Congratulations! You won a monetary judgment against your opposing party. You are now entitled to a sum of money. But how do you turn that piece of paper into a meaningful result?
The process and cost of enforcing and collecting a judgment is something that most parties do not fully consider at the outset of a lawsuit. The fact is that you may need to take active steps to recover the monies the court has awarded to you.
Step 1: Investigate Assets
The first step in enforcing a judgment is to investigate the collectible assets of the opposing party against whom you obtained a judgment (the “debtor”). The law provides the successful party in a lawsuit (the “creditor”) with certain procedural tools to gain information from the debtor regarding his or her collectible assets. This process is known as discovery in aid of execution.
For example, a creditor may take the deposition of the debtor or propound interrogatories (questions). The debtor must provide sworn answers to the interrogatories. Failing cooperation, the creditor may move the court to compel the debtor to attend a deposition or answer interrogatories. The court has the ability to impose fines or jail time in egregious circumstances.
Step 2: Execute the Judgment
The next step is to execute the judgment upon the debtor’s collectible assets. One simple and effective means of doing this is to record a certified copy of the judgment in the official records of the county in which the real property is located, causing the judgment to become a lien upon the real property in certain circumstances. With the lien in place, you can then levy and execute upon the real property to satisfy the judgment amount (subject to any superior liens upon the property).
This method is not available if the real property is homestead property of the judgment debtor. Article X, Section 4, of the Florida Constitution exempts homestead property from judgment liens or forced sale. It is important to note that the homestead status of property for tax purposes is not determinative of whether the property is considered homestead for purposes of the constitutional exemption against creditors. Additionally, it is not likely practical to seek a lien on a property that is subject to a mortgage that exceeds the value of the property or other superior liens that may reduce the proceeds available from sale of the property.
You can also seek certain other assets to satisfy a judgment:
Garnishing wages or bank accounts. This option is not available if the funds to be garnished qualify as the wages or salary of a head of household and the debtor has not consented in writing to waive the head of household exemption.
Attaching liens to personal property. Personal property of the judgment debtor may be executed upon subject to the debtor’s ability to claim an exemption of up to $4,000 if he or she is not already claiming a homestead exemption. Fla. Stat. § 222.25 (2015). A judgment debtor may claim an exemption of up to $1,000 equity in a personal motor vehicle.
Please note that the above options may be subject to the applicability of additional exemptions under state and federal law.
Learn About Additional Options by Speaking With Counsel
The approach outlined here is but a brief explanation of the procedure you may use to enforce judgments in Florida. There are numerous additional means available to execute judgments, as well as additional exemptions available under Florida and federal law. If you are either enforcing a judgment or defending enforcement of a judgment, it is wise to seek the advice of legal counsel to learn your rights in a timely manner.
This newsletter is for general information and education purposes only. It is not offered as legal advice or legal opinion. To the extent this message contains tax advice, the U.S. Treasury Department requires us to inform you that any advice in this letter is not intended or written by our firm to be used, and cannot be used by any taxpayer, for the purpose of avoiding any penalties that may be imposed under the Internal Revenue Code. Advice from our firm relating to Federal tax matters may not be used in promoting, marketing or recommending any entity, investment plan or arrangement to any taxpayer.
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