FL

Enigma · 08-29-2006, 10:07 PM

FL allows issuance of writ of garnishment before judgment:

77.031 Issuance of writ before judgment.--Before judgment has been obtained by the plaintiff against the defendant:

(1) A writ of garnishment shall be issued by the court or by the clerk on order of the court.

(2) To obtain issuance of the writ, the plaintiff, or the plaintiff's agent or attorney, shall file in the court where the action is pending a verified motion or affidavit alleging by specific facts the nature of the cause of action; the amount of the debt and that the debt for which the plaintiff sues is just, due, and unpaid; that the garnishment is not sued out to injure either the defendant or the garnishee; and that the plaintiff believes that the defendant will not have in his or her possession, after execution is issued, tangible or intangible property in this state and in the county in which the action is pending on which a levy can be made sufficient to satisfy the plaintiff's claim. The writ of garnishment shall set forth a notice to the defendant of the right to an immediate hearing for dissolution of such writ pursuant to s. 77.07. Upon issuance of the writ of garnishment, the clerk of the court shall provide by mail a copy of the writ to the defendant.

(3) Except when the plaintiff has had an attachment writ issued, no writ of garnishment before judgment shall issue until the plaintiff, or the plaintiff's agent or attorney, gives a bond with surety to be approved by the clerk payable to the defendant in at least double the amount of the debt demanded, conditioned to pay all costs, damages, and attorney's fees that the defendant sustains in consequence of the plaintiff's improperly suing out the writ of garnishment. A garnishment bond is not void or voidable because of an informality in it, nor shall the obligors be discharged because of the informality, even though the garnishment is dissolved because of the informality.

xYBDx · 08-30-2006, 12:43 AM

The whole concept of a punishment before being found guilty or due process being complete is utterly unamerican.

Qtip · 08-30-2006, 11:07 AM

Interesting, is that only in florida?

rubyruby27 · 08-30-2006, 11:09 AM

Thats Florida for you.

centex · 08-30-2006, 11:25 AM

Quote:

Originally Posted by Qtip

Interesting, is that only in florida?

There are similar variants in other states...I do not know if ALL states have such a procedure though.

And let's put things in perspective...this is not unique to the civil realm. Remember that forfeiture of assets in suspected drug cases does not require a conviction on the claimed conduct.

jlynn · 08-30-2006, 12:17 PM

Isn't Minnesota the state that has the worst laws when it comes to guilty before proven innocent in a debt case?

Its one of the "M" states...

hannah · 08-30-2006, 12:28 PM

In reading the statute, it is my impression that the plaintiff who files such a writ has a lot to overcome in filing one. One must have the parole evidence (just, due, and unpaid) to win the suit. One must "believe that the defendant will not have in his or her possession, after execution is issued, tangible or intangible property in this state and in the county in which the action is pending on which a levy can be made sufficient to satisfy the plaintiff's claim". So the plaintiff must have some type of evidence of the defendent's intent to defraud?

Then there's the notice and the right of the defendent to "an immediate hearing for dissolution of such writ" (How immediate is immediate?) and the posting of the surety bond by the plaintiff.

Enigma, do you know of any instances where this has actually been utilized? Might make good reading...

fraudfighter · 09-03-2006, 01:13 AM

Quote:

Originally Posted by Enigma

FL allows issuance of writ of garnishment before judgment:

77.031 Issuance of writ before judgment.--Before judgment has been obtained by the plaintiff against the defendant:

(1) A writ of garnishment shall be issued by the court or by the clerk on order of the court.

(2) To obtain issuance of the writ, the plaintiff, or the plaintiff's agent or attorney, shall file in the court where the action is pending a verified motion or affidavit alleging by specific facts the nature of the cause of action; the amount of the debt and that the debt for which the plaintiff sues is just, due, and unpaid; that the garnishment is not sued out to injure either the defendant or the garnishee; and that the plaintiff believes that the defendant will not have in his or her possession, after execution is issued, tangible or intangible property in this state and in the county in which the action is pending on which a levy can be made sufficient to satisfy the plaintiff's claim. The writ of garnishment shall set forth a notice to the defendant of the right to an immediate hearing for dissolution of such writ pursuant to s. 77.07. Upon issuance of the writ of garnishment, the clerk of the court shall provide by mail a copy of the writ to the defendant.

(3) Except when the plaintiff has had an attachment writ issued, no writ of garnishment before judgment shall issue until the plaintiff, or the plaintiff's agent or attorney, gives a bond with surety to be approved by the clerk payable to the defendant in at least double the amount of the debt demanded, conditioned to pay all costs, damages, and attorney's fees that the defendant sustains in consequence of the plaintiff's improperly suing out the writ of garnishment. A garnishment bond is not void or voidable because of an informality in it, nor shall the obligors be discharged because of the informality, even though the garnishment is dissolved because of the informality.

Don't waste your time worrying about this.
They have to establish the foundation that you are moving assets out of the state's jurisdiction to jusitfy.

They're not going to expend resources to do this on these small amount lawsuits.
What's more important to know is how to claim exemptions to garnishment post judgment.

vialna · 09-03-2006, 11:04 PM

fraud....and just what is it you need to do to claim exemptions to garnishment post judgement.........v

roybean · 09-03-2006, 11:35 PM

If I am not mistaken what FF is saying is that they can only take so much from your wages and if you already have several entities getting a portion of your check, anybody else has to get in line.

fraudfighter · 09-06-2006, 02:21 PM

Quote:

Originally Posted by vialna

fraud....and just what is it you need to do to claim exemptions to garnishment post judgement.........v

You would have to qualify under the requirements of one of the FL exemptions.
Certain limited types of income are not subject to garnishment, but wages are subject to garnishment unless you qualify under the Head of Family exemption.

fraudfighter · 09-06-2006, 02:26 PM

Quote:

Originally Posted by roybean

If I am not mistaken what FF is saying is that they can only take so much from your wages and if you already have several entities getting a portion of your check, anybody else has to get in line.

What I'm really saying is don't waste your time with useless distractions as prejudgment garnishment. It's really only common for big dollar cases.
A typical debtor needs to know how to properly execute a head of family claim for exemption defense, should they have a dependent and be able to qualify, and the legal requirements to qualify and proper procedure for the debtor to accomplish that, than to waste time worrying about something irrelevant.