How can I collect my judgment?

[ginsburg23]

What is the name of your state? Florida

I won a case in Florida. The judgment debtor has been living in Florida and works for a company in Florida. His wife stays at home and has no income, except for some gifts she regularly receives from her friends which she deposits in her own bank account. Also she and her husband (debtor) jointly receive monthly rent (few hundred dollars) from a land in Florida which is owned jointly (tenant by entirety) by both of them for many years and they deposit that rent in a separate tenant by entirety bank account in Florida.



I read a case at https://casetext.com/case/passalino-v-protective-group-sec which declares: “The proceeds from the sale or rental of tenancy by the entireties property are also held as a tenancy by the entireties and are owned in total by both the husband and the wife”

and another case https://www.leagle.com/decision/2001825780so2d451819 which declares:

“when property is held as a tenancy by the entireties, only the creditors of both the husband and wife, jointly, may attach the tenancy by the entireties property; the property is not divisible on behalf of one spouse alone, and therefore it cannot be reached to satisfy the obligation of only one spouse.”



The debtor and his wife have been living in a home which is also jointly owned by both of them (joint tenants with right of survivorship). I read Article X, Section 4 of Florida constitution http://www.leg.state.fl.us/statutes/index.cfm?submenu=3#A10S04 which declares: “There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person: (1) a homestead…”



Debtor collects his paycheck from his employer and, according to him, he spends it for his “living expenses” but there are no receipts or any trace on where that money is going. I understood that Florida Statute 222.11 http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0200-0299/0222/Sections/0222.11.html provides protection for the debtor from salary garnishment because debtor did not give me consent, at any time, to garnish his salary.



The debtor and his wife have no other income. Can I do anything to collect the judgment? I am in a real frustration with this debtor.

 

[doucar]

You can file a lien on the real property and hope to collect when it sells.

 

[Zigner]

You can file a lien on the real property and hope to collect when it sells.

Careful, that can only be done under specific circumstances. The OP may find himself in hot water if he does it wrong.

 

[Ohiogal]

Lovely... Florida.
Head of family status and money transfer | Forum.FreeAdvice.com Post three:

Read:
https://forum.freeadvice.com/threads/concerned-of-tbe-account-i-had-in-the-past.661377/
https://forum.freeadvice.com/threads/is-it-fraudulent-transfer.661306/
https://forum.freeadvice.com/threads/debtor-changed-joint-bank-account.661188/


Now this one. IN two or three weeks, I am sure we will get another thread from FL asking about head of household and tenants by the entirety and judgment debtor.

Look at the way things are phrased ... these are all the same person... writing from different perspectives.

 

[ginsburg23]

Thanks Zigner and and doucar. I will be careful. If there is a lien, I believe still he can file a motion and the court will remove that lien due to that properties' tenant by entirety protection; feel free to correct me.

Thanks Ohiogal and I am not surprised as this forum is very popular forum, although I am not the person who posted the previous ones you cited.

 

[quincy]

You appear to have answered your own question in your original post. Real property held by spouses as tenants by entirety is exempt from a judgment-creditor’s collection when the judgment is against just one spouse.

An exception would be if there was a fraudulent transfer, fraudulent transfers of which were discussed in the threads linked to by Ohiogal.

The posters of those threads are, conveniently for you, located in Florida and the posters, also conveniently, have the same/similar problem collecting on their judgment.

Judgments are good for a long time and can be renewed. If you believe your debtor may acquire assets, in his name alone, at a later date (perhaps because he gets divorced), you can try to collect on it at that time.

The other threads should pretty much cover any other Florida judgment-collection questions you have.

 

[Taxing Matters]

You can file a lien on the real property and hope to collect when it sells.

Nope. The property is held as tenants by the entireties, with the result that a lien against just one spouse will not attach to the real estate.

 

[quincy]

Nope. The property is held as tenants by the entireties, with the result that a lien against just one spouse will not attach to the real estate.

Now we wait for the post about fraudulent transfers.

 

[ginsburg23]

Greatly thankful to quincy and Taxing Matters. There was no fraudulent transfers as the debtor and his spouse acquired the real properties many years prior to initiating my lawsuit. He acted very smart.

Whether the debtor is obligated to explain specific details about where and when he spent his salary, or he can say that he spends it for his living expenses (saying, he does not remember where or when he spent, and has no receipts for anything)?

I believe he is giving that cash (from his paycheck) to his relatives and friends, and they are giving cash gifts to his wife thereby making his money unavailable for satisfying the judgment. Any guidance on how to handle this?

 

[quincy]

Greatly thankful to quincy and Taxing Matters. There was no fraudulent transfers as the debtor and his spouse acquired the real properties many years prior to initiating my lawsuit. He acted very smart.

Whether the debtor is obligated to explain specific details about where and when he spent his salary, or he can say that he spends it for his living expenses (saying, he does not remember where or when he spent, and has no receipts for anything)?

I believe he is giving that cash (from his paycheck) to his relatives and friends, and they are giving cash gifts to his wife thereby making his money unavailable for satisfying the judgment. Any guidance on how to handle this?

Guidance? Not really. The debtor doesn’t have to explain to you how he spends his money.

If you suspect the debtor is hiding assets otherwise attachable or garnishable, you could hire a private detective to investigate his spending habits. I am not sure this would be worth the cost, however.

Unfortunately, it is a reality that many judgments go uncollected, not necessarily because the debtor is hiding assets but because the debtor has no assets to hide ... which is how the debtor became a debtor in the first place.

 

[ginsburg23]

Lot of thanks. Unfortunately I cannot hire a private detective as I spent all my money on this case, and also his friends and relatives will say, in a court or anywhere, what he suggests them to say.

Apart from simply wait and see (and get his deposition/debtor exam once in a while), can I do anything else?

 

[quincy]

Lot of thanks. Unfortunately I cannot hire a private detective as I spent all my money on this case, and also his friends and relatives will say, in a court or anywhere, what he suggests them to say.

Apart from simply wait and see (and get his deposition/debtor exam once in a while), can I do anything else?

I am afraid not. At least, nothing I can think of offhand - other than selling your judgment to a collection agency.

 

[ginsburg23]

Thank U.

 

[doucar]

Having practiced in Florida, I am aware of tenant by the entirety protection. However according to the OP the home is not tenants by the entireties but :
The debtor and his wife have been living in a home which is also jointly owned by both of them (joint tenants with right of survivorship)

 

[quincy]

Having practiced in Florida, I am aware of tenant by the entirety protection. However according to the OP the home is not tenants by the entireties but :
The debtor and his wife have been living in a home which is also jointly owned by both of them (joint tenants with right of survivorship)

I missed that the house the debtor and wife live in is owned as joint tenants with right of survivorship. On a re-read, it is only the rental house that is owned as tenants by entirety. That does make a difference.

Depending on the source of the debt, ginsburg23 won’t be able to force a sale of the house to satisfy the judgment because of the Florida’s Homestead law (right?) but the house asset might not be totally untouchable by a judgment-creditor.

I didn’t know you practiced in Florida, doucar. Good to know.