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Recent Case Law Changes Common Procedure for Opposing Garnishment Exemption Claims
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Recent Case Law Changes Common Procedure for Opposing Garnishment Exemption Claims

November 7, 2011 Professional Services Industry Legal Blog

Reading Time: 4 minutes

It is standard practice among attorneys practicing in Florida to sign the affidavit in opposition to a claim of exemption from garnishment on behalf of their clients.  A case recently decided in South Florida has effectively changed the ability of attorneys to continue with such a practice.  Now, a very strict interpretation of the garnishment statute may eliminate the ability of many attorneys to seek garnishment as a method of collecting on judgments.

 The Florida statutes provide for a method of obtaining an exemption to a garnishment action as well as the procedure for contesting a request for exemption.  Section 222.12 states as follows:

Proceedings for exemption.—Whenever any money or other thing due for labor or services as aforesaid is attached by such process, the person to whom the same is due and owing may make oath before the officer who issued the process or before a notary public that the money attached is due for the personal labor and services of such person, and she or he is the head of a family residing in said state. When such an affidavit is made, notice of same shall be forthwith given to the party, or her or his attorney, who sued out the process, and if the facts set forth in such affidavit are not denied under oath within 2 business days after the service of said notice, the process shall be returned, and all proceedings under the same shall cease. If the facts stated in the affidavit are denied by the party who sued out the process within the time above set forth and under oath, then the matter shall be tried by the court from which the writ or process issued, in like manner as claims to property levied upon by writ of execution are tried, and the money or thing attached shall remain subject to the process until released by the judgment of the court which shall try the issue.

A case decided last June by the Fourth District Court of Appeal has taken a close look at this statute and decided on a strict interpretation of the language.  In Caproc Third Avenue, LLC v. Donisi Insurance, Inc., 67 So.3d 312, 313 (FL 4th DCA, 2011), Caproc obtained a final judgment against Donisi and subsequently filed a garnishmentaction to collect on the outstanding debt.  Upon Donisi filing a claim of exemption, Caproc responded by submitting to the court an affidavit in opposition to the claim of exemption, which was attested to by the counsel for Caproc.  The defense filed a motion to strike the affidavit, claiming the clear construction of the statute required signature by the Plaintiff party itself.  Id. at 314.  The Court, upon reviewing the plain language of the statute, agreed with the defense.  It held, “…the above statute is clear and unambiguous.  It requires the party [emphasis added], and not the attorney, to deny under oath
the facts set forth by the debtor.”  Id. at 315.

 This new ruling could have significant effects on attorneys who cater to corporate, national and international clients.  In order to satisfy Fla. Stat. § 222.12, an oath denying a claim of exemption must be submitted within 2 days of service of the claim.  This will prove difficult, if not impossible, for such a clientele.  Consider the time needed for mailing the original document from the client to attorney alone, not to mention the time necessary for preparation and filing by the attorney.  To enforce such a ruling could stall an already strained system of collecting on money judgments.  However, the Court in Caproc was very clear that an oath signed by the attorney of record is not valid under the statute.  Therefore, any Plaintiff seeking to oppose a claim of exemption must ensure that the oath in opposition to the claim is signed by the party itself.

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