Debt Collection Laws Explained
Florida debt collection laws enable creditors to collect money damages a court has awarded in a court judgment. The outcome of most civil litigation is a money judgment against the losing party (judgment debtor) in favor of the prevailing party (judgment creditor) for an amount of money damages plus interest. Under judgment collection law, there is no judgment until the judge signs a document entitled “Judgment” or “Final Judgment.” A court’s money judgment is not immediately effective. There is a 10-day period after the date of the judgment during which either party can request a rehearing. Rehearing requests are usually denied, but if a request for stays enforcement of the judgment until the court rules on the rehearing motion.
A court’s final judgment, by itself, does not provide any money to the prevailing judgment creditor. Nor does the final judgment, by itself, take any of the debtor’s property. A judgment debtor may voluntarily pay a judgment, but if the debtor is unwilling or unable to pay then the creditor must use legal tools to collect the judgment from the debtor’s assets. Judgment collection is the process by which a judgment creditor finds and takes the debtor’s property to satisfy a money judgment. Collecting a judgment is usually referred to legally as the execution of a judgment. Florida judgment enforcement usually begins with the creditor asking the court to issue a Writ of Execution. A writ of execution entitles the creditor to take steps to collect the judgment. Effective asset protection planning requires an understanding of tools creditors may use to discover and take non-exempt assets to collect judgments.
Can You Become Judgment Proof in Florida?
Judgment proof refers to a situation where a civil monetary judgment creditor cannot collect any of a debtor’s assets or income. Many judgment debtors aspire to be judgment proof through asset protection planning. But asset protection will not make you judgment proof in Florida. An aggressive and skilled collection attorney can, with enough time and money, attack at least some assets of any judgment debtor. Do not believe an attorney that promises to make you judgment proof.
A more realistic goal of asset protection is making it more difficult for the judgment creditor to collect a money judgment, thereby increasing the debtor’s position in settlement negotiation. Being effectively judgment proof means protecting your assets and income to such a degree where it is difficult for a judgment creditor to collect a judgment from any of your assets. Proper asset protection requires a complete understanding of the legal tools a creditor has available to collect a judgment and then positioning assets in a way to defeat the same collection tools.
How Long Does a Judgment Last in Florida?
In Florida, a judgment lasts for 20 years. The time period runs from the day the judgment is signed by the judge and entered by the court. This 20-year timeline is established by section 55.081 of the Florida Statutes. While a judgment can be renewed in Florida for an additional 20 years using a procedure called an action on a judgment, this is uncommon. The 20 year timeline means that a creditor can collect on the judgment at any time during the 20 years after its issuance.
People commonly misunderstand the difference between how long a judgment lasts and how long a judgment lien lasts in Florida. A judgment is an order entered by the court making the debtor liable to the creditor for the debt. A judgment lien is the recording of a monetary judgment with the Florida secretary of state, giving the holder of that judgment priority in collection for any property owned by the judgment debtor. The priority is against any other judgment creditors that subsequently record their own judgments.
While a judgment is good for 20 years in Florida, a judgment lien is valid for only 10 years. Once the 10 years of the judgment lien expires, the judgment creditor loses priority against other creditors, but still has a valid judgment for the remainder of the 20 year lifetime of the judgment.
If a judgment originates out of state and is domesticated in Florida, then the timeline begins on the day the judgment is entered by the foreign court.
How Do Creditors Find a Debtor’s Assets?
Florida debt collection laws provide judgment creditors numerous tools to find information about a debtor’s income and assets. The Florida Rules of Civil Procedure give civil litigants tools to discover information about their opposing party’s case. These general discovery tools include requests to produce documents, written answers to interrogatories, and depositions under oath. A judgment creditor can use all the same discovery tools made available to parties in general litigation to discover financial information about a judgment debtor. After a creditor locates a debtor’s assets, the creditor can then use collection tools to seize and liquidate the assets. Discovery of assets previously owned by the debtor provides the creditor clues about the debtor’s fraudulent transfers or conversions of these same assets to avoid collection.
After a court issues a money judgment the judgment creditor is permitted to ask the judgment debtor detailed and extensive questions about the debtor’s financial affairs. For example, the creditor can demand that the debtor disclose all assets in which the debtor has any legal or equitable interest, including assets owned jointly with a spouse, family members, or business associates. The creditor can ask broad questions about the debtor’s sale or transfer of assets in the past. The debtor must answer questions under oath and penalty of perjury. The creditor can also seek information from third parties such as an examination under oath of the debtor’s spouse and other family members.
Discovery in aid of execution in Florida refers to the legal process by which a judgment debtor is able to find (discover) debtor assets which may be subject to collection of a money judgment.
Deposition in Aid of Execution
A primary and effective discovery tool used for discovery in aid of execution is an oral deposition of the debtor under oath. A creditor can require a debtor to sit before a court reporter while the creditor asks questions about the debtor’s financial affairs and assets. The creditor can inquire about almost any aspect of the debtor’s finances including the debtor’s tax returns and all other personal matters.
Almost any question that could possibly lead to the creditor’s discovery of assets subject to execution is permitted. In most cases, the debtor’s deposition must take place in the county where the debtor resides. A creditor may not force the debtor to travel outside his residential county to the creditor’s place of business or to the creditor’s attorney’s law firm in another county. A creditor may take several depositions during the life of a judgment so long as the frequency of inquiry does not amount to unreasonable harassment.
Request for Production of Documents
The debtor must furnish to the creditor all documents the creditor reasonably requests related to the debtor’s financial affairs. Florida’s laws for discovery in aid of execution allow creditors to request copies of a debtor’s bank statements, check registers, cancelled checks, credit card statements, insurance policies, and tax returns. A creditor can request documents up to at least four years old and, in some circumstance, beyond four years. The debtor is required, upon request, to produce all documents that possibly could lead the creditor to discovery of the debtor’s assets available to satisfy the judgment.
The debtor is required to supply documents requested which are in the debtor’s custody or control. The debtor does not have to provide documents that the debtor does not have in his possession or cannot easily obtain.
Debtor’s Financial Statements
When an individual borrows money to start a business, or personally guarantees a commercial loan to an existing business, the bank typically requires the individual business owner to submit personal financial information and personal tax returns. In addition, lenders typically require individual borrowers or guarantors to periodically update their financial statements during the life of the loan and submit copies of annual tax returns.
A judgment creditor will often request copies of a debtor’s loan applications and updated financial statements previously submitted to the debtor’s lenders. Some borrowers exaggerate their assets when they apply for a loan. A judgment creditor may use a debtor’s inflated valuations and asset descriptions on lending documents to contradict the debtor’s attempt during deposition minimize the value of his assets.
Real Estate Ownership
Real estate, or real property, deeds are filed in the county where the real estate is situated. Each Florida county maintains an index of real estate ownership. Florida counties have digitized their legal records so that property ownership information is available by online search. Online property records are centrally linked to state and national databases.
Instead of guessing where a debtor might own real property, for a small fee a creditor can search real estate records throughout Florida with a single query. Computer searches quickly provide the debtor’s property ownership and other information such as date of purchase, mortgages, and property value. The same property search can identify whether the debtor holds any mortgages on someone else’s real estate to secure a promissory note payable to the debtor. If a creditor finds that a debtor is a mortgagee, the judgment creditor can proceed to garnish the underlying note and payment stream.
Florida debt collection laws also allow creditors to use public records to discover a debtor’s business interests. Florida public records do not include or reveal a debtor’s ownership interest in any particular entity, but they do disclose if the debtor is an officer or director of a corporation, manager of a LLC or limited liability company, or a registered agent.
Most owners list themselves in at least one of those capacities when they file annual reports with the Florida Division of Corporations. Once a creditor discovers a debtor is involved in a business in some capacity, the creditor will proceed to focus on the debtor’s ownership interests in subsequent discovery. The extent and nature of a debtor’s ownership in a business entity is usually revealed through the debtor’s tax returns or through the use of other discovery tools.
Cooperation Among Creditors
Collection agents who work for institutional lenders and large collection agencies develop personal contacts working in banks and other financial institutions.
The creditor’s personal contacts are an excellent source of financial information about judgment debtors. Any contact person with access to a company’s computer records can quickly tell a collection agent whether the debtor has a financial account at its institution. The judgment creditor can then serve a writ of garnishment on any institution which reports an account of significant balance. As in most businesses, personal relationships held creditor collection agents
Private investigators may perform asset searches as a service to judgment creditors. Some private investigation firms specialize in searching for bank accounts while other firms provide broader searches. Access to information over the internet has made investigator’s asset searches easier and more accurate.
Private investigators have at their disposal several sophisticated methods of asset discovery. For example, a private investigator can access your phone records. The investigator use reverse lookup tools to see whether the debtor has received toll free calls from financial institutions where the debtor may have assets. Some creditors employ private investigators to verify if a debtor actually resides at the property the debtor claims as his exempt homestead.
Technology and Social Media
Social media has made it easier than ever for creditors to discover the nature and location of assets. People often refer to assets and income in social media discussions. Social media is a revealing source of information about a debtor’s finances and things the debtor may have done to evade judgment collection.
Hiding Assets from Creditors
Asset protection does not involve hiding assets from judgment collection. People facing the collection of a judgment against them or their business should resist the urge to hide or misrepresent their assets during the creditor’s asset discovery procedures. Most of the information a debtor provides a judgment creditor during discovery in aid of execution must be certified as true under oath.
Hiding assets, misrepresenting asset values, and lying about prior transfers of assets amounts to perjury. Perjury not only is a crime, but once discovered it severely diminishes the debtor’s credibility before the judge. Judges tend to rule against any party who previously has lied to the court or to the adverse party.
The better option is to engage in asset protection planning so to make any assets your are concerned about more difficult to collect.
Creditor Collection Methods
Creditor collection methods outline how a creditor collects on monetary judgmetns under Florida law.
Judgment Lien Certificate
Florida debt collection law allows a judgment creditor to obtain a lien of all the debtor’s personal property located in Florida by filing a judgment lien certificate with the Florida Secretary of State. Any subsequent sale or other conveyance of personal property remains encumbered by the judgment lien. Recording a certified copy of the judgment in any county creates a judgment lien on the debtor’s real property located in the same county, other than homestead property. The recorded lien will prevent the debtor from making an insured transfer of real property title to a mortgagee or buyer.
Execution and Levy
Execution, or execution and levy, refers to a collection remedy used to obtain a debtor’s tangible personal and real property. Execution and levy are used to seize real estate, stock in corporations, and the debtor’s personal property. Assets frequently subject to execution include the debtor’s automobiles, stock in private companies, and valuable home possessions. The creditor can execute against the debtor’s property in possession of a third party.
A creditor must identify in advance the debtor’s property subject to execution and levy. The county sheriff executes the levy by physically seizing the debtor’s property. The sheriff then sells the debtor’s property at auction. The sheriff applies the sales proceeds, less expenses, to satisfy the judgment. Any preexisting liens on the property must be paid before any money is available to pay the judgment creditor. The debtor can bid for his own property at the auction.
Seizure of Vehicles
In Florida, a judgment creditor can take or seize a vehicle through a sheriff levy and execution. Creditors frequently direct the sheriff to levy upon automobiles which a debtor owns free and clear. Once the car is taken by the sheriff’s office, the car will be sold at public auction. The judgment creditor will be entitled to the proceeds of the sale minus sheriff and auction fees. Taking the debtor’s car in this manner exerts pressure on the debtor to pay the judgment.
Creditors typically do not levy upon automobiles subject to significant car loans and liens because few people will pay significant money to buy at auction a car subject to a lien. In addition, the lender on the vehicle must be paid first from the proceeds of any sheriff sale. A car with significant debt may therefore worth very little to a judgment creditor.
If a vehicle is leased by a judgment debtor, it is not actually owned by the debtor. For that reason, it cannot be subject to levy and execution for a judgment against that debtor.
Levy on Privately Held Businesses Interests
Creditors can use execution and levy against shares of common stock the debtor owns in his own business. If the debtor states that his privately held corporation has not issued stock, or that the debtor has misplaced the stock certificates, the creditor can obtain a court order directing the corporation to reissue stock certificates. The creditor can direct the sheriff to sell the stock at public auction.
However, the creditor may not levy upon the debtor’s membership interest in a multi-member LLC, or limited liability company. The creditor’s sole remedy is a charging lien on LLC profit distributions payable to the debtor. A debtor’s membership interest in a multi-member LLC with a properly drafted LLC operating agreement in Florida can be difficult for a creditor to attack.
What Personal Property Can Be Seized in a Judgment?
Sometimes clients want to know if their tangible personal property can be seized to collect a judgment in Florida. A judgment creditor can try to seize a debtor’s home furnishings. A creditor must direct the sheriff to seize specific items of personal property, and therefore, a creditor cannot get a blanket attachment against “all the stuff” in the debtor’s house. Creditors cannot break into a debtor’s house and grab property without court permission.
If the creditor identifies non-exempt assets within the debtor’s house, a court may issue a “break order” to assist the sheriff’s seizure of these assets. Some courts will issue break orders without advance warning to the debtor. Florida’s homestead exemptions do not shield the debtor’s tangible personal property held inside the homestead from seizure.
Garnishment of Money
Garnishment is the debt collection tool a creditor uses to seize any property owed to the debtor by a third party. Money the debtor holds in a financial account constitutes a debt owed the debtor from the financial firm. Wages and salary are debts owed the debtor from his employer
The writ of garnishment authorizes the judgment creditor to collect judgments from the debtor’s bank accounts, future wages and commissions, financial accounts holding publicly traded securities, and any debts or rights to money payable to the debtor. Florida statutes provide that a creditor initiates a garnishment by obtaining a writ of garnishment from the clerk of court. The creditor then serves the writ upon the debtor’s employer, bank, financial institution, or other person obligated to the debtor. A garnishment writ notifies the third party that they must retain an asset or money owed to the debtor and to thereafter pay the money as the court shall direct.
The creditor is not required to provide advance notice to the debtor prior to serving a writ of garnishment. Money subject to garnishment must be in the actual possession and control of the garnished third party. The money must be owed to the debtor without condition and the amount owed must be liquidated (fixed) in amount. In most instances, a writ of garnishment pertains to current debts and obligations owed to the debtor. Only debts owed to the debtor at the time the writ is served are frozen and subject to garnishment. The writ of garnishment does not apply to money owed to the debtor in the future, except for wages and salary as discussed below.
The debtor’s salary and wages may be subject to continuing writ of garnishment. A single writ of garnishment served upon the debtor’s employer garnishes all future non-exempt wages, salary, and commissions payable to the debtor. The garnishment continues in effect until the judgment is paid, the debtor leaves employment, or the debtor files bankruptcy.
A creditor cannot get a continuing writ of garnishment against payments other than wages. For example, money payable by a company to a debtor working as an independent contractor, or rents owed to a landlord, are not subject to continuing writs.
Florida debt collection law exempts some types of debts from garnishment. For example, wages payable to a head of household are exempt without limitation from continuing wage garnishments. Periodic payments due to the debtor from social security, annuities, and retirement plans also cannot be garnished in Florida. Garnishment procedures are complicated, and garnishment procedures are strictly construed and enforced in Florida courts. Therefore, some debtors can defeat garnishments by finding procedural flaws in the garnishment writ and application.
Under Florida judgment collection laws, if a creditor cannot satisfy his judgment through garnishment, attachments, and some other legal tools pursuant to a writ of execution, the creditor may initiate proceedings supplementary to execution pursuant to Florida Statute 56.29. Proceeding supplementary is the widest ranging and most comprehensive creditor remedy. Proceedings supplementary assists judgment creditors’ satisfaction of their judgments by using equitable remedies against a variety of types of debtor rights and property which are not subject to garnishment, attachment, or execution and levy.
Under Florida law, proceedings supplementary includes the following creditor collection remedies:
- Avoiding fraudulent transfers: Creditors may sue third party recipients of alleged fraudulent transfers to reverse the transfer or obtain a judgment against the recipient for the value of property transferred. The court may enter an order to apply transferred real property to satisfy a judgment or have the sheriff seize fraudulently transferred personal property.
- Reversing fraudulent conversion: Creditors may obtain a court order reversing the debtor’s use of non-exempt assets to purchase or obtain an exempt asset if the purchase was intended to protect the non-exempt assets from creditors. An example of a fraudulent conversion is using non-exempt cash to buy an exempt annuity contract.
- Piercing corporate veil: Creditor may sue individuals to enforce judgment against a corporation where the corporation has been established to defraud creditors, or where the company is the alter-ego and continuation of a prior business.
- Reverse piercing: Creditor sues a corporation to satisfy judgment against an individual who conveyed personal assets to an alter-ego corporation to avoid collection.
- Charging Liens: A judgment creditor can apply for a charging lien against the debtor’s ownership of limited partnerships and limited liability companies.
- Injunctive Relief: Creditors may seek injunctions against the debtor preventing subsequent transfer of the debtor’s property. The creditor must demonstrate that fraudulent transfers are immanent. The injunction is essentially an asset freeze.
- Receivership: In extraordinary circumstances, a creditor may convince a court to appoint a receiver to take possession of the debtor’s property. The receiver manages the debtor’s property and preserves its value during collection procedures.
- Equitable liens. A creditor may have a court declare an equitable lien against the debtor’s real property including, when applicable, the debtor’s homestead.
Examination of the Debtor
The proceedings supplementary statute enables a judgment creditor to compel the debtor to appear in court and testify before a judge or magistrate about the debtor’s assets. The creditor may require the debtor to bring to the court hearing specific documents or property. The examination of the debtor must be set in the county in which the debtor currently resides. The creditor has broad authority to examine the debtor on all matters and things pertaining to the debtor’s personal or business interest, and the creditor and the judge may ask any question that, directly or indirectly, may aid in satisfying the judgment. The creditor may also examine third parties who may be the debtor’s “alter-ego” or who may be transferees of the debtor’s property.
Turnover of Property
A judgment creditor may use proceedings supplementary to gain control of a debtor’s non-exempt property either by ordering the debtor or third parties to turn over assets located in Florida. The court is authorized to hold the debtor, or others in possession of the debtor’s property, in contempt for failing to obey a property turnover order. However, a court usually may not require a debtor to turn over assets located in jurisdictions outside the state, or to turnover the debtor’s property located in a different Florida county. The creditor must domesticate the judgment in the foreign jurisdiction and reach such assets through the court proceedings in the foreign jurisdiction, or in Florida, the creditor should seek a turnover order from a court in the Florida county where the property is situated.
Using Proceedings Supplementary to Undo Fraudulent Transfers of Personal Property
Proceedings supplementary may be used to reverse a debtor’s fraudulent transfer of personal property. The statute allows a court to order a transferee of personal property to turn over to the creditor any personal property that a debtor conveyed to a spouse, relative, or other insider within one year prior to the initiation of the underlying lawsuit if the conveyance was intended to delay or hinder the creditor. At least one court has held that the four year statute of limitations otherwise applicable to fraudulent transfers does not apply to actions directed against transfers of personal property in the context of a proceedings supplementary. A creditor may initiate fraudulent transfer actions against personal property transfers at any time during the 20 year life of a Florida judgment.
Initiation of Proceedigns Supplementary
A creditor initiates proceeding supplementary by filing a motion with the court that issued the final judgment. The statute requires the creditor to include certain allegations in the motion. Proceedings may be commenced at any time during the 20-year life of a final judgment.
Collection by Federal Agencies
United States federal agencies, such as the Federal Trade Commission (FTC), sometimes sue individuals in federal court for money damages and fines for violation of federal rules and regulations. Frequent example are Federal Trade Commission suits against telemarketer firms or violators of anti-trust laws, or suits by the Securities and Exchange Commission (SEC) for violation of investment regulations. The federal government’s collection of judgments is different, in some respects, from a private creditor’s collection of a judgment for damages.
The Federal Debt Collection Procedures Act (Chapter 176 of Title 28 of the United States Code) (FDCPA or the Act) provides the federal government tools to collect debts owed to government agencies. The Act has separate subchapters dealing with pre-judgment remedies, post-judgment remedies, and the reversal of fraudulent transfers. In addition, some federal agencies, such as the IRS or the SEC, have statutes that provide enhanced collection procedures for debts owed to their agency.
The U.S. government’s post-judgment collection tools are comparable to state law collection remedies and include judgment liens on real property, garnishment of accounts and debts, and levy on personal property.
A debtor may apply Florida law asset exemptions against federal agency collection. A defendant debtor may assert property exemptions available under applicable state law in the jurisdiction where the debtor has resided for the most recent 180 day period. Note that the defendant must have resided in Florida for 180 days to assert Florida exemptions under the federal collection statute, whereas there is no minimum residency time period in state court collection proceedings where Florida exemptions apply immediately upon Florida residency.
The Florida residency time requirement in federal collection does not apply to a tenants by entireties defense. Tenants by entireties is a property description, not a statutory “exemption,” and the federal statute does not impose a 180 day Florida residency requirement for individual debtors to protect tenants by entireties property.
Similar to Florida law, the federal collection law requires the debtor assert an exemption claim in court. The debtor’s filing of an exemption statement stays further government actions to dispose or take possession of the property until the court considers the exemption claim. Moreover, the government may not seize or interfere with property the government has reason to know is exempt even if the debtor has not yet filed an exemption application.
U.S. agencies may pursue a defendant’s property even before the government agency’s claims are fully adjudicated in court and before the court enters a final judgment against the defendant debtor. The FDCPA provides specific pre-judgment remedies including attachment, garnishments, or appointment of a receiver. The government may apply for attachment any time after it files its initial complaint. The Act requires that the government allege in a sworn statement a statutory justification to attack a defendant’s assets before judgment. These justifications include, for example, the allegation that the defendant is about to leave the jurisdiction of the court, or that the defendant is about to fraudulently transfer or fraudulently covert assets with the effect of hindering or delaying the United States’ collection.
Pre-judgment remedies are also available in most states, including Florida. What makes the U.S. government’s pre-judgment remedies so powerful is the absence of a bond requirement. Under Florida law a creditor that seeks to freeze a defendant’s assets before getting a judgment must post a bond to compensate the debtor in the event the debtor prevails in the litigation or the assets are found to be exempt. The cost of a pre-judgment collection bond is significant. The costs plus liability risks deter most state court civil creditors from seeking any type of pre-judgment asset freeze against civil litigation defendants.
The United States and its agencies are exempt from a bond requirement associated with pre-judgment federal collection. Section 28 U.S C. 3101(C)(3) states that no bond is required by the United States as a condition of pre-judgment actions against a defendant’s assets. For this reason, federal agencies will most often seek immediate freeze of a defendant’s assets upon filing a civil action. The possibility of threat of pre-judgment collection asset freezes makes difficult asset protection planning against federal regulatory litigation.
Enforcement of Out-of-State Foreign Judgments
A creditor’s judgment against a Florida resident obtained from a court in another state or another country is referred to as a foreign judgment. A creditor may enforce a foreign judgment in Florida and through Florida courts by following procedures set forth in Florida Statute § 55.501. The process is referred to as the domestication of a foreign judgment.
There are statutory procedures to domesticate a foreign judgment in Florida. The foreign creditor must first record a certified copy of the foreign judgment in Florida courts.
When the foreign judgment is recorded, the clerk of court is required to notify the debtor. The debtor then has 30 days to contest the validity of the judgment. There are limited reasons available to contest the recording of a foreign judgment (for example, lack of jurisdiction or fraud). The debtor cannot retry the foreign judgment on its legal or evidentiary merits.
A domesticated foreign judgment is enforced as a Florida judgment pursuant to Florida’s debt collection laws and rules. The creditor can enforce the domesticated Florida judgment for up to twenty years. The twenty-year time limit runs from the date the judgment was issued by the foreign state’s court, not from the date of Florida domestication.
What to Do Next
Our clients often want to know what they can do to become as judgment proof in Florida as possible, or how to protect their assets in general. Our clients generally are facing litigation or already have a judgment against them. For advice about what to do about your current legal situation, call to schedule a consultation or schedule an appointment online.
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