Florida Collections Attorney
Congratulations! You have won your case and a judgment has been entered in your favor. While this is an important milestone for your case, this is also where the “real work” begins.
Until you take important and proactive steps to perfect your judgment, attach the judgment to the debtor’s real or personal property, and to proactively collect, your judgment may not be worth anything more to you than the paper it is printed on.
A study conducted by an investigative journalist writing for the American Bar Association’s (ABA) publication, the ABA Journal, determined that as many as 80% of judgments in America go uncollected. To our firm, this is a disturbing statistic, because it represents money literally left of the table.
The number one reason cited by the ABA’s study for the lack of a successful collection result was “incompetence and/or a lack of initiative.” At the RAK Firm we suffer from neither of these undesirable traits and will work tirelessly for you to achieve the best collection result in your case.
We know that as a judgment creditor, it’s your money and you have options! We offer a wide range of strategies based upon your budget and can personalize a collection strategy to you, your case, and your goals. Our services range from passive and affordable judgment perfection and correction techniques, to the most aggressive approach available. However, regardless of whether you choose to retain our services, there are several things you should know about your post collection rights as well as some common mistakes you should be aware of.
The most common mistake our firm encounters when reviewing a collection client’s case is a failure of “attachment.” Attachment is the legal method of seizing or liening a debtor’s property for the benefit of the creditor. Fla. Stat. §55.10(1) provides: “A judgment, order, or decree does not become a lien on real property unless the address of the person who has a lien as a result of such judgment, order, or decree is contained in the judgment, order, or decree or an affidavit with such address is simultaneously recorded with the judgment, order, or decree.” Accordingly, it is important that your judgment either contains your (the creditor’s) address or is recorded with an Affidavit stating your address. If your judgment does not include, or is not recorded with, this information, your judgment does not “attach” or become a lien upon any real estate the debtor may own. This effect of this critical mistake is that the debtor could sell their real estate without the condition that they pay all or part of your judgment. Judgments are valid for ten years from the date of entry. Collection actions can continue to be initiated during an additional ten-year period following the re-recordation of your judgment, for a total of up to twenty years. In some cases, collection efforts can even begin at a later date.
A similar problem/mistake exists for your judgment with regard to the debtor’s personal property. The Florida Department of State maintains a registry of Judgment Lien Certificates. Filing with the Department of State serves as public notice that the creditor has a monetary judgment placed against the debtor. Judgment Liens are valid for five years from the original filing date. Florida law allows judgment liens to be filed a second time to extend the lien’s validity five more years. (See s.55.201-55.209, F.S.) Because filing with the Department of State notifies others of your claim, this filing can sometimes be a necessary step prior to applying for any Writs of Execution or Levy against the debtor’s personal property (equipment, trade fixtures, motor vehicles, tools, and other large or valuable tangible property). Failing to properly register your judgment with the Department of State can result in a failure of your judgment to properly “attach” or become a lien upon any personal property the debtor may own. This effect of this critical mistake is that the debtor could sell their personal property without the condition that they pay all or part of your judgment.
Taking the steps to ensure your judgment properly attaches to the real and personal property of the debtor are an essential step to getting your judgment paid. Most of these common mistakes can be uncovered by our firm’s experienced attorneys during an initial consultation.
Besides the correction of these common mistakes or the perfection of your judgment, creditor’s have additional, more aggressive options for collection that our office would be happy to assist with.
Some of these options for creditors who know a debtor’s assets include:
- Wage garnishment;
- Bank account garnishment;
- Repossession or foreclosure of secured property;
- Sheriff’s Levy
- Charging Liens on Distributions (from an LLC, Partnership, Trust, etc.)
If you, the creditor, do not know what assets a debtor has, our firm can develop a personalized discovery strategy for you.
After a judgment is entered, a creditor has the right to engage in post-judgment discovery, the most cost-effective method being the Fact information Sheet (Form 1.977). Florida Rule of Civil Procedure §1.560 requires that the debtor provide this form to the judgment creditor upon request. This form required the debtor to disclose, under oath, critical information such as: where their bank accounts are held and their balance(s); their employer and wages; their real and personal property and its location, and other critical information and supporting documentation. Failure of the debtor to complete this form and to truthfully disclose this information can result in contempt of court. Even though in America, we do not imprison debtors solely for a failure to pay, it is still possible to imprison a debtor for failing to timely give a creditor information about their ability to pay (such as a court-ordered Fact Information Sheet). Other options for the discovery of a debtor’s assets include: depositions; written discovery questions, document production, etc.
Finally, if a debtor attempts to evade the payment of your judgment by transferring their real or personal property to others you may have additional remedies under Florida’s Uniform Fraudulent Transfer Act (FUFTA), Florida Statutes, Chapter 726. The relevant statutory provisions governing “Remedies of Creditors” under Florida law are § 726.108 and § 726.1.09. § 726.108 lists five primary remedies:
- Appointment of receiver
- Levy and execution
When a transfer is voidable, there is not a bright line rule to determine when courts will prefer avoidance over money judgments and vice versa. Nevertheless, courts tend to determine appropriate relief on a case-by-case basis because of the various factors to consider (i.e., the good faith or lack thereof of trustees).
Recovery of Attorney’s Fees at Post-Judgment Level
Even if the basis for your underlying case (a contract, statute or other writing) does not include an attorney’s fee provision, you may still have options for the recovery of your post-judgment collection attorney’s fees and costs.
Fla Stat. §57.115(1) provides: “The court may award against a judgment debtor reasonable costs and attorney’s fees incurred thereafter by a judgment creditor in connection with execution on a judgment.” This statute has been interpreted by the courts in our area to mean a court has the authority to award a judgment creditor its attorney’s fees and costs in connection with its execution on a judgment. In making this determination, the court will consider: (a) whether the judgment debtor has attempted to avoid payment of the judgment and; (b) other factors as may be appropriate in determining the value of the services provided or the necessity for incurring costs in connection with the execution.
It should be noted that the court in Paz v. Hernandez, 654 So. 2d 1243 (Fla. 3rd DCA 1995), found that remedies available under §57.115 do not apply to garnishment proceedings under §77.01., but do arguably apply to more in-depth/extensive collection efforts.
There is no statutory fee provision in Chapter 726 for fraudulent transfer actions. However, section 726.108(1)(c)3, Florida Statutes, otherwise known as the “catchall provision,” authorizes courts to grant “[a]ny other relief the circumstances may require.” Fla. Stat. § 726.108(1)(c)3.
Our firm can review your case, assess your goals, and formulate a collection strategy that perfectly fits your needs with your maximum recovery in mind.
Don’t delay while the judgment debtor is at play! Contact one of the experienced Florida collections lawyers at RAK Law Firm today. We can be reached at (813) 750-0513 or via our online form.
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Fill out the contact form or call us at (407) 437-0319 to schedule your consultation.