CopyPublished | United States Bankruptcy Court, S.D. Florida. | 2010 Bankr. LEXIS 1616
...eral unsecured debt. Under Florida Law, Holden became a secured creditor with respect to the Debtor's personal propertyother than fixtures, money, negotiable instruments, and mortgagesthe moment he filed the Judgment Lien Certificate. Fla. Stat. § 55.202(2)....
...for various purposes. Holden filed the Judgment Lien Certificate on May 19, 2006. The only assets of the Debtor on May 19, 2006 would have been what remained of the $215,000. Because the judgment lien could not have attached to money, see Fla. Stat. § 55.202(2), Holden is a completely unsecured creditor....
CopyPublished | United States Bankruptcy Court, N.D. Florida
...The probability of success and complexity of the underlying adversary proceeding revolve around this Court's interpretation of the Florida statute under which the JLCs were filed. Unfortunately, there is conflicting case law from across the state interpreting the statute. The statute, Fla. Stat. § 55.202 (2)(a), states: A judgment lien is acquired by filing a judgment lien certificate in accordance with s....
...Objecting Creditors argue that the underlying issue in the adversary proceeding could be resolved by a simple summary judgment motion because the JLCs were filed prior to the expiration of the period for a motion for rehearing to be filed, so the JLCs were "permanently void and of no effect," pursuant to Fla. Stat. § 55.202 (2)(a)....
...SEPH, on the other hand, argues that the litigation would be "protracted and costly ... with such litigation yielding only uncertain and possibly minimal benefit to the Bankruptcy Estate." 11 SEPH further argues that the inclusion of the phrase "for which let execution issue," bypasses the requirements of Fla. Stat. § 55.202 (2)(a). Both parties have offered case law in support of their respective positions, but the case law does not speak to the issue of whether including the phrase "for which let execution issue" constitutes "cause" under the second sentence of Fla. Stat. § 55.202 (2)(a)....
...While Florida law is mostly unsettled on whether the inclusion of the phrase "for which let execution issue" renders a judgment final, there is a case out of the United States District Court for the Southern District of Florida that suggests that Fla. Stat. § 55.202 (2)(a) is clear on its face in terms of the timing of filing a judgment lien certificate....
...e at issue had been prematurely filed. Id. After determining that the rehearing time had been reset by the amendment, the court held, without further discussion, that "[t]he Lien Certificate was prematurely filed, did not comply with Florida Statute section 55.202, and [was] therefore 'permanently void and of no effect.' " Id. at *6 (citing Fla. Stat. § 55.202 (2)(a) )....
...It is well established that when a court finds "the term of a statute unambiguous, judicial inquiry is complete, except in 'rare and exceptional circumstances.' " Garcia v. U.S.,
469 U.S. 70 , 75,
105 S.Ct. 479 ,
83 L.Ed.2d 472 (1984) (citations omitted). Here, Fla. Stat. §
55.202 states that a judgment lien certificate may only be filed after the expiration of the time for rehearing, unless a court, for cause shown, allows the judgment lien certificate to be filed early. 12 One might contend that in Paladin Shipping, the court's lack of discussion on the issue of prematurely filing a judgment lien certificate indicates that Fla. Stat. §
55.202 (2)(a) is clear on its face and does not allow the premature filing of a judgment lien certificate without prior authorization from the court....
...But SEPH does not address the second requirement of the statute: that the time for rehearing expire. SEPH has not convinced this Court that the simple inclusion of the phrase "for which let execution issue" in the Judgments constituted "cause" as required under Fla. Stat. § 55.202 (2)(a), that would allow the immediate filing of the JLCs....
...icating that collection could begin, I would have objected instead of agreeing to Mr. Mead's final judgment." 14 The conflicting views of these two licensed attorneys, who are intimately familiar with this statute, is further support that Fla. Stat. § 55.202 (2)(a) may not be as clear and unambiguous as the parties would lead this Court to believe....
...Mead's testimony to be honest and straightforward, and he justifiably believed that the JLCs were timely filed due to the custom in his area; however, based on the Paladin Shipping case and Ms. Lyons' testimony, and this Court's own statutory interpretation of § 55.202, this Court is not convinced that SEPH's JLCs were timely filed. The issue in the adversary proceeding is validity of the JLCs, so the timing requirement under Fla. Stat. § 55.202 (2)(a) is vital....
...Here, three of the factors, as addressed above, weigh against approving the settlement. While Florida state law is unsettled on the finality of judgments that include the phrase "for which let execution issue," there is federal case law to support the assertion that Fla. Stat. § 55.202 (2)(a) is unambiguous on its face regarding the timing of filing a judgment lien certificate....
...07 , 1312-1313 (11th Cir. 2009). In re Justice Oaks II, Ltd. ,
898 F.2d 1544 (11th Cir. 1990). Id. at 1549 (citing Martin v. Kane (In re A & C Properties),
784 F.2d 1377 , 1381 (9th Cir. 1986) (citations omitted) ). Doc. 357 at p. 18. Fla. Stat. §
55.202 (2)(a)....
