Florida enhances, clarifies post-judgment collection procedures
Florida has amended chapter 56, Florida Statutes, updating some terms and revising the procedures involving enforcement of money judgments. The new provisions take effect July 1, 2016.
With respect to proceedings supplementary, section 56.29 now provides that a judgment creditor must specify in a motion or supplemental affidavit the specific property of the judgment debtor, not exempt from execution, in possession of the debtor or any other person that may be applied toward satisfaction of the judgment. It creates a new procedure for bringing in non-parties who may hold such property by requiring the court to issue a Notice of Appearance directed to such persons and requiring them to file an affidavit within seven business days of the service of the Notice of Appearance, stating why the property, debt or other obligation should not be applied to satisfy the judgment. For good cause shown, the court can shorten the response time.
The Notice of Appearance must describe with reasonable particularity the property, debt, or other obligation that may be available to satisfy the judgment, must provide the person with the opportunity to present defenses, and must indicate that discovery as provided under the rules of civil procedure and is available, and that there is a right to a jury trial as provided in s. 56.18. Service of the Notice of Appearance must be made like any other service of process under Chapter 48. The responding affidavit must raise any fact or defense against application of the property to the judgment, including any legal defenses such as lack of personal jurisdiction. However, legal defenses can be filed separately from the affidavit and need not be under oath. As before, a court may still order a judgment creditor to appear to provide testimony concerning the property subject to execution.
The amendments also clarify that a proceeding under chapter 726, to avoid fraudulent transfers, is to be brought pursuant to a supplemental complaint within the same case and before the same judge as the original proceedings. The clerk is to docket it under the same case number and also assign a supplemental proceeding number.
These changes are a positive development for judgment creditors. They can speed up the process of bringing before the court third parties who may have property subject to execution. The Notice of Appearance allows the judgment creditor to obtain a rapid response from third parties, under oath, without the need to go through deposition practice. The mandatory seven business days eliminates disputes over whether the third party has a right to a longer response time.
The legislation implementing these changes can be found in the Laws of Florida, Chapter 2016-33, and will appear in the 2016 Florida Statutes.