OUTLINE FOR POST-JUDGMENT/COLLECTIONS...
Transcript of OUTLINE FOR POST-JUDGMENT/COLLECTIONS...
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OUTLINE FOR POST-JUDGMENT/COLLECTIONS CFFLIOC PRESENTATION
I. Florida Statutes and Rules
A. Relevant Chapters of Florida Statutes:
1. Chapter 30 - Sheriffs (primarily § 30.30)
2. Chapter 55 -Judgments
3. Chapter 56 - Final Process
4. Chapter 76 -Attachment
5. Chapter 77 -Garnishment
6. Chapter 78 - Replevin
B. Relevant Rules of Procedure
1. Fla. R. Civ. P. 1.550 / Fla. Fam. L. R. P. 12.550 -
Executions and Final Process
a. 12.550 - "Executions and final process shall be
governed by Florida Rule of Civil Procedure 1.550."
2. Fla. R. Civ. P. 1.560 / Fla. Fam. L. R. P. 12.560 -
Discovery in Aid of Execution
a. 12.560 specifically includes availability of Fla. R. Civ.
P. Form 1.977 (Fact Information Sheet) and the Final _
Judgment Enforcement Paragraph.
3. Fla. R. Civ. P. 1.570 / Fla. Fam. L. R. P. 12.570 -
Enforcement of Final Judgments
a. 12.570 - "Enforcement of judgments shall be governed
by Florida Rule- of Civil Procedure 1.570. Money
judgments, as governed by rule 1.570(a) shall include,
but not be limited to, judgments for alimony, child
support, attorneys' fees, suit money, and costs, and
equitable distribution"
4. Fla. R. Civ. P. Form 1.905 -Writ of Attachment
5. Fla. R. Civ. P. Form 1.914 - Execution
6. Fla. R. Civ. P. Form 1.937 -Complaint for Replevin
7. Fla. R. Civ. P. Form 1.995 -Final Judgment of Replevin
II. Fact Information Sheet /Discovery in Aid of Execution
F/a. R. Civ. P. 1.560 and F/a. Fam. L. R. P, 12.560 -Disco very in Aid of
Execution
(a) In General. In aid of a judgment, decree, or execution the
judgment creditor or the successor in interest, when that interest
appears of record, may obtain discovery from any person, including
the judgment debtor, in the manner provided in these rules.
(b) Fact Information Sheet. In addition to any other discovery
available to a judgment creditor under this rule, the court, at the
request of the judgment creditor, shall order the judgment debtor
or debtors to complete form 1.977, including all required
attachments, within 45 days of the order or such other reasonable
time as determined by the court. Failure to obey the order may
be considered contempt of court.
(c) Final Judgment Enforcement Paragraph. In any final judgment,.
the judge shall include the following enforcement. paragraph if
requested by the ;:prevailing party. or attorney:
"It is further ordered and adjudged. that the judgment debtors)
shall complete under oath Florida Rule of Civil. Procedure
Form .1.977 (Fact Information Sheet), including all required
attachments, and serve it on the judgment creditor's attorney,
or the judgment creditor if the judgment creditor is not
represented by an attorney, within 45 days from the date of
this final judgment, unless the final judgement is satisfied or
post-judgment discovery is stayed..
Jurisdiction of this case is retained to enter further orders that
are proper to compel. the judgment debtors) to complete form
- --- ---1-97~; irrciadrng ail= regt~ir-ed- -attachr-~er~~s; --aid _se-r-ve-- z--on—the
judgment creditor's attorney, or -the judgment creditor if the
judgment creditor is not represented by an attorney."
(d) Information Regarding Assets of Judgment Debtor's Spouse. In
any final judgment, if requested by the judgment creditor, the court
shall include the additional Spouse Related Portion of the fact
information sheet upon a showing that a proper predicate exists for
discovery of separate income and assets of the judgment debtor's
spouse.
(e) Notice of Compliance. The judgment debtor shall file with the
clerk of court a notice of compliance with the order to complete
form 1.977, and serve a copy of the notice of compliance on the
judgment creditor or the judgment creditor's attorney.
I11. Judgment Lien on Personal Property
A. ~ 55.202, F/orida Statutes - Judgments, orders, and decrees; /ien on
~~~~e~~i pP~pe~%y
(2) A judgment lien may be acquired on a judgment debtor's
interest in all personal property in this state. subject to execution
under s. 56.061, other than fixtures, money, negotiable
instruments, and mortgages.
(a) A judgment lien is acquired by filing.- a judgment lien
certificate in accordance with ~ s: 55:203 with the Department of
State after the judgment has become final and if the time to
move for rehearing has lapsed, no motion for rehearing is
pending, and no stay of the judgment or its enforcement is
then in effect. A court may authorize, for cause shown, the
filing of a judgment lien certificate before a judgment has
become final when the court has authorized the issuance of a
writ of execution in the same matter. A judgment lien
certificate not filed in compliance with this subsection is
permanently void and of no effect.
(c)- Exeept as-provided -_ in--~ --55~08~1a~~ffectiv~~iate _o-f a-
judgment lien is the date, including the time of day, of filing.
Although no lien attaches to property, and a creditor does not
become a lien creditor as to liens under chapter 679, until
the debtor acquires an interest in the property, rip ority among
competing judgment liens is determined in order of filing date
and time.
B. Judgment Lien Certificate and Amendment Forms -
http://form.sunbiz.org/jlien forms.html
1. Mail completed forms) with the appropriate fee to the Division
of Corporations for processing and filing or E-file through
https:/lefile.sunbiz.or /g ~lefile html.
C. Costs
1. Judgment Lien With One Debtor $20.00
2. Each Additional Debtor $5.00
3. Each Attached Page, if Necessary $5.00
4. Certified Copy Requested $10.00
IV. Judgment Lien on Real Property
A. § 55.10, F/a, Stat, -Judgments, orders, .and decrees; /ien of a/l,
genera//y; extension of liens; transfer of liens to other security.
(1) A judgment, order, or decree becomes a lien on real. property
in any county when a certified copy of it is recorded in the
official records or judgment lien record of the county, whichever
is maintained at the time of recordation, provided that ..the
judgment, order, or decree contains the address of the person
who has a lien as a result of such judgment, order, or decree
or a separate affidavit is recorded simultaneously with the
iudgment, order, or decree stating the address of the person who
has a lien as a result of such judgment, order, or decree. A
judgment, order, or decree does not become a lien on real
property unless the address of the person who has a lien as a
result of such judgment, order, or decree is contained in the
judgment, order, or decree or an affidavit with such address is
simultaneously recorded with the judgment, order,.. or decree.
If the certified copy was first recorded in a county in accordance
with this subsection between July 1, 1987, and June 30, 1994,
then the judgment, order, or decree shall be a lien in that
county for an initial period of 7 years from the date of the
recording. If the certified copy is first recorded in accordance with
this subsection on or after July 1, 1994, then the judgment,
order, or decree shall be a lien in that county for an initial
period of 10 years from the date of the recording.
(2) The lien provided for in subsection (1) or an extension of
that lien as provided by this subsection may be extended for an
additional period of 10 years, subject to the limitation in
subsection (3), by rerecording a certified copy of the judgment,
order, or decree prior to the expiration of the lien or the
expiration of the extended lien ~n~ by simultaneously. recording
an affidavit with the current address of the person who has a
lien as a result of the judgment, order, or decree. The extension
shall be effective from the date the certified copy of the
judgment, order, or decree is rerecorded. The lien or extended
~. lien will not be extended unless the affidavit with the current
address is simultaneously ,recorded.. - ti _.
V. Garnishment
A. ~ 6>. 72, F/orida Statutes. Attachment or garnishment of amounts due
for a/imony or chi/d support. —statute breakdown
1. (1) So much as the court orders. of the money or other
things due to any person or public officer, state or county,
whether the head of a family residing in this state or not,...
a. § 61.12 created an exception to the exemption from
attachment of garnishment that may be claimed when
money is due the head of a family for personal
services and labor.
i. Exception to the exemption does not apply where
arrearages in alimony, suit money, or child support
have been reduced to final judgment. See
Sweeten v. Anderson, 414 So. 2d 258 (Fla. 4th
DCA 1982).
b. Under Chapter 77, Head of family wages are subject
to exemptions from garnishment.
i. See § 222.11, Fla. Stat. — Exemption of wages
from garnishment.
2. when the money or other thing is due for the personal labor
or service of the person or otherwise, is subject to attachment
or garnishment to enforce and satisfy the orders and
judgments of the court of this state...
3. for alimon suit money, or child support, or other orders in
proceedings for dissolution, alimony, or child. support, or other
orders in proceedings for dis~ol~ti~an, alimony, or child
support;...
a. Attorney's fees have been held to be suit money and
the collection thereof may- be enforced in the same
manner as alimony and child support upon a proper
judgment for attorney's fees being entered. City of
-, = - ~- . -Tampa v. Hines, 596 So.~= 2d 160 , (Fla.. 2d .DCA ..1.992).,:_.
4. Subsection 61.12(2) provides that a court may issue a
continuing writ of garnishment to an employer for periodic
payment of -child support or alimony or both. Subsection (2)
does not reference suit money, therefore, a continuing writ is
not available for attorneys' fee awards. See Reyf v. Reyf,
-620 So. 2d 218 (Fla. 3d DCA 1993).
5. When past due payments are reduced to judgment, the
provisions of Section 61.12 do not apply, and the parties are
governed by the general law relating to garnishment after
judgment. Soko/sky v. Kuhn, 405 So. 2d 975 (Fla. 1981)..
B. Chapter 77, F/orida Statutes —Garnishment
1. § 77,01 Right to writ of garnishment.—Every person_ or entity who
has sued to recover a debt or has recovered judgment in any
court against any person or entity has a right to a writ of
garnishment, in the manner hereinafter provided, to subject any
debt due to defendant by a third person or any debt not
evidenced by a negotiable instrument that will become due
absolutely through the passage of time only to the defendant
by a third person, and any tangible or intangible personal
property of defendant in the possession or control of a third
person. The officers, agents, and employees of any companies
or corporations are third persons in regard to the companies
or corporations, and as such are subject to garnishment after
judgment against the companies or corporations.
2. ~ 77.03 /ssuance of writ after judgment.—After judgment has been
obtained against defendant but before the writ of garnishment
is issued, the plaintiff, ih~ plaintiff's agent or attorney, Thal!
file a motion (which shall not be verified or negative
defendant's exemptions) stating the amount of the judgment.
-The motion may be filed and the writ issued either before or
after the return of execution.
,3. ~ 77._p305 Continuing writ of garnishment against sa/ary or wages.—
Notwithstanding any other provision df this`' chapter, if salary or ~ .~- :-
wages are to be garnished to satisfy a judgment, the .court
shall issue a continuing writ of garnishment to the judgment
debtor's employer which provides for the periodic payment of a
portion of the salary or wages of the judgment debtor as the
salary or wages become due until the judgment is satisfied or
until otherwise provided by court order.. A debtor's status as
an employee of the state or its agencies or political
subdivisions does not preclude a judgment creditor's right to
garnish the debtor's wages. For the purposes of this section,
the state includes the judicial branch and the legislative branch
as defined in s. 216.011. The state, for itself and for its
agencies and subdivisions, waives sovereign immunity for the
express and limited purpose necessary to carry out this
section. The court shall allow the judgment debtor's employer
to collect up to $5 against the salary or wages of the
judgment debtor to reimburse the employer for administrative
costs for the first deduction from the judgment debtor's salary
or wages and up to $2 for each deduction thereafter. The
funds collected by the state under this section must be
deposited in the Department of Financial Services Administrative
Trust Fund for purposes of carrying out this section.
4. ~ 77.04 Writ; form.—The writ shall require the garnishee to
serve an answer on the plaintiff within 20 days after service
of the .writ stating whether the garnishee is indebted to the
defendant at the time of the answer, or was indebted at the
time of service of the writ, plus up to 1 business day for the
garnishee to act expeditiously on the writ, or at any time
between such times; in what sum an~1 whai Tangible or
intangible personal property of defendant the garnishee has in
his or her possession or control at the time of his or her
answer, or had at the time of the service of the writ, or at
any time between such times; and whether the garnishee
knows of any other person. indebted to defendant, or who may., ..
have any - of = -the.- property of defendant in . his _~ or ~ her
possession or control. The writ shall state the amount named
in plaintiff's motion. If the garnishee is a business entity, an
authorized employee or agent of the entity may execute, file,
-and serve the answer on behalf of the entity.
5. § 77.041 Notice to individual defendant for c/aim of exemption from
garnishment; procedure for hearing.—
(1) Upon application_ for a writ of garnishment by a plaintiff, if
the- defendant is an individual, the clerk of the court shall
attach to the writ the following "Notice to Defendant":
NOTICE TO DEFENDANT OF RIGHT AGAINST,
GARNISHMENT OF WAGES, MONEY, AND OTHER
PROPERTY,..
CLAIM OF EXEMPTION AND REQUEST FOR HEARING...
6. ~ 77,055 Service of garnishee's answer and notice of right to
dissolve writ.—Within 5 days after service of the garnishee's
answer on the plaintiff or after the time period for the
garnishee's answer has expired, the plaintiff shall serve, by
mail, the following documents: a copy of the garnishee's
answer, and a notice advising the recipient that he or she
must move to dissolve the writ- of garnishment within 20 days
after .the date indicated on the certificate of service in the
notice if any allegation in the plaintiff's motion for writ of
garnishment is untrue. The plaintiff shall serve these documents
on the defendant at the defendant's last known address and
any -other address disclosed by the garnishee's answer and on
any other person disclosed in the garnishee's answer to have
any own~r~hip interest in the deposit, a~co~ant, ~r property
controlled by the garnishee. The plaintiff shall file in the
proceeding a certificate of such service.
7. ~ 77.061 Rep/y.—When any garnishee answers and plaintiff is
not satisfied with the answer, he or she shall serve a reply
within 20 days thereafter denying the allegations of the answer
as ~e ~ or _she desires, =0n- _f~i~lure of plaintiff- to file a rep4~r,.
the answer shall be taken as true and on proper disposition
of the assets, if any are disclosed thereby, the garnishee is
entitled to an order discharging him or her from further liability
under the -writ.
8. § 77.07- Disso/ution of w~it.—
(5) If the _ plaintiff fails to file a dismissal or motion for final
judgment within 6 months after filing the writ of garnishment,
the writ shall - automatically be dissolved and the garnishee
shall be discharged from further liability under the writ. The
plaintiff has the right to extend the writ for an additional 6
months by serving the garnishee and the defendant a notice
of extension and filing in the underlying proceeding a
certification of such service..
9. § 77.083 Judgment.—Judgment against the garnishee on the
garnishee's answer or after trial of a reply to the garnishee's
answer shall be entered for the amount of his or her liability
as disclosed by the answer or trial. Instead of scire facias,
the court may subpoena the garnishee to inquire about his or
her liability to or possession of property of the defendant. No
judgment in excess of the amount remaining unpaid on the
final judgment against the defendant or in excess of the
amount of the liability of the garnishee to the defendant,
whichever is less, shall be entered against the garnishee.
C. Service of Writ
1. A .writ of garnishment is served on the garnishee under the
regular procedures for service of process. See Fla. R. Civ.
P. 1.070; Fla. Fam. L. R. P. 12.070
D. Costs
1. $85.00 for .Clerk's fee
2. $40.00 for service by~ Orange ~ounfy= ~he~iff's Office
3. $100.00 to garnishee per § 77.28, Fla.. Stat. — Upon
issuance of any writ of garnishment, the party applying for it
shall pay $100 to the garnishee- on the garnishee's demand
at any time after the service of the writ for the payment or
part payment of his or her attorney fee which the garnishee
expends or agrees to expend in obtaining representation in
response to the writ.
4. Compensation to Garnishee per § 77.17, Fla. Stat. — The
garnishee shall be allowed the pay of a witness for the
garnishee's attendance out of the debt owed to defendant or
the property in the garnishee's possession. If there is no
debt or property in the garnishee's possession, the allowance
shall be against plaintiff.
E. Spendthrift Trusts are Subject to Garnishment
1. "Florida has a public policy favoring spendthrift provisions in
trusts and protecting a beneficiary's trust income; however it
gives way to Florida's strong public policy favoring enforcement
of alimony and support orders. See Gi/bert v. Gi/bert, 447 So.
2d 299, 302 (Fla. 2d DCA 1984) ("In light of our strong
public policy toward requiring persons to support their
dependents, we hold that spendthrift trusts can be garnished
for the collection of arrearages in alimony."); see a/so Bacardi
v. White, 463 So. 2d 218, 222 (Fla. 1985), ("We have
weighed the competing public policies and, although we
reaffirm the validity - of spendthrift trusts, we conclude that in
these types of cages the restraint of spendthrift trusts should
not be an absolute bar to the enforcement of alimony orders
or judgments.")." Berlinger v. Casselberry, 133 So. 3d 961, 966
(Fla.. 2d DCA 2013).
VL Replevin
A. ~ 78.01 Right of rep/evin.- Any person whose personal property
"~ is~+ wrongfully detained by anyother. person ~ or nffice'r::~m~y have a
writ of replevin to recover said personal property and any damages
sustained by reason of the .wrongful taking or detention as herein
provided. Notice of lis pendens to charge third persons with
knowledge of plaintiff's claim on the property may be recorded.
1. Remedy is available before or after judgment, but pre-
judgment replevin requires a bond and verified petition or
separate affidavit of the petitioner. See § 78.068, Fla. Stat.
B. Process for Obtaining Writ of Replevin
1. File Complaint for Replevin pursuant to specific
requirements of § 78.055, Fla. Stat.
2. Draft a proposed Order
.property should not be taken
defendant and delivered to
requirements of § 78.065, Fla.
with the Complaint for Replevin.
to Show Cause why claimed
from the possession of the
plaintiff pursuant to specific
Stat., and send Order to judge
3. Serve Complaint and executed Order to Show Cause on
the defendant.
4. Attend Show Cause hearing.
5. Judge will enter Order directing Clerk to Issue a Writ of
Replevin.
6. If personal property is within a locked door, fence, gate,
etc., also file a Motion for Break Order. See § 78.10, Fla.
Stat.
7. Deliver Writ of Replevin (and possibly Break Order) to
Sheriff's Office for service.
C. Costs
1. $85.00 for- Orange County Clerk filing fee
2. $90.OQ for Orange County Sheriff's Office fee
VII. Attachment
A. : §y 76.01 Right to attachment.—Any creditor may .have an_ R ._ ~ ~.
attachment at law against the goods and- chattels, ~~- lands,~~~ °anc
tenements of his or her debtor under the circumstances and in the
manner hereinafter provided.
1. Attachment may apply to real or personal property.
B. § 76.04 Grounds when debt due.—The creditor may have an
attachment on a debt actually due to the creditor by his or her
debtor, when the debtor:
(1) Will fraudulently part with the property before judgment
can be obtained against him or her..
(2) Is actually removing the property out of the state.
(3) Is about to remove the property out of the state.
(4) Resides out of the state.
(5) Is actually moving himself or herself out of the state.
(6) Is about to move himself or herself out of the state.
(7) Is absconding.
(8) is concealing himself or herself.
(9) Is secreting. the property.
(10) Is fraudulently disposing of the property.
(11) Is actually removing himself or herself beyond the limits
of the judicial circuit in which he or she resides.
(12) Is about to remove himself or herself out of the limits
of such judicial circuit.
C. Procedure
1. An attachment proceeding i~ irliiiated by a motion and
affidavit of the petitioner. See § 76.08, Fla. Stat.; Fla. R. Civ.
P. 1.100(b), 1.570(c)(1); Fla. Fam. L. R. P. 12.100, 12.570.
2. After the motion and affidavit have been filed, the court
will schedule an ex pane hearing to determine whether the
petitioner has alleged sufficient facts to support the writ. See
u ~ § 76-:08, Fla~.~ ~ Sfat.; Fla: Fam. L. R. P. 12:100. _ ... _ ,
3. The court will issue the writ only if the petitioner posts
an attachment -bond for an amount double the amount sought
on the writ, made through a surety, and payable to the
respondent. See §§ 76.1.2, 72.133, Fla. Stat.
4. Deliver writ of attachment to Sheriff's Office for service.
5. After the sheriff has executed a writ of attachment, the
respondent may reclaim the attached property by posting a
bond that ensures the petitioner's claim will be satisfied if he
or she prevails. See §§ 76.18, 76.19, Fla. Stat.
D. Costs
1. $85.00- for Orange County Clerk filing fee
2. $90.00 for Orange County Sheriff's Office fee
VIII. Sequestration
A. § 68.03, F/a. Stat, —Sequestration; proceedings prescribed.
(1) If any action is commenced in chancery against any
defendant residing out of this state and any other defendant
within the state has in his or her hands effects of, or is
otherwise indebted to, the absent defendant and the absentee
does not appear in -.the action and give security to the
satisfaction of the court for performing the judgment and on
affidavit that the absentee is out of the state, or that on inquiry
at the absentee's usual place of abode he or she cannot be
found to be served with process, the court may restrain the
defendant in this state from paying or conveying or secreting the
debts owing by him or her to, or the effects in his or her
hands of, the absentee or restrain the absentee from conveying
or secreting or removing the property in litigation, or may
sequestrate the property which may be necessary to secure
plaintiff if he or she prevails, and may order such debts to be
paid ~ and effects ~ tQ _be, , delivered to plaintiff on his or. her giving
bond with surety. for the return thereof.
(2) The court shall require the plaintiff to give bond with
surety to be approved by the clerk, to abide the future orders
made for restoring the. estate or effects to the absent defendant
on his or her appearance in the action. If the plaintiff does not
furnish the bond,- the effects shall remain under the direction. of
the court or in the hands of a receiver or otherwise for so
long a time and shall be disposed of in such manner as the
court deems fit.
B. If .the respondent is found in contempt of court because of
failure to pay support, a writ of sequestration may be issued
allowing seizure of his property. Once the property is sequestered, it
may be sold to pay for obligations that respondent has defaulted in.
See Seneca v. Seneca, 382 So. 2d 371 (Fla. 4th DCA 1980).
IX. Execution and Levy
A. Ru/e 1.550, F/a. R. Civ. P, —Executions and Fina/Process
(a) Issuance. --Executions on judgments shall issue during the
life of the judgment on the oral request of the party entitled to
it or that party's attorney without praecipe. No execution or other
final process shall issue until the judgment on which it is based
has been recorded nor within the time for serving a motion for
new trial or rehearing, and if a motion for new trial or rehearing
is timely served, until it is determined; provided execution or
other final process may be issued on special order of the court
at any .time after judgment.
(b) Stay. --The court before which an execution or other
process based on a final judgment is .returnable may stay such
execution or other process and suspend p~oeeedings thereon for
good cause on motion and notice fo all adverse parties.
B. Chapter 56, F/o~ida Statutes — Fina/Process.
1. § 56.061. Property subject to execution. — Lands and tenements,
goods and chattels, equities of redemption in real and
personal: property, and }stock in corporations,. shall be subject ,_. -.
to levy and sale under4 execution. Likewise, the interest in
personal property in possession of a vendee under a retained
title contract or conditional sale contract shall be subject to
levy and sale under execution to satisfy a judgment against
the vendee. This shall be done by making the levy on such
personal property.
C. Steps for Writ of Execution and Levy
1. Basic form for Writ. of Execution -Form 1.941, F/orida Ru/es of
Civi/ Procedure
a. Must include:
i. Caption designating action as execution.
ii. Amount of Judgment.
iii. Applicable rate of interest and date from which
interest runs.
b. Clerk must Sign and Seal Writ of Execution
2. Deliver Writ of Execution to Sheriff's office in County in
which property subject to execution/levy is located with
proper fees and deposits and levy instructions and details
to Sheriff
a. Orange County Sheriff's Department does not have a
.form for levy instructions, but several counties do,
which provide useful information:
i. Broward:
https://www.sheriff.org/about_bso/dle/civiVlevy.cfm (very
~sef~al)
ii. Palm Beach:
http://www.pbso.org/CSBJDocuments/Civil/General°/o201ns
tructions%20for%20Levy.pdf (instructions)
http://www.pbso.orq/CSB/DocumentslCivil/LEVY°Io201 NST
RUCTIONS:pdf, (form,sto be completed)
iii. Pinellas: - .~
https:/lwww, pcsoweb.com/Data/Sites/1 /media/extra-
pdf/levy information and forms updated 1-10-2013.pdf
b. It is advisable to contact the Sheriff's Office to
determine requirements and all information needed for
levy and confirm fee amount.
i. At a minimum, Sheriff should know specific
description of property (with model/serial numbers if
applicable and available), where located (address
and specific location on property), and in whose
possession/control property likely is.
D. Sheriff's Sale
1. After Sheriff levies on property, the property is sold by
Sheriff's sale with proper notice and description. See §~
56.21-56.23.
a. Notice of Sale
i. Include description and location of property to be
sold and date, time and location of sale.
ii. Publish Notice of Sale by advertisement once a
week for four (4) successive weeks prior to sale
in newspaper published in the county
iii. Mail a copy of the Notice of Sale to obligor's
attorney of record and/or obligor's last known
address.
E. Execution as Lien
1. A writ of execution operates as a lien or charge against the
obligor's property, whether real or personal. See F/agship
State Bank of Jacksonville v. Carantzas, 352 So. 2d 1259
(Fla. 1st DCA 1978) (re: personal property); B/ack v. Mi//er,
2.19 So. 2d 106 (Fla. 3d DCA 1969) (re: real property).
"" 2. The rules overning g the priority of , lier~~ apply to writs o
.~ ~ ~ execution. ..
3. The. lien attaches when the writ is delivered to the sheriff,
and the date of delivery establishes the priority of the lien.
F. Third Party Property Interests and Bonds
1. § 30.30, F/a. Stat. Writs, process; duties and /iabi/hies in levying.
a. When a writ, or instructions attached thereto, describes
specific property, and such property is claimed by a
third party other than the respondent, the sheriff may
require the petitioner to post a bond before the
property is taken into legal custody [~30.30(3JJ. The
bond will indemnify the sheriff for liability for any loss
or damage that may be sustained by anyone due to
the seizure and sale of the property [§30.30(2)]. The
amount of the bond may not exceed the reasonable
value of the property, as determined by the sheriff
[~ 30.30(3Jj.
b. As an alternative to requiring the petitioner to post a
bond when a third party claims an interest in property
subject to execution, the sheriff may petition the court
to determine whether the property is subject to levy
[§ 30.30(5.
G. Costs
1. § 30.230, F/a. Stat.—Sheriffs' fees for service of summons,
subpoenas, and e~recutions.
30.230(1)(d)—Executions:
1. Forty dollars for processing each writ of execution,
regardless of the number of persons involved.
2. Fifty dollars for each levy.
.~ a. A levy is considered.- made when any property or
~. - . - . any portion of the property listed or~ unlisted -. in .the:
instructions for levy is seized, or upon demand of
the sheriff the writ is satisfied by the defendant in
lieu of seizure. Seizure requires that the sheriff
take actual possession, if practicable, or,
alternatively, constructive possession of the property
by order of the court.
b. When the instructions are for levy upon real
property, a levy fee is required for each parcel
described in the instructions.
c. When the instructions are for levy based upon
personal property, one fee is allowed, unless the
property is seized at different locations, conditional
upon ail of the items being advertised collectively
and the sale being held at a single location.
However, if the property seized cannot be sold at
one location during the same sale as advertised,
but requires separate sales at different locations,
the sheriff is then authorized to impose a levy fee
for the property and sale at each location.
3. Forty dollars for advertisement of sale under process.
4. Forty dollars for each sale under process.
5. Forty dollars for each deed, bill of sale, or
satisfaction of judgment.
30.230(2) For .levying on property and for the seizure of
persons, the sheriff shall be allowed anticipated expenses
necessary for the execution of the process directing such
levy or seizure and for the safekeeping of properly and
persons in the custody of the sheriff. A reasonable cost
deposit to cover said fees and expenses in connection with
the requested services shall be deposited. in advance, by
.the party requesting the service, with the- officer requested
to perform the service. r~
¢ 2. orange County Sheriff's Office fees- -and ~~deposits - ; " ~"
a. Sheriff's Fees for Levying on Executions:
i. Docketing and Indexing - $40:00
ii. Prepare Advertisement - $40.00
iii. Bill of Sale/Deed - $40.00
iv. Levy Fee - $50.00
v. Satisfaction of Judgement - $40.00
vi. Holding Sale - $40.00
vii. In-House Storage Fee - $50.00
viii.- ***There will be an additional fee of $40.00 per
hour (or any portion thereofl for each Deputy
Sheriff required to standby on the scene after the
first hour. The hourly fee also applies to any
special services. The actual costs may be more
or less. Levy deposits are refundable after all
costs are paid.
b. Levy Deposits:
i. Minimum Cost Deposit for Business Equipment/
Furniture - $2,500.00
/~
ii. Minimum- Cost Deposit for any vehicle, single craft,
single/double wide mobile home, travel trailer and
each additional craft - $1,700.00
.iii. Minimum Cost Deposit for Stocks, Bonds, Jewelry,
Real Estate, Depositions - $650.00
iv. Minimum Cost Deposit for Locksmith (Break Order
is necessary) - $75.00
v. Personal Property (i.e. Household Furnishings):
Deposit varies depending on quantity of -items
_being levied.. An inventory list will need to be
_ seen by, the_. Sales Coordinator, .Corporal, or the
Sergeant of ~ the Enforceable Writs Section before
an amount is determined.
Proceedings Supplementary
A. If a Writ_ of Execution is returned unsatisfied, the judgment
creditor- may initiate - proceedings supplementary. § 55.29, F/a, Stat,
B. Process by which Courts (Judges or Magistrates) require the
judgment debtor (or third parties who are the. recipient of fraudulent
transfers from the judgment debtor) to appear in Court a`nd testify
as to the scope and nature of the judgment debtor's assets and
transfers of assets, and make determinations accordingly in light of
the unsatisfied judgment.
C. Process for Proceedings Supplementary
1. File a Motion and Affidavit stating:
a: The judgment creditor holds an unsatisfied judgment
or judgment lien obtained under chapter 55;
b. The issuing court and case number;
c. The unsatisfied amount of the judgment or
judgment lien, including accrued costs and interest
cl. That the execution is valid and outstanding, and
thereupon the judgment creditor is entitled to these
proceedings supplementary to execution;
e. Describe any property of
exempt from execution in the
any property, debt, or other
judgment debtor which may
satisfaction of the judgment.
the judgment debtor not
hands of any person or
obligation due to the
be applied toward the
2: Upon filing of the motion and affidavits, the court will
issue a Notice to Appear, which -will:
a. Direct such person to file an affidavit, as provided
in § 56.16, with the court by a date certain, which date
sh-all not be less than 7 business days from the date
6of service of the Notice to Appear, stating why the.
properly; debt; or other. obligation should not be applied
to satisfy the judgment;
b. Describe with reasonable particularity the property,
debt,.- or other obligation that may be available to satisfy
the judgment, must "provide such person with the
opportunity to present defenses, and must indicate that
discovery as provided under the. rules of civil procedure
is available and that there is a right- to a jury trial as
_provided in § 56.18;
c. Be .served as provided for in chapter 48.
3. A responding affidavit must raise any fact or defense
opposing application of the property described in the Notice to
Appear to satisfy the judgment, including- legal defenses, such
as lack of personal._ jurisdiction. Legal defenses need not be
filed under oath but must be served contemporaneously with
the affidavit.
D, The court may:
1. Order any property of the judgment debtor, not exempt
from execution, or any property, debt, or other obligation due
to the judgment debtor, in the hands of or under the control
of any person subject to the Notice to Appear, to be levied
upon and applied toward the satisfaction of the judgment debt.
2. Enter any orders, judgments, or writs required to carry
out the purpose of this section, including .those orders
necessary or proper to subject property or property rights of
any- judgment debtor to execution, and including entry of
money judgments as provided in §§ 56.16, 56.19 against any
person to whom a Notice to Appear has been directed and
over. whom the court obtained personal jurisdiction irrespective
of whether such person has retained the property, subject to
applicable principles of equity, and. in accordance with chapters
76 and 77 and all. applicable rules of civil procedure.
E. Any person failing to obey any order issued under this section
by a judge or general or special magistrate or failing to attend in
response. to a subpoena served on him or her may be -held in..: ; k,
contempt: -- w __ -. ; _. .
~~
F. Costs for proceedings supplementary shall be taxed against the
judgment debtor as well as -all other incidental costs determined to
be reasonable and just by the court including, but not limited to,
docketing_ the execution, sheriff's service fees, and court reporter's
fees. Reasonable attorney fees may be taxed against the judgment
debtor.