CopyCited 19 times | Published | Court of Appeals for the Eleventh Circuit | 2015 U.S. App. LEXIS 11252, 2015 WL 3956570
...Appellees reiterated their settlement offer to
no avail, and discovery continued.
3
See id. §
222.11(2)(a) (exempting from garnishment “[a]ll of the disposable earnings of
a head of family whose disposable earnings are less than or equal to $750 a week”); see also id. §
77.041.
5
Case: 14-13715 Date Filed: 06/30/2015 Page: 6 of 36
Appellant noticed the deposition of Appellee Mitchell A....
...itten statement in opposition to
6
Case: 14-13715 Date Filed: 06/30/2015 Page: 7 of 36
an individual’s claim of exemption before an evidentiary hearing will be set. See
Fla. Stat. § 77.041(3)....
...more than one-half of her support. See Fla. Stat. §
222.11. Appellees sought that
information through discovery, and, in order to avoid dissolution of the writ of
garnishment before such discovery took place, Appellees had to file the sworn
reply. See id. §
77.041(3) (“If the plaintiff or the plaintiff’s attorney does not file a
sworn written statement that answers the defendant’s claim of exemption ....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 5870, 2009 WL 1424067
...umbaugh, Jones, Krotec and Westheimer, P.A. (Syprett Meshad). The motion alleged that garnishee Syprett Meshad was holding assets belonging to Robert. A writ of garnishment was served on Syprett Meshad that same day. On January 17, 2008, pursuant to section 77.041, Florida Statutes (2007), Janice and Gary served Robert with a statutory "NOTICE TO DEFENDANT OF RIGHT AGAINST GARNISHMENT OF WAGES, MONEY, AND OTHER PROPERTY." The Notice was sent to Robert's last known address in Alabama. The Notice, which tracked the language set forth in section 77.041, stated: The Writ of Garnishment delivered to you with this Notice means that wages, money, and other property belonging to you have been garnished to pay a court judgment against you....
...onse . . . by a deadline date" and could make unsound, imprudent, and untimely legal decisions when confronted with legal documents containing deadlines. On March 24, 2008, Robert also belatedly filed a claim of exemption using the form contained in section
77.041, alleging that the monies at issue were protected by the homestead exemption. Based on the time frame set forth in section
77.041, both the motion to dissolve the writ of garnishment and the exemption claim form were late. Because of these deficiencies, Janice and Gary moved to strike Robert's filings. At a hearing on May 16, 2008, where no testimony was presented, Robert argued that his failure to comply with the time requirements set forth in section
77.041 did not require or mandate the trial court to enter a garnishment judgment against him. Under Robert's combined interpretation of sections
77.041 and
77.07(2) of the garnishment statute, failing to comply with the statute's time requirements simply placed the matter in a default posture, where he could still move to set aside the default and could get a hearing on the issue of whether the proceeds held by Syprett Meshad were protected by the homestead exemption....
...Therefore, he asked the trial court to deny Janice and *846 Gary's motion to strike his belated filings and to simply set the matter for a hearing on the issue of whether the monies were protected by the exemption. [5] After hearing the parties' respective arguments, the court noted that section 77.041 repeatedly used the word "must" when identifying the actions a garnishment defendant must proactively take to protect wages, money, or property from garnishment. Therefore, the court concluded that the time constraints set forth in section 77.041 were mandatory and must be strictly enforced....
...Robert moved for rehearing or, in the alternative, for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). In support of his motion, Robert again relied on his previously filed affidavit as well as his doctor's affidavit. He first argued that the court's ruling misinterpreted sections
77.041 and
77.07(2)....
...It is from this order that Robert appeals. As he argued below, Robert first argues on appeal that the trial court erred when it concluded that the language of the garnishment statute required it to strike Robert's untimely homestead exemption claim. In Robert's view, because section 77.041(1) provides that one " may lose important rights" if one fails to timely assert a permitted exemption, the court should have ignored the many instances where the statute provides that a person " must " timely file a claim of exemption within twenty days of receiving notice of the garnishment. See § 77.041(1) (emphasis added)....
...Further, when the legislature has not defined a word used in a statute, such word should be given its plain and ordinary meaning. Fla. Birth-Related Neurological Injury Comp. Ass'n v. Fla. Div. of Admin. Hearings,
686 So.2d 1349, 1354 (Fla.1997). Here, section
77.041(1) clearly provides that a garnishment defendant must complete and file a claim of exemption and request for hearing within twenty days after receiving a notice of garnishment or else he may lose important rights to his property....
...Such a result would prolong garnishment proceedings and would go against the long-established principle that courts should avoid construing a statute in a manner that renders a portion of the statute meaningless. Winn-Dixie Stores, Inc.,
954 So.2d at 728. We also note that section
77.041 does not provide a procedure for a garnishment defendant to file an untimely exemption claim....
...Rather, it warns that the person can lose important rights by failing to file a timely exemption. Therefore, the trial court's interpretation of the statute was correct. In our view, contrary to Robert's argument, the isolated use of the phrase "may lose important rights" in section 77.041(1) does not negate the necessity for timely compliance with the statutory time frame set forth in the garnishment statute....
...We reject Robert's suggestion that the garnishment statute's requirements should be disregarded simply because *848 this case deals with a potential [6] homestead issue. Robert's argument implies that the homestead defense can be untimely raised because the statutory form for asserting a garnishment defense contained in section 77.041(1) does not include a box specifically labeled "homestead exemption." While we acknowledge the importance of the homestead exemption, we reject this argument....
...3d DCA 2003) (noting that homestead is abandoned by taking up permanent abode elsewhere at a distant place). Third, if the legislature had intended to allow a garnishment defendant to assert a belated homestead exemption claim, it would have so provided in section 77.041....
...ion based on Robert's actions, such as his relocation to Alabama and the use of some of the proceeds to pay attorney's fees owed to attorney Aker. [7] We note that while Robert filed a claim of exemption on March 24, 2008, using the form provided in section 77.041(1), he originally raised the homestead exemption in his March 12 response to Janice and Gary's Motion for Entry of Final Garnishment Judgment and to Dissolve the Garnishment. While section 77.041(1) provides a standard form that can be used to claim an exemption, nothing prevents a garnishment defendant from drafting his own original document to claim an exemption....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 6548, 2010 WL 1875638
...BHS, Marsh's employer. On February 8th, Marsh served a claim of exemption and requested a hearing. That same day, Marsh sought to dissolve the continuing writ, claiming that he had never received a copy of it or the related documents as required by section 77.041(2) of the Florida Statutes....
...e first BOA writ"). On April 12, 2008, Marsh served a claim of exemption as to this writ and requested a hearing. Days later, Marsh sought to dissolve it, claiming that he had never received a copy of the writ or the related documents as required by section 77.041(2) of the Florida Statutes....
...insberg's depositions as sworn statements contradicting Marsh's claim of exemption. The continuing writ of garnishment and the first BOA writ were dissolved by the court below on May 6 and June 3, 2008 on technical grounds for failure to comply with section 77.041(2)....
...granted, the court below granted these motions sanctioning both Patchett and her attorney, Phillip Michael Cullen, III. As to the continuing writ and the first BOA writ, the court below found that because Patchett had not served Marsh as required by section 77.041(2), either Patchett or attorney Cullen "knew or should have known ......
...3d DCA 2006) (confirming that orders awarding section
57.105 sanctions must contain "specific findings" that a claim or defense was not supported by the facts or the law). Rather, the order merely makes a blanket statement that because Patchett and Cullen failed to comply with the service requirements of section
77.041(2) (i.e., mail copies of the motion for writ of garnishment and the writ, itself, to Marsh's last *240 known address), they either knew or should have known after this defect was raised that the writs were "not supported by the materia...
...those amounts exempted by federal law, are to be held pending further court order. [4] Failure to serve a copy of the continuing writ on Marsh did nothing to undermine anything stated in this writ. *241 The failure to serve Marsh in accordance with section 77.041(2) did not therefore support a finding that "the Continuing Writ was not supported by the material facts necessary to establish the claim or would not be supported by the application of the then-existing law to the material facts." Hence, the sanction order relating to this writ must be reversed....
...ney whether BOA is or was indebted to Marsh; whether BOA possessed any tangible or intangible personal property belonging to Marsh; and whether it knew of anyone else indebted to or holding property belong to Marsh. Again, the failure to comply with section 77.041(2) by serving of copy of this motion and writ on Marsh did not establish that any of these representations or "claims" were untrue or unsupported....
...im, but were entitled instead to contest it and to have a hearing "as soon as [was] practicable to determine the validity of the claimed exemptions," at which Marsh, not Patchett, bore the burden of proving entitlement to a section
222.11 exemption. §
77.041(3), Fla....
...hs after the earnings are received by the financial institution if the funds can be traced and properly identified as earnings. Commingling of earnings with other funds does not by itself defeat the ability of a head of family to trace earnings. [3] Section 77.041(2) of the Florida Statutes (2008) provides: The plaintiff must mail, by first class, a copy of the writ of garnishment, a copy of the motion for writ of garnishment, and, if the defendant is an individual, the "Notice to Defendant" to...
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 11413, 2016 WL 4016280
...against any person or entity has a right to a writ of garnishment, in the manner hereinafter provided, to subject any debt due to defendant by a third person.... ” However, the debtor in a garnishment proceeding can seek to avoid the garnishment. § 77.041....
...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. § 222.12, Fla. Stat. (2012) (repealed July 1, 2013); but see § 77.041(3), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2006 WL 473149
...Lozeau, Jr., of Wright, Ponsoldt & Lozeau, L.L.P., Stuart, for appellees. MAY, J. A creditor appeals an order dissolving seven writs of garnishment. It argues the court erred in finding its replies were insufficient to comply with the requirements of section 77.041(3), Florida Statutes (2004)....
...We agree and reverse. In an attempt to execute on a judgment against Ponsoldt and his wife, the creditor Cadle obtained post-judgment writs of garnishment and served them on seven garnishees. Ponsoldt timely answered the writs using the form statutorily authorized in section 77.041(1), (2), Florida Statutes (2004)....
...As to assets possessed by three other garnishees, Ponsoldt claimed the exemption for life insurance or annuities, pursuant to sections
222.13 and
222.14, Florida Statutes (2004). Cadle timely replied to Ponsoldt's claims of exemption by filing sworn, notarized documents, pursuant to sections
77.041(3) and 222.12, Florida Statutes (2004)....
...shees consisted of a separate document for each garnishee, denying the claim of exemption. Ponsoldt moved to strike Cadle's replies. At the hearing, Ponsoldt argued that Cadle's replies were defective on their face because they failed to comply with section 77.041(3) because he had relied on section 77.041(1) to make his claims of exemption. Specifically, Ponsoldt maintained Cadle's responses merely denied his claims instead of "contesting" them and therefore did not technically comply with section 77.041(3)....
...[1] In formulating its exemption laws the State has an interest in preventing "owners of exempt property and their families" from being "reduced to absolute destitution, thus becoming a charge upon the public." Slatcoff v. Dezen,
76 So.2d 792, 794 (Fla.1954) (en banc). To protect that interest, the legislature enacted section
77.041, streamlining procedures for garnishment proceedings. 13 Fla. Jur.2d, Creditors' Rights & Remedies § 4 (Supp. 2003). Section
77.041 provides that when a writ of garnishment is issued, the clerk shall attach a notice, and a "Claim of Exemption and Request for Hearing" form. §
77.041(1)....
...ptions, and blanks for the debtor to provide his contact details. The first tick item is "head of family wages" and the ninth option is "life insurance benefits or cash surrender value of a life insurance policy or proceeds of annuity contract." See § 77.041(1)....
...The legislature obviously designed the form to satisfy the affidavit requirements set out in section 222.12, pertaining to "head of family" wages specifically, as well as providing guidance on how to claim the other authorized exemptions. Nothing in section 77.041, however, prevents a defendant from drafting an original document to claim an exemption....
...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.... § 222.12 In contrast, section 77.041 provides: [i]f the plaintiff does not file a sworn written statement that contests the defendant's claim of exemption within 2 business days after hand delivering the claim and request or, alternatively, 7 business days, if the claim and request were served by mail, no hearing is required and the clerk must automatically *1279 dissolve the writ and notify the parties of the dissolution by mail. § 77.041(3). Upon service of Ponsoldt's claims of exemption, Cadle timely served sworn documents denying Ponsoldt's entitlement. The trial court erred when it narrowly focused on the word "contest" in section 77.041. By doing so, it failed to appreciate that section 77.041 supplements, rather than replaces section 222.12....
...Thus, the trial court erred when it dissolved Cadle's writs of garnishment without holding an evidentiary hearing as to the validity of Ponsoldt's claims of exemption. Reversed and remanded. POLEN, J., and ROTHSCHILD, RONALD J., Associate Judge, concur. NOTES [1] Prior to 2000 and the enactment of section 77.041, chapter 77 did not clearly define a method for claiming any exemption....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2013 WL 3015235, 2013 Fla. App. LEXIS 9650
EMAS, J. Carlos Marquez (“Marquez”) appeals the trial court’s order vacating a clerk’s certificate of dissolution of a writ of garnishment. We reverse the trial court’s order, because the trial court’s action was in contravention of section 77.041(3), Florida Statutes (2012)....
...On February 1, 2012, BlueCare obtained a writ of garnishment against Wells Fargo, and on February 7, 2012, served Marquez with a Notice of Serving Writ of Garnishment. On February 24, 2012, Marquez served a Claim of Exemption and Request for Hearing, pursuant to section 77.041, Florida Statutes (2012), asserting that the Wells Fargo bank account was exempt from garnishment because: (i) Marquez was the head of his household, and (ii) the bank account was marital property held by Marquez and his wife as tenants by the entire-ties....
...and Marquez’s claims of exemption from garnishment. On October 9, 2012, the trial court denied Marquez’s motion to vacate final summary judgment, after which, on October 17, 2012, Marquez filed an affidavit of service and a request (pursuant to section 77.041(3)) for the clerk of court to dissolve the writ of garnishment....
...fter hand delivering the claim and request or, alternatively, 8 business days, if the claim and request were served by mail, no hearing is required and the clerk must automatically dissolve the writ and notify the parties of the dissolution by mail. § 77.041(3), Fla....
...t. The order did not stay the proceedings, and did not stay BlueCare’s statutory obligation to object timely to Marquez’s claims of exemption. —BlueCare did not request or receive an extension of time to comply with the mandatory provisions of section 77.041(3), and BlueCare cites no legal authority to support its assertion that a stay of proceedings would extend its obligation to object within three days, as mandated by the plain language of the garnishment statute....
...—More to the point, it is irrelevant how we characterize the action of the trial court at the March 28 hearing because, by that date, BlueCare’s objection was already thirty days overdue. As of February 29, Marquez was automatically entitled to a clerk’s certifícate dissolving the writ under section 77.041(3)....
CopyCited 1 times | Published | District Court, S.D. Florida | 2014 U.S. Dist. LEXIS 146285, 2014 WL 5040304
...t (2) the writ should be dissolved because the funds in the joint account do not belong to her. In her second Motion [DE 253], she argues that the writ should be dissolved because Defendant failed to comply with the notice requirements in Fla. Stat. §
77.041 and §
77.055....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 156, 2015 WL 71681
...tion
77.0305,
Florida Statutes (2013). The writ ordered Debtor’s employer, Moredirect,
Inc., to withhold no more than 25% of the Debtor’s “disposable earnings.”
Debtor timely filed a claim of exemption and request for hearing
pursuant to section
77.041(1), Florida Statutes (2013)....
CopyPublished | Florida 3rd District Court of Appeal
...any income and the funds in the garnished account belong to his wife, with
him listed only as a joint spouse on the account.
1
Abramov’s individual account is not the subject of this appeal.
2
See Claim of Exemption and Request for Hearing; § 77.041(1), Fla....
...question of statutory interpretation that is reviewed de novo.’” Kane v.
Stewart Tilghman Fox & Bianchi, P.A.,
197 So. 3d 137, 141 (Fla. 4th DCA
2016) (quoting Baker v. Storfer,
51 So. 3d 652, 653 (Fla. 4th DCA 2011)).
On appeal, Abramov argues section
77.041(1), Florida Statutes, does
not require him to formally state “the funds were protected by tenancy by the
entireties” on the exemption form....
...3
statute.” Zivitz v. Zivitz,
16 So. 3d 841, 847 (Fla. 2d DCA 2009). “[W]hen
the legislature has not defined a word used in a statute, such word should
be given its plain and ordinary meaning.” Id. The relevant portion of section
77.041(1) states:
IF AN EXEMPTION FROM GARNISHMENT
APPLIES TO YOU AND YOU WANT TO KEEP
YOUR WAGES, MONEY, AND OTHER PROPERTY
FROM BEING GARNISHED, OR TO RECOVER
ANYTHING ALREADY TA...
...BELOW AND HAVE THE FORM NOTARIZED. IF
YOU HAVE A VALID EXEMPTION, YOU MUST
FILE THE FORM WITH THE CLERK’S OFFICE
WITHIN 20 DAYS AFTER THE DATE YOU
RECEIVE THIS NOTICE OR YOU MAY LOSE
IMPORTANT RIGHTS.
§ 77.041(1), Fla. Stat. (emphasis added).
Here, the plain and unambiguous language of section 77.041(1)
required Abramov to “complete a form for claim of exemption” in a timely
manner....
...funds in the garnished account belong to his wife and that he is listed only
as a joint spouse, we find this sufficient to put the court on notice that he was
preserving his exemption under the tenancy by the entireties. See Zivitz,
16
So. 3d at 847 (holding section
77.041(1) only “provides that a garnishment
defendant must complete and file a claim of exemption and request for
4
hearing within twenty days after receiving a notice of garnishment or else he
may lose important rights to his property”); DMB Inv....
CopyPublished | Florida 3rd District Court of Appeal
...HENDON, J.
Regions Bank appeals from a non-final order temporarily granting, without
prejudice, Mario Squitieri’s Emergency Claim of Exemption from a writ of
garnishment. We reverse the order under review and remand for a hearing as
required by section 77.041(3) of the Florida Statutes.
In 2014, Regions Bank obtained a default final judgment against Squitieri in
the amount of $198,234.72....
...is non-final appeal. 1
Regions Bank argues that the trial court reversibly erred by temporarily
granting Squitieri’s claim of exemption to garnishment without a hearing to
determine the veracity of the claim of exemption. We agree.
Section 77.041(3) of the Florida Statutes, provides as follows:
Upon the filing by a defendant of a sworn claim of exemption and
request for hearing, a hearing will be held as soon as is practicable to
determine the validity of the claimed exemptions....
...hearing
on Squitieri’s claim of exemption, but due to the cancellation of hearings in response
to the coronavirus, it did not hold the required hearing before temporarily granting
Squitieri’s claim of exemption. As a hearing is required under section 77.041(3),
we reverse the order under review and remand with directions to the trial court to
1
We have jurisdiction pursuant to Florida Rule of Appellate Procedure
9.130(3)(C)(ii).
3
conduct...
CopyPublished | Florida 4th District Court of Appeal | 2004 Fla. App. LEXIS 7725, 2004 WL 1196983
...Once the writ issues, the garnishee has twenty days to serve an answer. §
77.04, Fla. Stat. (2003). In addition, upon issuance of the writ, if the debtor is an individual, the clerk of the court shall attach a notice of right against garnishment of wages or other property. §
77.041, Fla. Stat. (2003). Pursuant to section
77.041, the debtor can claim certain exemptions in writing, and the debtor has the right to request a hearing....
CopyPublished | Florida 4th District Court of Appeal | 2004 Fla. App. LEXIS 18780, 2004 WL 2823209
...This Court found that such facts demonstrated “only a possibility that disqualification might be necessary.” Id. Similarly, Brooks asserted that Franehino was a fact witness and must be deposed. Brooks’s assertion is based on Franchino’s sworn statements filed pursuant to section 77.041(3), Florida Statutes (2004), which requires that if a defendant asserts a claim of exemption and a plaintiff does not file a sworn written statement contesting such exemption, the writ of garnishment must be automatically dissolved....
CopyPublished | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 19220
...As to the writ of garnishment, the unit owner asserts that the trial court
committed reversible error by not dissolving the writ when the Association failed
to file a sworn written statement contesting the unit owner’s claimed exemptions
within the time provided by section 77.041(3), Florida Statutes (2014)....
...after hand delivering the claim and request or, alternatively, 14
business days if the claim and request were served by mail, no hearing
is required and the clerk must automatically dissolve the writ and
notify the parties of the dissolution by mail.
§ 77.041(3), Fla....
