Is this fraudulent transfer?

[adjusterjack]

I don't know why the need to discuss a wage earner's exemption. Nothing you've reported that I recall suggests that the debtor is claiming it. But for whatever and for numerous obvious reasons - given the circumstances you've related - FS 222.1 SIMPLY DOES NOT FIT!

Maybe you overlooked this.

The debtor is the only person in his home who has job (he works as an employee for a big company). His wife makes around 3K per year by doing some odd jobs. They have no children. His salary is directly deposited into a tenants by entirety joint bank account with his wife. These facts are true for the last 5-6 years at least. He transferred that 9K from that tenants by entirety joint bank account to his wife’s personal bank account. Debtor stated that his salary is protected for up to 6 months due to his head of family status

It certainly opens a discussion about what the debtor is likely to do if the OP files for wage garnishment.

Right now, the debtor saying his wages are exempt is as meaningless as saying "I'm judgment proof." Might be true but it's irrelevant until an attempt is made to enforce the judgment.

Also, PLEASE don't be misled to believe that any post-judgment efforts of yours - past or future - will constitute a waiver or somehow exhaust your rights to continually assert those remedies. No one is counting - (as someone has erroneously proposed).

As long as your judgment remains active and unsatisfied (and the debtor doesn't attempt to rinse the obligation in bankruptcy) you are at liberty to accordingly hound this deadbeat 'til the cows come home.

That's right. The debtor's financial circumstances can change. He could end up divorced or widowed and then his wages and bank accounts will become fair game.

 

[stephan66]

So many thanks Litigator22 and adjusterjack. Is it safe to assume/conclude the following?
Unless the debtor’s wife dies, or they get divorced, or she get another job which makes the debtor no longer head of family, or the debtor does not respond to my wage garnishment proceedings, or the debtor stops the current job and starts his own job, or some other thing which makes hium no longer head of family) then, due to 222.11, it is virtually impossible for me to get the salary of the debtor which is deposited directly into a tenants by entirety account with his wife. Further, debtor can transfer that money from that tenants by entirety account to any other person or entity of his choice without violating any provisions of 56.29 (Proceedings supplementary) or chapter 726 (fraudulent transfer).

 

[adjusterjack]

So many thanks Litigator22 and adjusterjack. Is it safe to assume/conclude the following?
Unless the debtor’s wife dies, or they get divorced, or she get another job which makes the debtor no longer head of family, or the debtor does not respond to my wage garnishment proceedings, or the debtor stops the current job and starts his own job, or some other thing which makes hium no longer head of family) then, due to 222.11, it is virtually impossible for me to get the salary of the debtor which is deposited directly into a tenants by entirety account with his wife.

Yes, that is a safe conclusion.

Further, debtor can transfer that money from that tenants by entirety account to any other person or entity of his choice without violating any provisions of 56.29 (Proceedings supplementary) or chapter 726 (fraudulent transfer).

I wouldn't want to commit to that. Too many variables. He, and his wife, can use the money for regular living expenses. He can even use it to buy a single big-ticket item.

But what if he gives money to another creditor, one who perhaps hasn't sued him, or one with whom he wants to continue a cordial relationship?

Could the court reconsider its decision about fraudulent transfer?

I don't know the answer to that question.

 

[stephan66]

Thanks a lot!


Once, under 77.041, a ”Notice to individual defendant for claim of exemption from garnishment” http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0077/Sections/0077.041.html is sent to the debtor but, for some reason, the debtor did not file a claim of exemption (and did not respond to the debtor’s writ of garnishment in a timely manner, i.e., 20 days or so, as specified) then the court will issue a continuing writ of garnishment to the judgment debtor's employer.



Merriman Investments, LLC v. Ujowundu, 123 So. 3d 1191 (Fla. Dist. Ct. App. 2013) https://casetext.com/case/merriman-invs#p1193 says as follows:

“Once [continuing writ of garnishment to the judgment debtor's employer is ] issued, the trial court may consider a request to dissolve the writ under certain circumstances. Depending on the circumstance, the request to dissolve may be made in either of two ways: (1) on motion of the debtor challenging the truth of the allegations in the creditor's petition for the writ, see§ 77.07, Fla. Stat. (2001); or (2) on an affidavit of a third party claiming the garnished property belongs to the third party and not the debtor.”



If the debtor, a few months after the continuing writ of garnishment is issued by the court, files a motion claiming that he is head of family under 222.11  http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0200-0299/0222/Sections/0222.11.html (therefore his wages should not be garnished anymore) then, based on “(1) on motion of the debtor challenging the truth of the allegations in the creditor's petition for the writ, see§ 77.07, Fla. Stat. (2001)” (of the above paragraph from the case law), can the trial court consider that motion to dissolve the existing continuous writ of garnishment OR the existing continuous writ of garnishment is good for ever (i.e., until the debt is fully paid or until the debtor is employed over there)?

 

[Litigator22]

Thanks a lot!


Once, under 77.041, a ”Notice to individual defendant for claim of exemption from garnishment” http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0077/Sections/0077.041.html is sent to the debtor but, for some reason, the debtor did not file a claim of exemption (and did not respond to the debtor’s writ of garnishment in a timely manner, i.e., 20 days or so, as specified) then the court will issue a continuing writ of garnishment to the judgment debtor's employer.



Merriman Investments, LLC v. Ujowundu, 123 So. 3d 1191 (Fla. Dist. Ct. App. 2013) https://casetext.com/case/merriman-invs#p1193 says as follows:

“Once [continuing writ of garnishment to the judgment debtor's employer is ] issued, the trial court may consider a request to dissolve the writ under certain circumstances. Depending on the circumstance, the request to dissolve may be made in either of two ways: (1) on motion of the debtor challenging the truth of the allegations in the creditor's petition for the writ, see§ 77.07, Fla. Stat. (2001); or (2) on an affidavit of a third party claiming the garnished property belongs to the third party and not the debtor.”



If the debtor, a few months after the continuing writ of garnishment is issued by the court, files a motion claiming that he is head of family under 222.11  http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0200-0299/0222/Sections/0222.11.html (therefore his wages should not be garnished anymore) then, based on “(1) on motion of the debtor challenging the truth of the allegations in the creditor's petition for the writ, see§ 77.07, Fla. Stat. (2001)” (of the above paragraph from the case law), can the trial court consider that motion to dissolve the existing continuous writ of garnishment OR the existing continuous writ of garnishment is good for ever (i.e., until the debt is fully paid or until the debtor is employed over there)?

Your cup does indeed runneth over! However, the supply exceeds the demand.

 

[adjusterjack]

There's no doubt in my mind that your debtor will immediately file for head of the family as soon as you file for wage garnishment and the garnishment will be cancelled.

He's already got you skunked on the $9000.

You are naive to think that there is the snowball's chance in hell that you'll ever collect a dime from him. He seems way to smart to ever make even the smallest mistake to give you an opening.

You haven't answered my earlier question.

How much is your judgment for and how did this guy get into you for that amount in the first place?

 

[stephan66]

Great, thank you!

This guy has odd habit of visiting other countries on long vacation and has no attorney. I wish to file during that time, if the answer to my above question is "the existing continuous writ of garnishment is good for ever". Anyway, if you could provide your thoughts on my above query in #19, it would be helpful.
The judgment is for 34K and he borrowed money from me and never paid (this is a summary)

 

[adjusterjack]

This guy has odd habit of visiting other countries on long vacation and has no attorney. I wish to file during that time,

Oh, so you want to be sneaky and catch him with his pants down.

Not likely to work.

Read the wage garnishment procedure in Chapter 77 of Civil Practice and Procedure and you'll see why.

Florida Statutes Title VI, Chapter 77 - Garnishment from Florida Civil Practice and Procedure Statutes :: 2022 Florida Statutes :: US Codes and Statutes :: US Law :: Justia

The employer has 22 days to file an answer. The employee MUST be served notice of the exemption and given the opportunity of a hearing and has 20 days to respond.

If he is still employed during those long vacations you can bet that the employer will be in touch with him about the wage garnishment. Even if that doesn't happen, at best you might hit one paycheck before the debtor returns and gets the garnishment quashed.

And if he's no longer employed there, there will (of course) be nothing to garnish.

The judgment is for 34K and he borrowed money from me and never paid (this is a summary)

Ouch.

My condolences.

 

[stephan66]

Thank you for your continued guidance, and for the condolences. To make sure I understood it correctly:

Even after the continuing writ of garnishment is issued by the court, later, the debtor can file a motion to quash it if he has reasons (e.g., if he is head of family) and get the continuing writ of garnishment quashed.

Please verify this.

 

[adjusterjack]

Even after the continuing writ of garnishment is issued by the court, later, the debtor can file a motion to quash it if he has reasons (e.g., if he is head of family) and get the continuing writ of garnishment quashed.

Yes.

 

[stephan66]

So many thanks.

Fla. R. Civ. P. 1.540(b) RELIEF FROM JUDGMENT, DECREES, OR ORDERS

https://casetext.com/rule/florida-court-rules/florida-rules-of-civil-procedure/rules/rule-1540-relief-from-judgment-decrees-or-orders

says:



On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing;

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) that the judgment, decree, or order is void; or

(5) that the judgment, decree, or order has been satisfied, released, or discharged, or a prior judgment, decree, or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment, decree, or order should have prospective application.



Does Fla. R. Civ. P. 1.540(b) permits the debtor to file a motion to request the court for relief from the judgment (that is, garnishment judgment in the current scenario)? If so, under which reason above?


I also found a caw law in support of your previous response: Maryl v. Hernandez, 254 So. 2d 47 (Fla. Dist. Ct. App. 1971)
"allowing debtor to make exemption claim after the final judgment of garnishment was entered and noting "[t]he section providing for exemption for the head of a family of his wages from garnishment expresses a public policy of the State of Florida and must be liberally construed in order to effect the purpose of the statute which is to preserve to the unfortunate debtor and his family a means of living without becoming charges upon the public."

 

[adjusterjack]

Does Fla. R. Civ. P. 1.540(b) permits the debtor to file a motion to request the court for relief from the judgment (that is, garnishment judgment in the current scenario)? If so, under which reason above?

That's easy. You want to sneak this wage garnishment in under the radar while the debtor is out of the country.

That's clearly Number 3 - fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

I also found a caw law in support of your previous response: Maryl v. Hernandez, 254 So. 2d 47 (Fla. Dist. Ct. App. 1971)
"allowing debtor to make exemption claim after the final judgment of garnishment was entered and noting "[t]he section providing for exemption for the head of a family of his wages from garnishment expresses a public policy of the State of Florida and must be liberally construed in order to effect the purpose of the statute which is to preserve to the unfortunate debtor and his family a means of living without becoming charges upon the public."

Which pretty much supports what I have been saying all along.

Florida seems to be a haven for deadbeats.

 

[stephan66]

Many thanks!!!