People often believe that upon obtaining a money award in a lawsuit that this is the end of the litigation and that they have won. Once a money award is obtained, the next step is to collect on the judgment. However, what happens when you do not get paid voluntarily on the judgment? Can you force the opposing party to pay? Can you levy on their property? If the opposing party does not have property or cash on hand, can you then garnish their wages? What is the best way for you to collect on a Florida final judgment awarding money?
A Final Judgment (“Final Judgment”) is a final award from either a jury or the judge that contains an amount to be paid. This Final Judgment should bear the language “for which let execution issue,” and contain your address. Some courts have held that the above language is not absolutely necessary, but it is always best to play it safe and request that the court include this language as it is required by statute. Note that a Final Judgment or “Order” is different from a “Final Summary Judgment,” all of which may seemingly award you a sum of money or property. Generally, a Final Summary Judgment is not legally sufficient for you to initiate a judgment lien and it does not permit you to seize property or collect monies. This is because a Final Summary Judgment does not end your case. After you are granted a Final Summary Judgment, you must then take the additional step of moving for a Final Judgment to collect the sums owed.
Sometimes a court will only issue an “Order” awarding you a sum of money or property. So long as the Order brought about a final resolution to your litigation, and contains your address with the amount to be satisfied by the losing party (judgment debtor), then you may be able to record a certified copy of the Order to effect a judgment lien. To be safe, try to be sure you obtain a Final Judgment that contains an amount to be satisfied, the language “for which let execution issue,” and your address.
Once you have a Final Judgment with the necessities noted above, you must consider the statute of limitations. Generally, the statute of limitations to collect on a Final Judgment in Florida is twenty (20) years. See § 55.081, Florida Statutes. Thus, twenty (20) years after the Final Judgment is entered, you will not be able to collect on the judgment through operation of the judgment as a lien against real property.
To take the other parties’ real property in collecting on your Final Judgment, you must first secure a “judgment lien” on real and/or personal property. A judgment lien provides you the right to take possession of real property in order to satisfy your Final Judgment.
To secure a judgment lien, you must record a certified copy your Final Judgment in the official records of the county where you believe the judgment debtor may possess property that can be used to satisfy your Final Judgment. See § 55.10¸ Florida Statutes. You can obtain a certified copy of your Final Judgment from the clerk of the court that issued the Final Judgment; there is usually a fee for obtaining a certified copy.
As the judgment debtor is not likely to volunteer real and personal property they own for you to sell You must likely make an effort to search for and find real and personal property the judgment debtor owns that could be used to satisfy your Final Judgment. It is often helpful to hire an attorney to assist you in doing this. Land and buildings are considered real property. To collect on your judgment through the Florida courts, any real property that you wish to levy on must be located in Florida. You will not be permitted to levy real property in other states unless your Final Judgment is first domesticated in that other state.
In addition, a Florida judgment debtor is entitled to exempt assets from collection including their homestead (real property); personal property of up to $1,000.00 in value; and their interest in one motor vehicle up to $1,000.00 in value. Personal property consists of movable items such as cars, boats, jewelry, stocks, etc. If your Final Judgment is against a company or corporation, the company or corporation will not be permitted to claim a homestead exemption.
Once you have obtained a properly recorded judgment lien on the judgment debtor’s real property, you may foreclose on the property to which the judgment lien has attached. You can accomplish this through judicial foreclosure of the real property subject to the lien.
If a certified copy of your Final Judgment was first recorded in a county between July 1, 1987, and June 30, 1994, then the Final Judgment shall be a lien in that county for an initial period of seven (7) years from the date of the recording. If a certified copy of your Final Judgment is first recorded on or after July 1, 1994, then the Final Judgment shall be a lien in that county for an initial period of ten (10) years from the date of the recording. See § 55.10(1)¸ Florida Statutes.
A judgment lien may be extended for an additional period of ten (10) years by re-recording a certified copy of the Final Judgment prior to the expiration of the lien. You must also simultaneously record an affidavit (sworn, signed, and notarized document) with the current address of the person who holds the lien as a result of the Final Judgment (the judgment debtor or someone the judgment debtor subsequently transferred/sold the judgment lien to). An extension shall be effective from the date the certified copy of the Final Judgment is re-recorded. See § 55.10(2), Florida Statutes.
A judgment lien on personal property is acquired by recording a judgment lien certificate in accordance with Section 55.203, Florida Statutes, with the Florida Department of State. A judgment lien certificate may only be recorded after a judgment has become final. A judgment becomes final once the time for rehearing has expired and no motion for rehearing is pending ( if no stay of the judgment or its enforcement is then in effect). See § 55.202(2)(a), Florida Statutes.
A judgment lien on personal property lapses and becomes invalid after five (5) years after the date of filing the Judgment Lien Certificate. See § 55.204(1), Florida Statutes. You may request a judgment lien on personal property be extended six (6) months prior to its expiration, or after a scheduled lapse of the lien. Your extension shall last five (5) years.You may not obtain a second extension for a judgment lien on personal property based on your original Final Judgment. See § 55.204(3), Florida Statutes. So, even though the statute of limitations for a judgment lienist twenty (20) years, you might only have two (2) periods of five (5) years in which you can execute upon a valid personal property judgment lien. A judgment creditor may file only one (1) effective judgment lien based on a particular judgment or order. See § 55.202(2)(d), Florida Statutes. You are cautioned to record all Judgment Lien Certificates correctly.
Priority among competing judgment liens is determined in the order of recording date and time. See § 55.202(3). Florida Statutes. In some cases, several judgment creditors may be seeking payment from a single judgment debtor and there may be several judgment liens filed in a single county against a single judgment debtor. In that instance, the judgment creditor who first recorded his judgment lien shall have priority over all other liens. Thus, that creditor’s lien shall be satisfied before any other judgment liens are satisfied. This is why it is in your best interest to record a judgment lien as soon as possible after receiving a Final Judgment. The extension of a lien, on personal or real property, will not remove you from the line of competing judgment creditors and you will hold your place in the order the judgments liens were originally recorded.
If your original or extended judgment lien lapses (is unsatisfied for its initial or extended term) prior to being extended, then the lien shall cease to exist. Upon the lapsing of a judgment lien, you must re-record a certified copy of your Final Judgment with an affidavit noting the judgment creditor’s current address. However, if you are outside of the twenty (20) year limitations period, then you will no longer be able to collect on your Final Judgment. If you are able to re-record a certified copy of the Final Judgment after a lapse, then you have essentially created a new judgment lien. Upon doing so, you will lose your place in line if there were multiple judgment creditors who recorded liens against the judgment debtor. In other words, this new lien will only have priority over liens filed after it, and even if you are able to find property to satisfy your judgment lien, said property may be used to satisfy someone else’s judgment lien who filed before you.
After locating real or personal property to be levied and recording a judgment lien in the county in which that property lies, you will need to obtain a writ of execution. You must request the writ of execution from the clerk of court that issued your Final Judgment by motion. Once you have obtained the writ of execution, you must give it to the sheriff of the county where the property you wish to levy is located along with written instructions called Instructions for Levy. The Instructions for Levy should describe the property to be seized and tell the sheriff where the property is located.
The sheriff will then seize the property identified after complying with the Sheriff’s requirements and it will be sold to satisfy recorded judgment liens (giving priority to the judgment lien first recorded and then to subsequent liens based on the date they were recorded). You must identify anyone who has a valid judgment lien and provide that person with a notice that property has been located and that a sale will be conducted. The sale must be advertised. This can be accomplished by putting an ad in a local newspaper or periodical of general circulation.
The sheriff will then sell the property at a public auction. Anyone is permitted to bid on the property and the highest bidder shall pay the price to the sheriff and become the owner of the property. From the proceeds of the sale, the sheriff will first pay the sheriff’s costs incurred in auctioning the property; the sheriff will then pay you $500.00 for your costs in initiating the sale; and then the remaining sums will be distributed to the judgment creditors depending on lien priority. If your judgment lien is a subordinate lien (not first in line) and the sheriff runs out of money before getting to you, you will get nothing from the sale of the property and must find more property to satisfy your Final Judgment.
If you believe the judgment debtor may have significant cash assets through income or in bank accounts, then you may wish to pursue an action in garnishment to collect on your Final Judgment. Garnishment actions are covered under Chapter 77, Florida Statutes. To garnish one’s wages, you must first obtain a writ of garnishment from the court that issued your Final Judgment. In order to obtain a writ of garnishment, your or an attorney must file a motion stating the amount of the judgment and requesting garnishment of the defendant’s salary or accounts. See § 77.03, Florida Statutes.
Each and every defendant who may have a garnishment claim against them is entitled to fair notice and a hearing, by jury if requested, prior to a writ of garnishment being issued. In some circumstances, certain individuals cannot have their wages or accounts garnished. Exemptions from garnishment include, but are not limited to the following:
See § 77.041, Florida Statutes.
After a hearing on the motion for issuance of a writ of garnishment, if one is requested, and after considering all the necessary and relevant factors and motions filed by a plaintiff and defendant as contemplated by Chapter 77, Florida Statutes, the court will determine whether to issue a writ of garnishment to the judgment debtor’s employer or account manager. If issued, a writ of garnishment will provide for the periodic payment of a portion of the salary or wages of the judgment debtor as they become due, until the Final Judgment is satisfied or until otherwise further modified by the court. See § 77.0305, Florida Statutes. For the most part, a judgment creditor can only take up to 25% of your wages and only if your weekly wages are more than thirty (30) times the federal minimum wage. However, for a few types of debts, creditors can take more.
Other statutory remedies for collections exist. We can review these with you if applicable as explanation is longer than this blog permits.
Should you have any questions with regards to post-judgment collection actions or actions involving the garnishment of wages or accounts, it is always best to consult with an attorney. The attorneys here at Sessums Law Group, P.A. will always represent your best interest and provide you with the best advice on how to resolve your legal issues. We can help you determine what property may exist, if any, if you wish to pursue a judgment lien and we can assist in both obtaining garnishments and defending against them. Should you have any questions and wish to sit down and speak with one of our attorneys, please give us a call.
