that could be traced into the account survived, and a transfer into a joint account holding mixed funds did not.

Holmes v. Blazer Financial Services, Inc., 369 So. 2d 987 (Fla. 4th DCA 1979). Under the statute as it then read, § 222.11 protected only money due for personal labor or services, so wages already paid and deposited in the debtor’s bank account lost the exemption and could be garnished. Extending or restricting an exemption is the legislature’s prerogative, and the legislature later took the invitation by adding the deposit protection now in subsection (3).

Sunshine Resources, Inc. v. Simpson, 763 So. 2d 1078 (Fla. 4th DCA 1999). A $700,000 settlement of employment-agreement claims, described in the settlement document as lost income, was exempt as earnings where the debtor understood it as wages, paid income tax on it, and was the head of his household. The exemption question was tried by consent in proceedings supplementary. The proceeds did not lose the exemption on payment. They were identified as earnings and paid antecedent debts within six months of receipt, so the payments were not fraudulent transfers.

Tracing Wages Under the Older Statute

Matter of Welch, 115 B.R. 374 (Bankr. M.D. Fla. 1990). Leading case. Even where a head of household’s wages are commingled with a non-head’s, the portion that can be traced to the head of household’s wages stays exempt; the issue is traceability, not commingling itself. The 1985 amendment protecting deposited wages superseded the older decisions holding that wages lose all protection once paid into a bank. The objecting trustee must first show the funds were not the head’s wages; only then must the debtor trace and identify them.

Matter of McCafferty, 81 B.R. 99 (Bankr. M.D. Fla. 1987). Wages deposited in a bank account are exempt only if the debtor can trace and identify them as the head of household’s wages, the origin of the tracing requirement. Where the head’s wages were commingled with the joint-debtor spouse’s and tracing was impossible, the whole deposit lost the exemption; Welch later read the decision as turning on the impossibility of tracing rather than on commingling itself.

In re Lancaster, 161 B.R. 308 (Bankr. S.D. Fla. 1993). A federal tax refund traceable to withheld wages is not exempt as wages. Once withheld and remitted to the IRS, the money is no longer identifiable as wages, and the taxpayer cannot reach it until it is actually refunded. If the exemption is to reach further, the legislature must extend it; Matter of Truax, 104 B.R. 471 (Bankr. M.D. Fla. 1989), reached the same result for a refund computed on pre-petition wages.

In re Parker, 147 B.R. 810 (Bankr. M.D. Fla. 1992). A stockbroker’s distributions from an employer-designated investment pool were passive income even though they appeared in the wages box of his W-2 and taxes were withheld, because the agreement did not condition distribution on performing services. His bank account mixed payroll deposits with non-exempt employer expense reimbursements, and having commingled the two he could not trace his earnings, so the whole balance lost the exemption.

In re Rutenberg, 164 B.R. 683 (Bankr. M.D. Fla. 1994). Under the statute’s older wording, a Merrill Lynch cash management account was not a “bank account,” so wages parked there could not be exempted. The deposits bought money-market shares, making the relationship broker and investor rather than the debtor-creditor relationship of a bank. The holding rests on the narrower word the legislature later replaced; current § 222.11(3) protects earnings deposited in any financial institution.

Written Waiver of the Exemption

A head of family can sign the exemption away, and Florida courts have enforced consent clauses in promissory notes and guaranties. Every decision doing so applied a version of the statute that predates the current formalities, and no Florida appellate court has decided whether a clause that omits the separate document or the 14-point type is enforceable.

Section 222.11(2)(b) requires a waiver written in the same language as the underlying contract, set out in a separate attached document, and printed in the prescribed all-capitals form, 14-point type or larger. Even after a valid waiver, the amount garnished may not exceed the federal cap.

USAmeriBank v. Klepal, 100 So. 3d 56 (Fla. 2d DCA 2011). A promissory-note clause consenting to a continuing writ to satisfy “any money judgment” was a sufficient written agreement under the 2007 version of § 222.11(2)(b), which prescribed no particular language. The court noted that an amendment effective October 1, 2010, added the waiver formalities and raised the floor from $500 to $750 a week, and that Klepal had not argued it applied.

Hart v. Wachovia Bank, N.A., 159 So. 3d 244 (Fla. 1st DCA 2015). Leading case. A guaranty clause waiving “the benefit of any exemption claim” satisfied the 2005 version of § 222.11(2)(b), which required only that the debtor “agreed otherwise in writing”; Williams merely paraphrased the statute and does not require a waiver to mention garnishment. The 2010 amendments impose “a much more explicit requirement,” the court acknowledged, but the version in force when the guaranty was signed governed, because applying the new formalities retroactively would unconstitutionally impair the contract.

Child Support and the Wage Exemption

Section 61.12 lets a former spouse or the state garnish a head of family’s wages to enforce a Florida court’s alimony and support orders and judgments alike, and the head-of-family exemption is no defense to that writ.

Section 61.12(1) makes money due for a person’s labor or otherwise garnishable to enforce and satisfy a Florida court’s orders and judgments for alimony, suit money, or child support, whether or not the debtor is a head of family. Section 61.12(2) authorizes a continuing writ against the debtor’s employer, notwithstanding chapter 77, but only to collect periodic alimony or child support, not a judgment for suit money or attorney’s fees. Disciplining the employee solely because the writ is in effect is a contempt of court.

Waddell v. Schwarz, 405 So. 2d 978 (Fla. 1981). Leading case. Section 61.12(1) creates a genuine exception to the § 222.11 exemption. Where a former wife garnished to enforce a Florida court’s child-support order, § 222.12 did not apply at all. Her failure to file a sworn denial of the ex-husband’s head-of-family affidavit did not end the proceedings, because his affidavit had no legal significance in a proceeding brought under § 61.12(1).

Schwarz v. Waddell, 422 So. 2d 61 (Fla. 4th DCA 1982). On remand, the Fourth District held that a § 61.12 garnishment for delinquent child support may continue after the dependent child reaches majority. Contempt is unavailable then, because contempt rests on the duty owed minor children and the constitutional bar against imprisonment for debt, while garnishment is an ordinary civil proceeding enforcing an order to pay money.

Department of Health & Rehabilitative Services v. Sweeting, 423 So. 2d 1025 (Fla. 4th DCA 1982). A parent cannot claim head-of-family status against garnishment for the very support he declined to pay; the defense belongs against third-party creditors, not the former spouse’s writ. The Department, collecting child-support arrears after paying public assistance, stands in the custodial parent’s shoes with the same remedies she would have, and that authority survives the termination of the assistance.

Healey v. Toolan, 227 So. 2d 55 (Fla. 4th DCA 1969). Section 61.12’s exception reaches only the alimony, suit money, and support obligations a Florida court itself imposed. A money judgment for arrears under a private separation agreement that an out-of-state divorce decree never mentioned was an ordinary contract judgment, and the head-of-family exemption stood against it even though the contractual obligation grew out of the father’s support duty.

Busot v. Busot, 354 So. 2d 1255 (Fla. 2d DCA 1978). A judgment on a separation agreement the divorce decree never incorporated is an ordinary contract judgment, and against it a head of family keeps the exemption. Where a later final judgment approved, ratified, and adopted the agreement and ordered the payments continued, the arrearage judgment that followed rested on a court order of the § 61.12 type and was collectible by garnishment. The decision’s further holding on arrears reduced to judgment was disapproved in Sokolsky v. Kuhn.

Hall v. Air Force Finance Center, 344 So. 2d 1340 (Fla. 1st DCA 1977). The federal statute that exposes federal employees’ pay to alimony and support process, 42 U.S.C. § 659, does not displace §§ 222.11 and 222.12; it is compatible with § 61.12, which has stood as an exception to those sections since 1901. The decision’s further holding on judgments for accrued support was disapproved in Sokolsky v. Kuhn.

The judgment line the legislature erased. Florida courts once held that reducing support arrearages to a money judgment put them outside § 61.12’s exception (Sokolsky v. Kuhn, 405 So. 2d 975 (Fla. 1981)), until the legislature added the words “and judgments” to the statute and overruled that line.

Chapter 77 Deadlines

Chapter 77 puts a clock on the creditor and a clock on the debtor, and the party that misses its clock loses that round regardless of the merits. A creditor who loses a writ that way may serve a new one, because an automatic dissolution decides nothing on the merits; a debtor who files the exemption claim late loses the exemption for those funds.

The Claim of Exemption and the Creditor’s Sworn Answer

The claim of exemption is the debtor’s filing, and the creditor must contest it under oath within the statutory window or the clerk dissolves the writ without a hearing.

Under § 77.041(2) the creditor must mail the debtor the writ, the motion, and the statutory notice within 5 business days after the writ issues, or 3 business days after the garnishee is served, whichever is later. The debtor then has 20 days after receiving the notice to file the notarized claim of exemption and request for hearing (§ 77.041(1)). The creditor must answer with a sworn written statement within 8 business days after hand delivery, or 14 if the claim was mailed, or the clerk must dissolve the writ without a hearing (§ 77.041(3)).

Marquez v. BlueCare Home Health Services, Inc., 116 So. 3d 563 (Fla. 3d DCA 2013). Leading case. Where the creditor files no sworn statement contesting an exemption claim within the statutory window, no hearing is required, the clerk must automatically dissolve the writ, and a trial court cannot vacate the certificate of dissolution the clerk was required to issue. The creditor’s sworn objection came about eight months late; the court applied a shorter window than the statute now provides.

Keane v. President Condominium Ass’n, Inc., 181 So. 3d 1247 (Fla. 3d DCA 2015). The creditor’s answer to an exemption claim must be sworn; a written but unsworn response does not satisfy § 77.041(3), so the order striking the debtor’s exemption claim was reversed, without prejudice to the creditor filing a new petition for a writ.

Kane v. Stewart Tilghman Fox & Bianchi, P.A., 197 So. 3d 137 (Fla. 4th DCA 2016). A writ that dissolved automatically because the creditor filed no sworn denial is not an adjudication on the merits and does not bar a second writ; res judicata still applies where a first writ was decided on the merits.

Zivitz v. Zivitz, 16 So. 3d 841 (Fla. 2d DCA 2009). The § 77.041 time limits are mandatory and the statute provides no procedure for a late exemption claim, so a debtor who filed late lost even a homestead claim over the garnished funds, proceeds of a voluntary condominium sale. The notice’s warning that a late filer “may lose important rights” does not soften the deadline, and relief for excusable neglect was denied.

Abramov v. NextGear Capital, Inc., No. 3D24-0317 (Fla. 3d DCA Nov. 6, 2024). Section 77.041(1) requires only that the debtor timely complete and file the exemption form. Checking the box for “other exemptions as provided by law” and explaining that the funds were his wife’s preserved a tenancy-by-the-entireties claim, and the ruling that he waived it by omitting the phrase was reversed for an evidentiary hearing.

Vetrick v. Hollander, 566 So. 2d 844 (Fla. 4th DCA 1990). A continuing writ under § 77.0305 is available only on a judgment and, unlike § 61.12(2), creates no exception to the head-of-family exemption. Because the former wife never denied the husband’s head-of-family affidavit in time, the writ should have been returned and the garnishment ended. The two-day denial period the court applied under the 1989 statute has since been superseded.

Cullen v. Marsh, 34 So. 3d 235 (Fla. 3d DCA 2010). At the § 77.041(3) hearing the debtor, not the creditor, bears the burden of proving entitlement to the exemption, and a creditor need not accept an exemption claim rather than contest it. A writ of garnishment makes no factual or legal claims, so a failure to mail the debtor the § 77.041(2) copies does not undermine the writ’s basis, and merely losing on the merits supports no sanction under § 57.105.

Cadle Co. v. Pegasus Ranch, Inc., 920 So. 2d 1276 (Fla. 4th DCA 2006). Section 77.041 supplemented § 222.12 rather than replacing it: chapter 77 supplied the general procedure, and chapter 222 supplied the exemptions. The Legislature repealed § 222.12 effective July 1, 2013. A creditor’s timely sworn, notarized replies denying the facts alleged in the debtor’s exemption claims were enough to contest them. The trial court erred in dissolving the writs without an evidentiary hearing, where the debtor would have borne the burden of proving the exemptions.

Cadle Co. v. G & G Associates, 757 So. 2d 1278 (Fla. 4th DCA 2000). Section 222.12, although strictly construed in the debtor’s favor, did not require a controverting affidavit from the creditor, only a denial under oath. A sworn denial by the creditor’s account officer put the earnings question at issue and entitled the creditor to an evidentiary hearing. The court also held that a return on an equity investment, employer expense reimbursements, and a capital account are not exempt earnings, with the burden of proof on the debtor.

Regions Bank v. Squitieri, No. 3D20-578 (Fla. 3d DCA Nov. 4, 2020). Where a debtor files a sworn claim of exemption and request for hearing and the creditor timely files a sworn written statement answering it, § 77.041(3) requires a hearing to determine the validity of the claimed exemption. A trial court may not grant the claim temporarily and without prejudice instead of holding that hearing, not even where it had cancelled hearings to limit the spread of the coronavirus.

Reichenbach v. Chemical Bank of New Jersey, 623 So. 2d 577 (Fla. 3d DCA 1993). Where a professional football player filed the § 222.12 affidavits then required and the creditor never filed an affidavit denying their facts, the first continuing writ was properly dissolved. The court erred in issuing a second continuing writ over money already adjudicated exempt and in allowing two writs to run at once. The player’s later move out of state did not matter: his exempt status was already of record, and no refiling was required.

Elvine v. Public Finance Co., 196 So. 2d 25 (Fla. 3d DCA 1967). A default judgment against a garnishee fell where the debtor had filed an unanswered affidavit of exemption. Once the affidavit was served and its facts were not denied under oath within the period the statute then allowed, the creditor could not proceed except by filing the statutory denial and seeking a trial on it. The exemption exists for the debtor’s benefit alone, and an affidavit filed after the hearing on the creditor’s default motion still counted.

Ser-Nestler, Inc. v. General Finance Loan Co., 167 So. 2d 230 (Fla. 3d DCA 1964), appeal dismissed, 174 So. 2d 35 (Fla. 1965). A garnishee may not assert the debtor’s head-of-family exemption for him; the exemption is personal to the debtor. The judgment against the defaulting garnishee was cut back to the $480 it had paid the debtor after service of the writ.

Brooks v. Foster, 889 So. 2d 902 (Fla. 4th DCA 2004). Swearing the statement § 77.041(3) requires does not alone make a creditor’s lawyer a necessary witness, so disqualifying him on that basis was premature. Disqualifying chosen counsel is an extraordinary remedy, the party seeking it bears the burden of showing the testimony is necessary, and a notice of a deposition not yet taken shows only a possibility that disqualification might become necessary.

The Motion to Dissolve and the Six-Month Limit

The motion to dissolve is a separate filing on a separate clock, which starts only when the creditor serves notice of the garnishee’s answer, and a writ the creditor does not prosecute dissolves on its own.

Within 5 days after the garnishee answers or its answer time expires, the creditor must mail the answer and notice of the 20-day dissolution deadline to the debtor and every other owner the answer discloses (§ 77.055). A motion to dissolve filed more than 20 days after that certificate of service is stricken “as an unauthorized nullity,” leaving that party in “a default posture” (§ 77.07(2)). The writ dissolves automatically if the creditor neither dismisses nor moves for final judgment within 6 months after filing it and serves no 6-month extension notice (§ 77.07(5)).

Rudd v. First Union National Bank of Florida, 761 So. 2d 1189 (Fla. 4th DCA 2000). Leading case. A debtor may claim the wage exemption before the garnishee answers, because service of the writ freezes the wages or account and the debtor learns of the garnishment well before the answer is due. Only the defendant, and the other owners the garnishee’s answer discloses, may move for dissolution, and that 20-day clock never starts if the creditor never serves the § 77.055 notice.

Akerman Senterfitt & Eidson, P.A. v. Value Seafood, Inc., 121 So. 3d 83 (Fla. 3d DCA 2013). A creditor who files neither a dismissal nor a motion for final judgment within six months after filing the writ, and serves no extension notice, loses the writ automatically and the garnishee is discharged. But the dismissal of the creditor’s later writs was reversed: § 77.07(5) discharges the garnishee only “from further liability under the writ” dissolved, and nothing bars new writs.

Villamorey, S.A. v. BDT Investments, Inc., 245 So. 3d 909 (Fla. 3d DCA 2018). A non-party account holder that the garnishee’s answer identifies as an owner may seek dissolution under § 77.07(2) without a § 77.16(1) claimant affidavit, but doing so submits it to the court’s jurisdiction, makes it a party, and opens it to discovery. Reserving the jurisdictional objection did not save the Panamanian account holder, which had also agreed to mediate and said it would participate at trial.

International Travel Card, Inc. v. R.C. Hasler, Inc., 411 So. 2d 215 (Fla. 1st DCA 1982). The twenty-day dissolution period does not run from the writ’s service on the garnishee. Where notice to the debtor was required, the period ran from service of that notice, so a motion filed 19 days after the debtor received notice was timely though the garnishee had been served 26 days earlier. The construction was later carried into § 77.07(2) itself.

City of Delray Beach v. Desisto, 204 So. 3d 954 (Fla. 4th DCA 2016). A second motion to dissolve was timely because it came within twenty days after the city received the creditor’s notice enclosing the bank’s amended answer; receipt of that notice, not some earlier event, starts the period. The trial court erred by disposing of both motions as untimely without reaching their merits. The garnished attorney’s-fees judgment was a separate final judgment never appealed, so no automatic public-body stay attached.

Beardsley v. Admiral Insurance Co., 647 So. 2d 327 (Fla. 3d DCA 1994). Where the garnishee’s answer discloses that accounts are titled jointly in the debtor’s and a non-debtor’s names, the creditor must serve the writ, the answer, and the required notice on that person. The notice must warn her to move to dissolve within the statutory period or be defaulted; § 77.055 already required that service and that warning. Commingling a non-exempt deposit with exempt funds does not automatically strip the account; the court allocates it into exempt and non-exempt shares where possible.

T-Jett Enterprises, Inc. v. Ernest and Stewart, Inc., 543 So. 2d 390 (Fla. 3d DCA 1989). A garnishment judgment falls with the summary judgment it rests on: genuine fact issues about how and when a broker’s commission was payable required reversal of both. The court added that the creditor’s failure to notify the seller of the garnishment proceedings under § 77.055 would alone have been sufficient basis for reversing the garnishment order.

Kearney Construction Co. v. Travelers Casualty & Surety Co. of America, 795 F. App’x 671 (11th Cir. 2019). In a nonprecedential decision, the Eleventh Circuit held that the motion to dissolve fixes the scope of a garnishment fight. The issues tried, and the discovery taken, are the ones the motion raises, so a party that leaves an argument out of its motion loses the chance to try it. Owners who had moved to dissolve on the ground that the debtor owned none of the accounts could not argue afterward for a presumed pro rata share.

Branch Banking & Trust Co. v. Carrerou, 730 F. App’x 869 (11th Cir. 2018). In a nonprecedential decision, the Eleventh Circuit held that late filing forfeits both the exemption and the chance to dissolve the writ, even for undisputedly exempt retirement accounts. Sections 77.041 and 77.055 say the debtor “must” file the claim of exemption and the motion to dissolve on time; § 77.07(2) strikes an untimely motion as an unauthorized nullity. The “may lose important rights” warning covers only a debtor who never qualified, and one- and two-month delays were not excusable neglect.

What a Garnishee May and May Not Raise

A garnishee keeps every defense and set-off it had against the debtor when the writ was served, but it cannot relitigate what the main case decided, and it cannot keep property it took from the debtor in fraud of creditors.

Standard Accident Insurance Co. v. Hancock, 124 Fla. 725, 169 So. 617 (Fla. 1936). Leading case. The writ does not worsen the garnishee’s position. The creditor steps into the debtor’s shoes and takes subject to every claim fairly arising from the garnishee’s contract with the debtor. The exception controlled here: where the garnishee holds the debtor’s property under a fraudulent transfer, the creditor may assert the transfer’s invalidity and reach the property by garnishment. That is so even though the debtor, because of his own fraud, could not have sued the garnishee himself.

Grain Dealers Mutual Insurance Co. v. Quarrier, 175 So. 2d 83 (Fla. 1st DCA 1965). An insurer-garnishee that defended the main action for its insured may not relitigate in the garnishment an issue necessarily determined against the insured there, and a nonwaiver agreement does not change that. The agreement preserves only issues the main action could not decide, such as fraud in procuring the policy. A garnishor need not traverse an answer that admits every essential fact and merely draws a wrong legal conclusion; the court may enter judgment on the pleadings.

Johnson v. Dawson, 257 So. 2d 282 (Fla. 3d DCA 1972). A judgment creditor may raise estoppel and waiver against the debtor’s insurer in a post-judgment garnishment without taking an assignment of the insured’s rights. The doctrines failed on the facts. An insurer that takes a nonwaiver agreement and then defends the damages action as its policy requires keeps its contract rights, and waiver and estoppel cannot create coverage for a loss the policy excludes.

Bowling v. Rocket Wheels Industries, Inc., 344 So. 2d 1300 (Fla. 2d DCA 1977). A properly served garnishee is charged with notice of any irregularity in the proceeding, including the creditor’s failure to notify the judgment debtors. Garnishees who thought that notice necessary could have served it themselves and cannot complain that it was missing. Their fear of double exposure was imagined, since a chancery suit to quiet title remained open to them.

Allen v. Brevard County Loan & Mortgage Co., 117 Fla. 640, 158 So. 305 (Fla. 1934). Whether the garnishee owed the defendant anything when the writ was served, or at any time before its answer, is a question of fact. On conflicting evidence the question goes to the jury, and directing a verdict for the garnishee was error.

Third Parties Who Claim the Account

Someone other than the debtor who owns part of a garnished account keeps his share, but he gets it only through the route chapter 77 gives him, which is the claimant’s affidavit under § 77.16 if the garnishee’s answer never named him.

Under § 77.16(1) the claimant swears an affidavit that the garnished debt or property is his, and the court impanels a jury to determine the right of property unless a jury is waived.

Antuna v. Dawson, 459 So. 2d 1114 (Fla. 4th DCA 1984). Leading case. A non-spouse joint depositor owns his contributions and their pro rata accretions, which cannot be reached for a co-depositor’s debt; that interest must be conclusively determined before the creditor takes the funds. Chapter 77 is facially valid. The claimant gets notice and a § 77.16 affidavit route to a hearing on his interest. As applied it was not enough: served days before the final hearing during a brief Florida visit, the claimant was denied due process and entitled to relief.

Goodson v. Caldreon, 265 So. 2d 74 (Fla. 1st DCA 1972). A survivorship account’s joint owner, served with notice of a post-judgment writ, moved to quash. The trial court denied her motion and entered final judgment against the garnishee in the same order. That denied her due process. She had no time to plead on the merits, and the opportunity to be heard must be full and fair rather than merely colorable.

Navon, Kopelman & O’Donnell, P.A. v. Synnex Information Technologies, Inc., 720 So. 2d 1167 (Fla. 4th DCA 1998). The right to move to dissolve belongs only to the defendant and to a person the garnishee’s answer discloses as an owner. A claimant the answer never named has no motion to dissolve at all; its route is the § 77.16 claimant affidavit, which the substituted plaintiff there never filed. On certiorari the court held only that the circuit court had violated no clearly established principle of law.

Smart v. City of Miami Beach, 51 F. Supp. 3d 1299 (S.D. Fla. 2014). In a federal magistrate judge’s order applying Florida law, a spouse the garnishee’s initial answer never disclosed was owed no § 77.055 notice and had no standing to move to dissolve. His route was the § 77.16 affidavit, which he effectively took by declaration and live testimony. The debtor herself had to prove by a preponderance that the money was not hers; she had deposited salary and severance in the account and paid ordinary expenses from it, and she failed.

Appealing a Garnishment Ruling

An order dissolving a writ of garnishment is final and appealable at once, while an order refusing dissolution is not and waits for the judgment in the main case.

Pleasant Valley Farms & Morey Condensery Co. v. Carl, 90 Fla. 420, 106 So. 427 (Fla. 1925). Leading case. An order dissolving a writ of garnishment is final and reviewable at once, without awaiting judgment in the main cause. The garnishment proceeding is severable, the order is conclusive as to its object, and postponed review would not restore whatever right the writ gave the plaintiff. The traverse is a summary proceeding admitting only a categorical denial of a specific allegation; the defendant may not inject that the writ was sued out to harass him.

Hamilton v. Hanks, 309 So. 2d 229 (Fla. 4th DCA 1975). An order denying a motion to dissolve is interlocutory, not final; unlike the order in Pleasant Valley, it destroys no right conclusively. If no judgment is entered against the defendant in the main cause the order becomes moot, and if judgment is entered a plenary appeal brings the order up for review.

Triumph Metal Products, Inc. v. Snyder, 133 So. 2d 344 (Fla. 2d DCA 1961). Equity will not enjoin a garnishment proceeding at law where the law court has jurisdiction of the parties and the subject matter and is competent to try the issues. The garnishee had already raised its defenses by answer in the law action, and they were proper matters for defensive pleading there. The garnishment fight belongs in the law action, where its rulings can then be reviewed on appeal.

Wrongful Garnishment

Florida recognizes a tort action for wrongful garnishment, which a debtor may bring once the writ has been dissolved or the debtor has posted the statutory bond, but no Florida decision sets a measure of damages for it.

Strickland v. Commerce Loan Co. of Jacksonville, 158 So. 2d 814 (Fla. 1st DCA 1963). Leading case. A judgment debtor whose wages were garnished on a knowingly false affidavit that she was not a head of family, an issue a jury had already decided her way, stated a claim for wrongful and malicious garnishment; dismissal was reversed. The court quoted treatises that disagree on whether malice and want of probable cause must be proved, and did not decide the point.

Dynatronics, Inc. v. Knorr, 247 So. 2d 70 (Fla. 2d DCA 1971). Either a § 77.07 dissolution or a § 77.24 bond posted by the debtor is discharge enough to support a later suit for improper garnishment; the original garnishment need not be finally adjudicated first.

Nash v. Walker, 78 So. 2d 685 (Fla. 1955), and Jones-Mahoney Corp. v. C.A. Fielland, Inc., 114 So. 2d 18 (Fla. 2d DCA 1959). Posting a § 77.24 bond does not extinguish liability for a maliciously procured writ, but a tort counterclaim for the reputational injury the garnishment caused is not compulsory and is not properly tried with the merits of the underlying suit. Jones-Mahoney read Nash as requiring a separate trial, “not as prohibiting the retention of the counterclaim for separate proceedings,” and reversed the striking of such a counterclaim.

A later Third District decision confined Jones-Mahoney to suits in equity. Calcagni v. Mamber, 262 So. 2d 467 (Fla. 3d DCA 1971), called it the only case tending the other way.

Martin v. Martin, 196 So. 2d 26 (Fla. 2d DCA 1967). A claim for damages for wrongfully suing out a writ, or on the writ bond, cannot be tried as a counterclaim in the main action. It must be brought as a separate suit at law, and the counterclaim was dismissed without prejudice to such a suit. The court applied garnishment decisions to the attachment statutes because § 77.07 and § 76.24 are identical and the other sections of the two chapters match in language or principle.

Malowney v. Federal Collection Deposit Group, 193 F.3d 1342 (11th Cir. 1999). A federal constitutional attack failed for lack of standing. Judgment debtors whose garnished account held only federally exempt benefits, and whose writ a state court had already dissolved, could not ask a federal court to declare Florida’s post-judgment garnishment statute unconstitutional. Past injury will not support a declaratory judgment, and the possibility of a future writ was too speculative; the Eleventh Circuit did not decide whether the statute is constitutional.

A writ dissolved on procedure can be served again, so what a debtor keeps turns on the exemption itself: head-of-family status, earnings kept traceable in a wage account, and no signed waiver.