Collections Attorney Archives - Wetherington Hamilton, P.A.

Collection and Domestication of an out of state Judgment in Florida

July 31, 2019/in Articles, Debt Collection/by Ted Hamilton

Collecting on a Foreign Judgment in Florida

Our firm is frequently asked to collect and domesticate out of state judgments in Florida. Debtors often move to Florida from other states when faced with a Judgment due to the unlimited homestead exception in Florida. An out of state judgment is considered a “foreign” judgment in Florida. The Full Faith and Credit Clause of the United States Constitution requires each state to recognize the judgments of the other states except in very limited circumstances.

Florida has adopted the Revised Uniform Enforcement of Foreign Judgment Act. The Florida enforcement of Foreign Judgments Act (FEFJA) requires the creditor to file an affidavit containing certain information in order to recognize the judgment in Florida. Errors in the filing of these affidavits can result in challenges to the filing. To file the judgment in Florida a lawsuit a case must be filed in the County where the debtor is located. The filing must include a certified copy of the original judgment along with an affidavit. The Affidavit must contain the name, social security number, if known, and the last known post office address of the judgment debtor and of the judgment creditor. The clerk will then send notice to the debtor. Our firm also routinely also sends a notice to the debtor. The debtor has thirty days to challenge the judgment.

REASONS FOR NON-RECOGNITION OF A FOREIGN JUDGMENT IN FLORIDA

The judgment debtor has 30 days to challenge the recording of the Foreign Judgment in Florida. In order to contest the judgment, the debtor must record a lis pendens in the public records and file a new lawsuit contesting the judgment. Just objecting to the judgment being recorded is not enough. A new suit must be filed. In order to successfully challenge the judgment, the judgment debtor will have to show that the law of the state where the judgment was entered was not followed as to jurisdiction. Thus, for example, not following the service statutes in the state where the judgment arose would result in the judgment not being recognized. However, when the foreign state laws allow for the entry of a judgment without service with only mail notice, Florida must recognize this judgment.

STATUTE OF LIMITATIONS

Florida courts have also ruled that the Florida 20 year statute of limitation to a foreign judgment filed in Florida. Thus, although the state where the judgment originated might have a shorter statute of limitations, in Florida the 20 year statute applies once the judgment is recorded in Florida.

In short, the domestication of out of state judgments requires clear knowledge of Florida statutes. Failure to follow these statutes precisely can delay your collections efforts.

By: Theodore J. Hamilton, Esq.

Why is OJ Simpson Really Moving to Florida?

October 9, 2017/in Articles, Debt Collection/by Ted Hamilton

Recently, the Florida Attorney General, Pam Bondi, quipped that OJ Simpson was not welcome in Florida. Simpson’s attorney hit back hard saying his client was moving to Florida no matter what.

But Simpson’s attraction to Florida likely goes well beyond the fact that he may have relatives here. Among the States, Florida has some of the most broadly worded protections available to debtors wishing to shelter their assets from creditor attachment. With these protections, Simpson and others facing pressure from creditors often move to Florida to ensure their assets are judgment proof.

The primary Florida exemption is the homestead exemption. In Florida, a debtor’s homestead is completely protected from attachment by an unsecured creditor. To obtain homestead status, the debtor must merely register to vote from the Florida address, get a driver’s license with the Florida address and intend to reside at the property full time. Other criteria may help, but these are the main criteria for qualification for the exemption. So when Mr. Simpson buy’s his big house in Florida and piles all of his cash into it, these funds are very likely exempt from attachment by any unsecured creditor.

In addition to the homestead exemption, pensions and other 401k interests are completely exempt from attachment. Thus, if you have a 401k with 2 million in it, except in certain circumstances, a creditor cannot attach this money to pay that 100,000 judgment. This also applies to cash value of life insurance policies.

Regular wages used to support a family are also exempt from attachment in Florida to a certain extent.

Finally, Florida has a very broad marital exemption, making jointly held marital property difficult for a creditor to attach if the debt is due by only one spouse.

Now for the good news. There are ways to attack money that a debtor has moved into “exempt” assets. Collections attorneys who have experience know how to use the Florida Uniform Fraudulent Transfer act and other such actions in Florida to attack transfers by a debtor into exempt assets. Such transfers may be reversible in certain circumstances. Furthermore, transfers to a spouse may also be reversible if done to defraud a creditor.

Wetherington Hamilton, P.A. is a creditor’s rights attorney firm specializing in the collection of debt. Our services cover debt collection in the Central Florida Area including Hillsborough County debt collection, Polk County debt collection, Pasco County debt collection, Pinellas County debt collection, Sarasota County debt collection and Manatee County debt collection among others. Call us at (813) 676-9082 if you need a judgment collection in Florida.

Wetherington Hamilton founding attorney, Theodore J. Hamilton, has over 20 years of experience in handling real estate transactions and litigation. Attorney Hamilton has particular experience in matters involving complex litigation and complicated real estate matters having represented title insurance companies and individuals throughout the state of Florida. He can be reached by phone at (813) 676-9082 or via email at TJH@whhlaw.com.

Why You Must Always Comply with Court Orders

June 26, 2017/in Articles, Debt Collection, General/by Ted Hamilton

Currently, my practice focuses primarily in the area of collections, which in Florida, can be broken down into two main steps- they are obtaining Judgment and execution or collecting sums due as a result of the Court having entered Final Judgment.

Once final judgment has been entered, there are various methods available for collection of that judgment. Often, the Final Judgment contains language requiring defendants to complete what is known as a Fact Information Sheet as provided in Florida Rule of Civil Procedure Form 1.977, or defendants may be subpoenaed to appear at deposition in aid of execution.

Parties to a case are all required to comply with court orders; when a party fails to do so, the Court has the authority to find an individual in contempt. The individual is given the opportunity to purge herself/himself of the contempt by complying with the Court Order. The court may order monetary or other sanctions for failure to comply with a Court Order. I regularly hear judges tell defendants that there is no longer debtor’s prison and that they do not send people to jail for not having money to pay their debts, but when people fail to provide a fact information sheet as ordered by the Court or fail to appear at deposition after having been served, they can be found in contempt of court and, after proper notice (personal service), arrested. This is never our goal, but it can happen.

Approximately ten years ago, I brought my then 9 year-old daughter to work on “bring your daughter to work” day. The day began as a normal day (and I had no court appearances scheduled that day), but soon after arriving at work, I was told that I had to go to court because a defendant had been “picked up” for not appearing at a deposition. So I brought my daughter to the court house with me. When we arrived, a woman, our defendant, dressed in an orange jump suit and in hand cuffs, was in the court room. After a hearing in front of the presiding Judge, I took her deposition while my daughter waited patiently nearby; the Judge then ordered the woman’s immediate release. As you might imagine, this made quite an impression on my young daughter.

So what is the bottom line? Parties cannot be arrested for not having money to pay their debts…but parties to a case are all required to comply with Court Orders.

Joan W. Wadler has been a member of the Florida Bar since 1991. Her practice concentrates on Collections and Commercial Litigation, Real Estate Litigation and Associations Law.

What Happens When Someone Attempts to Avoid Being Served?

July 15, 2016/in Articles, Debt Collection, General/by Ted Hamilton

When filing a civil lawsuit in the state of Florida, initial service of process on the defendants named in the lawsuit is critical in order to confer jurisdiction on the courts. The Florida Rules of Civil Procedure and Florida Statutes govern who may serve process upon whom and how service of process may be perfected. See Rule 1.791, Fla. R. of Civ. P. and Chapters 48 and 49 of the Florida Statutes. Without perfecting service of process on the parties, the court lacks personal jurisdiction or authority over the parties and therefore lacks the authority to enter judgment. There are various forms of service, including personal or individual service, substitute service, and constructive service. Personal and substitute service give the Court personal jurisdiction over the parties who have been served, while constructive service gives the court in rem jurisdiction, over something such as property, rather than someone.

So what happens when a person attempts to avoid service of process? Can the court obtain jurisdiction over that person? As one might expect, the answer is, it depends. The statutes and rules regarding service of process must be strictly adhered to in order to perfect service on an individual. Florida Statute 48.031 (1) (a) states as follows:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.

Interesting situations and questions of law can arise when individuals attempt to avoid being served. If a deputy or process server finds a defendant to be at home, but that person refuses to answer the door or attempts to hide, then at least one court has held that service of process was sufficient when the deputy “…read the summons in a loud voice and announced that he was leaving a copy of the summons and complaint on the doorstep for Mr. Haney and another copy with Mr. Haney as service on his wife.” Olin Corp. v Haney, 245 So.2d 669 (Fla. 4^th DCA 1971). In that case, the deputy attempting to serve the defendants had observed Mrs. Haney leave the house and Mr. Haney remained in the doorway. When the deputy identified himself, Mrs. Haney ran into the house in an apparent attempt to avoid service.

The point is that in order for the court to have the authority to proceed with a civil case in Florida, service of process must be perfected. The experienced collections attorneys at Wetherington Hamilton know how to handle this issue, even when a defendant is attempting to avoid service.

Joan W. Wadler, Esq.

The Doctrine of Accord and Satisfaction

May 9, 2016/in Articles, Debt Collection/by Ted Hamilton

Should you or should you not accept a payment for less that the full amount owed when it is indicated to be for full payment? It is always best to not accept a check for less that the full amount owed if there is any chance that it can be interpreted as being accepted as settlement in full. However, if you do, it may not mean that the debt is indeed settled in full by acceptance of the check.

The doctrine of accord and satisfaction is, “the substitution of a new agreement between the parties in satisfaction of a former one.” Such a compromise will effectively relieve a debtor from the remaining obligation only if a separate agreement has been established between the two parties to the effect that the payment of less than the full amount of the original debt satisfies the obligation.

Although the doctrine of accord and satisfaction is a common law doctrine of contract law, it has been statutorily codified in Florida. Two separate statutes govern the application of this doctrine, depending on whether the debt in question is either disputed and unliquidated (an unknown amount) or undisputed and liquidated (a known amount).

One statute deals with accord and satisfaction by use of an instrument (a check) when a debt is either unliquidated or disputed as to the amount or existence of a debt. The statute sets forth that, “the claim is discharged if the person against whom the claim is asserted (the debtor) proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.” F.S.A. § 673.3111(2). In contrast, the other statute deals with accord and satisfaction in the context of liquidated claims or claims that were not disputed by the parties. The statute provides that, “when the amount of any debt or obligation is liquidated (known), the parties may satisfy the debt by written instrument other than by endorsement on a check for less than the full amount due.” F.S.A. § 725.05. The plain language of the statute appears to prevent the satisfaction (full payment) of an undisputed debt by less than the amount due through a notation on an endorsed check stating that, “the check is payment in full.”

The key to determining whether partial payment of a debt acts as a satisfaction of the debt, is whether the tender of partial payment of the debt constitutes a binding contract that effectively supersedes the original debt obligation. The new contract can either be express or implied from the surrounding circumstances. With undisputed claims, a creditor’s act of depositing a check for less than the amount owed will not constitute an implied satisfaction of the original debt, even if, the check had been enclosed in a letter stating that it was tendered in full satisfaction of the debt, else to be returned, or if words of similar import had been written on the check. It has also been held that an endorsed check for less than the amount owed on the debt does not satisfy the obligation regardless of whether the endorsed check includes the condition that the amount, is a full and complete settlement, of the debt.

While there are protections in place for a creditor who accepts a check for less than the full amount without the intention that it is for settlement in full; it is risky as there may be an issue as to whether the debt is actually disputed or liquidated. Whenever you accept payment when it is indicated that it is for settlement or payment in full, you may have precluded your ability to recover the full amount owed. The attorneys at Wetherington Hamilton have experience representing creditors in many different situations. Please contact the author for more information.

Thomas K. Sciarrino, Esq.

Perfecting a Judgment Lien

January 29, 2016/in Articles, Debt Collection/by Ted Hamilton

A judgment obtained by a Florida court becomes a lien on the judgment debtor’s real property when it is properly recorded. The creditor’s primary interests in perfecting the judgment as a lien on a debtor’s property are two-fold: (1) first and foremost, strict technical compliance with applicable rules and statutes; (2) to move as quickly as possible to perfect the lien after obtaining a judgment. Failure to adhere to technical requirements may result in loss of priority as against later judgment creditors or transfers of property by the debtor, unaffected by a creditor’s judgment lien. Prompt action to perfect the judgement lien is necessary to establish priority against other creditors, and to obtain execution before the debtor has sufficient opportunity to transfer or assign his/her assets.

Immediately upon obtaining a final judgment, the creditor must obtain certified copies of the judgment and record a certified copy in any and all counties where the judgment debtor owns real property. Recordation of a certified copy creates a lien on the judgment debtor’s real property in that county. Creditors need to be cautious and make sure a certified copy (obtained from the clerk where the judgment has been entered) has been recorded. Many courts will record a copy of the judgment after entry, but this does not create a judgement lien. A certified copy must be recorded to be in compliance with Florida law.

It also must be noted that there is no lien if the address of the judgment creditor is not included. A judgment does not become a lien on real property unless the address of the person who has a lien as a result of such judgment is contained in the judgment or an affidavit with such address is simultaneously recorded with the judgment, order, or decree.

Thomas K. Sciarrino, Esq.

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Wetherington Hamilton, P.A.

Wetherington Hamilton, P.A.