How can I collect my judgment?

[Taxing Matters]

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)

Right, I missed that they said the home was owned joint tenants with a right of survivorship (JTWROS).

However, it may still turn out that it's actually held TBE. First, in general it's difficult for a married couple to own property between them as joint tenants with a right of survivorship, at least if the property was acquired after the marriage. That's because the elements needed to create a JTWROS ownership and tenancy by the entirety (TBE) ownership are the same but for one difference: for the TBE ownership the owners had to be married at the time the property was acquired. So if they were married at the time they aquired it and met all the requirements for JTWROS then they also met all the requirement for TBE ownership, too. Moreover, the Florida Supreme Court provides a presumption that jointly owned property acquired by a married couple is owned as TBE. "In the case of ownership of real property by husband and wife, the ownership in the name of both spouses vests title in them as tenants by the entireties. See Losey v. Losey, 221 So.2d 417, 418 (Fla.1969).9 Thus, '[a] conveyance to spouses as husband and wife creates an estate by the entirety in the absence of express language showing a contrary intent.'” Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 54 (Fla. 2001). So if they got the property after they married, they might well be able to assert that the home is indeed held TBE. Just something for the OP to be aware of.

And, of course, there is the problem that homesteads are protected in Florida anyway, regardless of value.

 

[quincy]

It is Florida’s homestead law that would be the hardest nut to crack - but it would not necessarily prevent a lien on the property.

 

[ginsburg23]

They bought their home after their marriage and it is titled as follows:

“John, a married man, and Nancy, a married woman, husband and wife as joint tenants with right of survivorship,” The names of the debtor and his wife are altered here.

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.."

does it mean that I could not put a lien on their homestead (i.e., if I put, the debtor can get it removed by the court, citing Florida constitution?)

 

[quincy]

They bought their home after their marriage and it is titled as follows:

“John, a married man, and Nancy, a married woman, husband and wife as joint tenants with right of survivorship,” The names of the debtor and his wife are altered here.

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.."

does it mean that I could not put a lien on their homestead (i.e., if I put, the debtor can get it removed by the court, citing Florida constitution?)

What led to the judgment? How was the debt generated?

 

[ginsburg23]

A huge dead tree in his property fell on my house (I have no insurance for my house). Despite my repeated requests to remove that dead tree, prior to its fall, went to deaf years.

Also I read more information 222.01(2) which may not be good news to me:
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0200-0299/0222/0222.html

 

[Just Blue]

Hopefully you have since obtained homeowners insurance.

 

[quincy]

A huge dead tree in his property fell on my house (I have no insurance for my house). Despite my repeated requests to remove that dead tree, prior to its fall, went to deaf years.

Also I read more information 222.01(2) which may not be good news to me:
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0200-0299/0222/0222.html

There is very little “good news” for you, unfortunately.

 

[stealth2]

Deaf years are rather annoying.

 

[quincy]

Deaf years are rather annoying.

The neighbor with the dead tree lost his court hearing.

 

[ginsburg23]

Sorry, it is “ears” not “years”. Thanks for the nice comments form quincy, stealth2, and Just Blue. I further studied the valuable comments of Taxing Matters. Although the home of the debtor is titled as JTWROS, I too believe it is TBE (also), due to the following reason:

In Beal Bank v. Almand, 780 So. 2d 45, 54 (Fla. 2001) the court declared as follows about real property:

“Despite the fact that this Court has recognized the tenancy by the entireties form of ownership in both real property and personal property, this Court has adopted different standards of proof for each. Where real property is acquired specifically in the name of a husband and wife, it is considered to be a "rule of construction that a tenancy by the entireties is created, although fraud may be proven."

"Thus, '[a] conveyance to spouses as husband and wife creates an estate by the entirety in the absence of express language showing a contrary intent.' "

However, the home of the debtor (which he jointly owns with his wife) is titled as JTWROS but the title has no express language stating that it should NOT be held as TBE. Therefore I believe that the debtor’s home is qualified as TBE as well.

In the same case (Beal Bank v. Almand), the court declared: “Unlike real property titled in the name of both spouses that is presumptively considered to be a tenancy by the entireties as long as the other unities are established,..” The unities are already established in case of the debtor and his wife for their home. The unities (as stated in the same case) are: “(1) unity of possession (joint ownership and control); (2) unity of interest (the interests in the account must be identical); (3) unity of title (the interests must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; and (6) unity of marriage (the parties must be married at the time the property became titled in their joint names)”


I request your comments on whether the debtor's home is qualified as TBE despite the fact that it is labelled as JTWROS. I am not asking this in any way to disrespect the opinion of Taxing Matters but to make sure it is really TBE, because there are some differences on how the debtor can ultimately dispose the homestead https://scholar.google.com/scholar_case?case=9832587140297478894&hl=en&as_sdt=6&as_vis=1&oi=scholarr

 

[Taxing Matters]

I request your comments on whether the debtor's home is qualified as TBE despite the fact that it is labelled as JTWROS.

Your best opinion on that won't come from anyone here. It will come from a Florida real estate attorney. The answer depends on a thorough knowledge of the Florida case law on the subject. I've not studied that in great detail and I doubt anyone else here has either. My comments are based in part on experience with TBE ownership in other states. There are some aspects of TBE law that are pretty common among all the states that use that form of ownership. But there are differences between the states, too. Property law is a particularly quirky area of law because it is so old and states have not really sought uniformity in that area of law the same way they have in others.

Note that the home can be both held TBE and protected by the homestead exemption. In that case the wise debtor would seek the protection offered by both when selling the home.

 

[ginsburg23]

Thanks so much Taxing Matters.

I would like to share some additional information. In Southern Walls, Inc. v. Stilwell Corp., 810 So.2d 566, 570 (Fla. 5th DCA 2002) the court stated:


“In ascertaining the ownership interest (the nature of the title and the estate) that is necessary to claim the homestead exemption, we find guidance in decisions of rather ancient vintage which adopted the general rule that the individual claiming homestead exemption need not hold fee simple title to the property.”

“Thus ‘a one-half interest, the right of possession, or any beneficial interest in land gave the claimant a right to exempt it as his homestead’ and ‘t was not essential that he hold the legal title to the land.’”

Based on the above law, does it mean that, hypothetically, the debtor and his wife change the ownership title of their JTWROS home to TBE then both of them still live in that home (thereby it is again their homestead) to get the additional protection offered by TBE on top of the existing "homestead" exemption? It seems, in that case, I cannot file fraudulent transfer claims also on the debtor for converting the home to TBE homestead because the debtor can argue that the home was his homestead when it was JTWORS, and it is again his homestead after the TBE conversion (see the above law I just cited), therefore he did not give/take anything for free to/from his wife. If you have any thoughts, please share (you already suggested “Your best opinion on that won't come from anyone here. It will come from a Florida real estate attorney” but I wish to see if you can comment, as your comments are very insightful on this matter. I am sorry if I crossed my limit).

 

[adjusterjack]

A huge dead tree in his property fell on my house

How did you manage to get a judgment against him for that? Was if by default? I can't imagine his liability insurance wouldn't have paid if you proved he was negligent in failing to remove the hazard after being notified that it existed.

I have no insurance for my house

DUH!

 

[Taxing Matters]

Based on the above law, does it mean that, hypothetically, the debtor and his wife change the ownership title of their JTWROS home to TBE then both of them still live in that home (thereby it is again their homestead) to get the additional protection offered by TBE on top of the existing "homestead" exemption? It seems, in that case, I cannot file fraudulent transfer claims also on the debtor for converting the home to TBE homestead because the debtor can argue that the home was his homestead when it was JTWORS, and it is again his homestead after the TBE conversion (see the above law I just cited), therefore he did not give/take anything for free to/from his wife.

First, if the home qualifies as TBE property it would be TBE property from the time they purchased it. So I'm not seeing where you are getting the idea of the home converting from JTWROS to TBE property.

As I said, the home can be both a homestead and owned TBE at the same time. If the property was exempt from attachment as a homestead from the get go and somehow was owned JTWROS at the time, and then later converted to TBE property after your judgment, then I agree there is no fraudulent transfer because judgment debtors interest in the home was exempt as a homestead at the time of the conversion and thus no asset that you has a creditor could have attached has been transferred. Further, the home remains a homestead after the conversion, too, so trying to get the transfer set aside would gain you nothing.

 

[ginsburg23]

adjusterjack, it was not by default, I lost my car and several other things due to that tree and also my home insurance is very narrow (I did not provide the specifics here to do not alter the attention of the matter, I am sorry for that). His insurance expired.

Taxing Matters, are perfectly correct, and many thanks, as I just found a new case law and is attached here:

Volpitta v. Fields 369 So. 2d 367 (Fla. Dist. Ct. App. 1979) https://casetext.com/case/volpitta-v-fields

the court stated as follows:



Although money judgments are statutory liens upon the real estate of the defendant in the county where such judgments are recorded, no judgment can be a lien upon homestead property if the property acquired homestead exempted status prior to the existence of the judgment lien. Milton v. Milton, 63 Fla. 533, 58 So. 718 (1912). A judgment creditor therefore acquires no rights in homestead property and the judgment debtor can only commit fraud on his judgment creditors by disposing of such property as the creditor would have a legal right to look to for satisfaction of his claim. Sneed v. Davis, 135 Fla. 271, 184 So. 865 (1938). Quoting from 27 C.J. 438 the court in Sneed stated:



"[H]ence a sale, gift or other disposition of property which is by law absolutely exempt from the payment of the owner's debts cannot be impeached by creditors as in fraud of their rights. Creditors have no right to complain of dealings with property which the law does not allow them to apply on their claims, even though such dealings are with a purpose to hinder, delay or defraud them." At 868.



Thus, if the property is exempt as homestead property, as it was in the instant case, the owner thereof can transfer title to the property without committing a fraud upon his judgment creditor irrespective of his motivation. In the case at bar it was unnecessary for appellant to convey the property in order to avoid the availability of his homestead to answer the claims of his creditors. There being no fraud in the conveyance there can thus be no conspiracy to commit fraud. The judgment therefore must be reversed.



Therefore, the debtor can change the title of the JTWROS home (which is his homestead) to his wife (or a friend), and his wife (or friend) can sell it or do whatever they wish and I cannot do anything. It seems, for me, better to focus my time on other things.

Many thanks Taxing Matters.