CopyCited 281 times | Published | Court of Appeals for the Eleventh Circuit | 1999 U.S. App. LEXIS 27985, 1999 WL 982407
...That section requires the
judgment creditor to serve, by mail, "a copy of the writ, a copy of the [garnishee's] answer, a notice, and a
certificate of service" on the judgment debtor. The required notice must advise the judgment debtor that he
may move to dissolve the writ under section § 77.07(2) of the Florida Code, and that he may have exemptions
from the garnishment which can be asserted as defenses....
...ity
disability benefits and United States Army retirement benefits, both of which are exempt from garnishment
under federal law. All of the funds attached by the writ of garnishment were subject to exemption under
federal law. Pursuant to section § 77.07 of the Florida Code, a judgment debtor may, by motion, obtain
dissolution of a writ of garnishment by proving that the attached funds are exempt from garnishment under
federal or state law....
CopyCited 107 times | Published | Court of Appeals for the Eleventh Circuit
...§
56.16 (outlining procedure for third-party claimants
to halt an execution sale); Fla. Stat. §
77.055 (requiring service of garnishee’s
answer to the writ on “any . . . person disclosed in the garnishee’s answer to have
any ownership interest in the” asset); Fla. Stat. §
77.07(2) (permitting “any other
person having an ownership interest in [garnished] property” to move to dissolve
the writ with a motion “stating that any allegation in plaintiff’s motion for writ is
untrue”)....
...da law did not
apply, the circumstances indicate that the decision was harmless. The Partnerships
were not prevented from taking advantage of Florida law specifically providing for
third-party challenges to garnishment proceedings. See Fla. Stat. § 77.07(2)....
...It therefore properly denied the motion
to dissolve the writ. Any failure by the district court to conform to Florida’s notice
procedures was harmless because the Partnerships received actual notice and were
able to contest the allegations as provided in § 77.07; they merely failed to succeed
on the merits.
The execution of the real property was likewise proper under Florida law.
The Partnerships complain that Plaintiffs did not furnish the required affidavit,
rendering the execution invalid....
CopyCited 14 times | Published | Court of Appeals for the Eleventh Circuit | 118 P.U.R.4th 287, 1990 U.S. App. LEXIS 16430, 1990 WL 125506
expressly permit such ratemaking, see Miss.Code Ann. § 77-7-1 et seq. (1972 & Supp.1984). Rather, that statute
CopyCited 12 times | Published | Florida 3rd District Court of Appeal
would not be recoverable. 9 Fla.Jur., Damages § 77. [7] Note 4, supra; Restatement, Contracts § 329
CopyCited 12 times | Published | Florida 3rd District Court of Appeal
...The appellee American Bankers Insurance Company filed an answer, and pursuant to stipulation an affidavit filed by Johnson was treated as a traverse. Also pursuant to stipulation the testimony and depositions in the tort litigation were considered as evidence. § 77.07, Fla....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 5870, 2009 WL 1424067
...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....
...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)....
...[7] Under the facts of this case, nothing precluded the trial court from concluding that he had abandoned his homestead exemption claim over the monies held by Syprett Meshad by failing to timely file an exemption claim. Robert next argues that pursuant to section 77.07(2), Florida Statutes, the only effect of the garnishment statute was to place him in garnishment default, which the court could set aside if he established due diligence, a meritorious defense, and excusable neglect....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1975 Fla. App. LEXIS 14783
...§
77.061 provides for a reply by the plaintiff (formerly known as a traverse and so designated sub judice) by which plaintiff may, if not satisfied with the garnishee's answer, place in issue any allegations of the answer as plaintiff may desire. F.S. §
77.07 provides for a trial of the issues made by the writ of garnishment, answer and reply....
CopyCited 8 times | Published | Supreme Court of Florida
...The court entered an order denying defendant's motion and specifically upheld the validity of the challenged statutes. We disagree. In light of recent judicial treatment of similar prejudgment procedures, we hold that Sections
77.031,
77.04,
77.06, and
77.07, Florida Statutes (1975), insofar as they pertain to prejudgment garnishment, are unconstitutional....
...The statute expressly entitled the debtor to an immediate hearing after seizure and to dissolution of the writ absent proof by the creditor. Petitioner argues that the Florida garnishment statute, like that of Louisiana, provides sufficient constitutional safeguards and points specifically to Section 77.07(2), Florida Statutes, which provides for an immediate post-garnishment hearing before a judge....
...d with. Only then can the individual have his use and enjoyment of *1033 property protected from arbitrary encroachment. (footnote omitted) For the reasons stated herein, the order of the Circuit Court is reversed. Sections
77.031,
77.04,
77.06, and
77.07, Florida Statutes (1975), insofar as they pertain to prejudgment garnishment, are declared unconstitutional and the writ of garnishment dissolved....
...stained damage on account thereof. (4) Service of a writ on a garnishee shall render him liable as provided in this chapter in any fiduciary or representative capacity held by him if the fiduciary or representative capacity is specified in the writ. 77.07 Writ; dissolution....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 1990 WL 26684
...y in which the action is pending on which a levy can be made sufficient to satisfy the plaintiff's claim. The writ of garnishment shall set forth a notice to the defendant of his right to an immediate hearing for dissolution of such writ pursuant to s. 77.07....
...3d DCA 1987), and cases cited (pre-trial injunction or other restraint upon dissipation of property unavailable in action for money damages alone). [3] We find no error in the trial court's discretionary conclusion that Barbouti had a reasonable probability of success on the merits. § 77.07, Fla....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2013 Fla. App. LEXIS 14154, 2013 WL 4734574
...ad been the recipients of fraudulent transfers from Value Seafood. Akerman then filed a Notice for Non-Jury Trial and trial was set for March 16, 2012. In February 2012, the Garnishees filed a Notice of Dissolution of Writ of Garnishment pursuant to section 77.07(5), Florida Statutes (2012), in which they alleged that the First Writs were automatically dissolved by operation of law because of Ak-erman’s failure to comply with the requirements of the statute....
...he parties subsequently appeared at a calendar call. A hearing on the matter was held March 1, 2012, and on March 20, 2012, the trial court entered an order (the “March 20th Order”) finding that the automatic dissolution of the First Writs under section 77.07(5), discharged the Garnishees from further liability under the First Writs, and removed the case from the trial calendar “without prejudice to [Akerman] procuring new writs of garnishment to be served on the garnishees.” New writs o...
...The trial court agreed and entered an order entitled “Amended Order Clarifying Order Dated March 20, 2012,” (the “Amended Order”), in which it withdrew and replaced the March 20th Order and granted the motion to dismiss the newly filed Second Writs. The Amended Order states that under section 77.07(5), Akerman’s failure to file a motion for final judgment within six months after filing the First Writs, or to seek an extension of the writs, resulted in dissolution of the First Writs and discharge of the garnishees from further liability under the First Writs. The trial court further found that it would be “circumventing the intent and meaning of § 77.07(5)” to allow “a plaintiff/judgment creditor ... to file another subsequent writ of garnishment after a prior writ of garnishment was dissolved pursuant to § 77.07(5),” and concluded that the March 20th Order should not have included “permissive language entitling the judgment debtor the opportunity to file a subsequent writ.” This appeal timely followed....
...1016 , as we agree with the trial court that Akerman’s failure to file a motion for final judgment or to seek an extension of the First Writs within six months after their filing resulted in the automatic dissolution of the First Writs pursuant to section 77.07(5)....
...t leave to comply with the statutory process effectively denied Akerman its due process rights to have its claim adjudicated on the merits. Gigliotti Contracting N., Inc.,
788 So.2d at 1016 . We further find that there is no basis in the language of section
77.07(5) to support the trial court’s conclusion that it would be “circumventing the intent and meaning of §
77.07(5)” to allow “a plaintiff/judgment creditor ... to file another subsequent writ of garnishment after a prior writ of garnishment was dissolved pursuant to §
77.07(5).” “[Legislative intent is determined primarily from the text [of a statute].” Cont’l Cas....
...When a statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. See City of Miami Beach v. Galbut,
626 So.2d 192, 193 (Fla.1993). Section
77.07 was amended in 2005 to add subsection (5), which states as follows: *87 If the plaintiff fails to file a dismissal or motion for final judgment within 6 months after filing the writ of garnishment, the writ shall automatically be dissolved and the garnishee shall be discharged from further liability under the writ....
...uld be used to determine legislative intent. It provides for the automatic dissolution of a writ of garnishment, and for the discharge of a garnishee, not from all further liability, but rather, from liability under the writ automatically dissolved. § 77.07(5), Fla. Stat. (“[T]he writ shall automatically be dissolved and the garnishee shall be discharged from further liability under the writ”) (emphasis added). We cannot extend the express terms of section 77.07(5) to hold that a subsequent writ of garnishment is impermissible where a prior writ of garnishment was automatically dissolved pursuant to the terms of that subsection....
...First Federal Savings & Loan of Englewood,
571 So.2d 2 (Fla. 2d DCA 1990), does not alter our conclusion, as that opinion is distinguishable. First, Matthews concerns the construction and application of section
77.28, Florida Statutes (1989), not section
77.07(5)....
...lude that the dissolution here is also tantamount to a final judgment adjudicating the merits of Aker-man’s claim against the Garnishees. IV. CONCLUSION Accordingly, based on the foregoing, we find no error with the trial court’s conclusion that section 77.07(5) required automatic dissolution of the First Writs, and we affirm the Amended Order in this respect. We reverse, however, that portion of the Amended Order which granted the Garnishees’ motion to dismiss the newly filed Second Writs because neither section 77.07(5) nor Matthews bar the filing of successive writs of garnishment....
CopyCited 6 times | Published | District Court, M.D. Florida | 2015 U.S. Dist. LEXIS 28654, 2015 WL 1033915
...issolved pursuant to Ch.
77.041(3), F.S., as the plaintiff did not file a response to the Claim of Exemption. As to the failure of interested third parties (defendants’ wives and Rodgers Revocable Trust) to file motions to dissolve pursuant to Ch.
77.07, F.S., the Court found that defendants’ motions to dissolve sufficiently put the plaintiff on notice as to all parties having potential interests in the accounts....
...e were co-owners of the Kearney accounts. Regions further argues that the co-owners were on actual notice of the garnishment, and filed' affidavits asserting an ownership interest, but did not file a motion to dissolve the writs, in accord with F.S. § 77.07(2)....
...appearing to have an ownership interest in the involved property. The signature cards as to Defendant Kear-ney’s accounts reveal names and addresses of other persons having, or appearing to have, an ownership interest in the involved property. Ch. 77.07(2), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 11413, 2016 WL 4016280
...ve monies owed to the defendant. Id. Two-and-a-half years later, the garnisheés moved to dissolve the writ, arguing that the writs had automatically dissolved when plaintiff failed to file a motion for final judgment within 6 months, as required by section 77.07(5), Florida Statutes (2012)....
...the new writs, arguing that the initial dissolution was “tantamount to a final judgment.” Id, at 86. The trial court agreed and dismissed the second writs, finding that allowing a second writ would “ ‘eir-cumvent[ ] the intent and meaning of § 77.07(5)’ to allow (a plaintiff/judgment creditor ... to file another subsequent writ of garnishment after a prior writ of garnishment was dissolved pursuant to § 77.07(5)[.]’” Id. (omission in original). The Third District Court of Appeal reversed, holding that “there is no basis in the language of section 77.07(5) to support the trial court’s conclusion” that it would be thwarted by allowing 'a second writ....
...The failure to file a sworn denial of a claim of exemption to a writ for garnishment does not operate as an adjudication on the merits of the exemption issue. Like the Third District in Akerman, we look to the language of the statute at issue. The language of section 222.12, like that of section 77.07(5) (at issue in Akerman), does not provide a basis to conclude that the Legislature intended the failure of a creditor to deny an exemption with respect to one writ of garnishment to operate as a bar on future writs....
CopyCited 5 times | Published | District Court, M.D. Florida
...The Florida procedure similarly does not provide for notice to the debtor. The writ of garnishment may be issued on the unsworn motion of the plaintiff or his attorney. The procedure does not give the debtor a prior opportunity to challenge the issuance of the writ. The Court observes that Fla.Stat.Ann. § 77.07 does provide for a prompt hearing in which the defendant may challenge the issuance of the writ....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...Although the garnishee's answer did not indicate the amount of disposable (or aftertaxes) earnings, the answer did clearly reveal that the stated amount of wages represented gross earnings, and the court below was obligated to conduct a further inquiry as to this issue, under its authority pursuant to §
77.07 and §
77.083, Florida Statutes....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2001 WL 282804
...Slatcoff v. Dezen,
76 So.2d 792, 794 (Fla.1955). Despite American General Life Insurance Company's interest, Windsor-Thomas argues that the garnishment statute precludes anyone but the debtor from obtaining a dissolution of the writ of garnishment. Section
77.07(1), Florida Statutes (1997), permits a defendant to move to dissolve the writ, apparently under any legal basis, and section
77.07(2) permits "any other person having an ownership interest in the property" to seek dissolution on the basis that "any allegation in plaintiff's motion for writ is untrue." These provisions, however, do not prohibit the garnishee from ra...
...385 (1915); Bank of Winter Park v. Resolution Trust Corp.,
633 So.2d 53 (Fla. 5th DCA 1994). See also United Presidential Life Ins. Co. v. King,
361 So.2d 710, 712 (Fla.1978) (noting, "The garnishee may respond to the allegations and assert any defenses available."). Moreover, section
77.07(4) allows the issues raised in a defendant's motion for dissolution to be tried together with the issues raised by the pleadings. As a result, nothing in section
77.07 prohibits American General from filing a motion or answer arguing that the writ was issued in violation of section
222.14....
CopyCited 3 times | Published | District Court, S.D. Florida | 2010 U.S. Dist. LEXIS 49169, 2010 WL 1707649
...It expressly requires the plaintiff to serve the writ of garnishment and the garnishee's answer on the defendant, §
77.055, Fla. Stat. (2000), and permits the defendant to move to dissolve the writ within a specific time period or risk being in default, §
77.07, Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2011 WL 4809107, 2011 Fla. App. LEXIS 16156
...The applicable exemption inures to "a head of family,” not the "head of household.” See § 222.1 1(1)(c), (2)(a), (2)(b). . We note that the circuit court's ruling is internally inconsistent. Upon a finding that Mr. Klepal's wages were exempt from garnishment, the appropriate disposition would be to dissolve the writ. § 77.07, Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2005 WL 53262
..." (emphasis added) This rule, by not expressly mentioning statutes, is inapplicable to procedural deadlines under a special statutory proceeding. [2] Turning to the garnishment statute, a defendant seeking to dissolve a pre-judgment writ may do so by motion. § 77.07(1), Fla. Stat. [3] Under section 77.07(2), Florida Statutes, [4] the deadline to move to dissolve the writ is twenty days from service on the defendant of the garnishee's answer....
...Failure of the defendant or other interested person to timely file and serve the motion to dissolve within such time limitation shall result in the striking of the motion as an unauthorized nullity by the court, and the proceedings shall be in a default posture as to the party involved." § 77.07(2), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1994 Fla. App. LEXIS 12384, 1994 WL 706229
...In our view the prior panel in this case simply concluded that there was a factual issue regarding the identity of the funds in the accounts which could not be resolved as a matter of law, but instead created a factual issue which must be set for trial. See generally § 77.07, Fla....
...aintiff shall serve, by mail, the following documents: a copy of the writ, a copy of the answer, a notice, and a certificate of service. The notice shall advise the recipient that he must move to dissolve the writ within the time period set forth in s. 77.07(2) or be defaulted and that *330 he may have exemptions from the garnishment which must be asserted as a defense....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
allegations in the creditor's petition for the writ, see §
77.07, Fla. Stat. (2001); or (2) on an affidavit of a
CopyCited 1 times | Published | District Court, S.D. Florida | 2009 U.S. Dist. LEXIS 72855, 2009 WL 2567025
...Summary of the Arguments In its summary judgment motion, Dahua makes the following three arguments: (1) Dahua is a separate entity from the Judgment Debtors, (2) Fla. Stat. §
95.11(2)(a)'s five (5) year statute of limitation bars this action, and (3) Fla. Stat. §
77.07(2) and Fla....
...ive years after the entry of the underlying judgment, which was entered on July 31, 2003. [D.E. 54]. Third, Dahua argues that, based on Florida law, the writs of garnishment cannot apply to any debts owed by the Garnishees to Dahua. See Fla. Stat. §§
77.07(2),
77.16(1). Specifically, Fla. Stat. §
77.07(2) provides: "[if] any allegation in plaintiffs motion is not proven to be true, the garnishment shall be dissolved." Dahua argues that since it was not part of the original judgment, and both Garnishees state that they owe money only to Dahua and not the Judgment Debtors, the writs of garnishment should be dissolved....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...order to dissolve the writ of garnishment directed towards its account at Bank,
Villamorey must file a motion to dissolve the writ within twenty days.
Upon receipt of BDT’s notice, Villamorey filed a motion to dissolve BDT’s
writ pursuant to section 77.07(2) of the Florida Statutes (2017).6 In this motion,
Villamorey claimed, inter alia, that: (i) Villamorey does not owe any debt to BDT;
(ii) the legal presumption is that a bank account is owned by the entity named on
the account (i.e...
...77.055, stating that
any allegation in plaintiff’s motion for writ is untrue. On such motion
this issue shall be tried, and if the allegation in plaintiff’s motion
which is denied is not proved to be true, the garnishment shall be
dissolved. . . .
§ 77.07(2), Fla....
...isreads the
relevant statutory construct of Chapter 77. Because Villamorey was identified in
Bank’s answer as having an ownership interest in the Villamorey account at Bank,
Villamorey was not required to file an affidavit before exercising its section
77.07(2) right to move to dissolve the writ....
...Synnex Informacion Techs. Inc.,
720 So. 2d 1167, 1168 (Fla. 4th DCA
1998) (“The statutory right to move to dissolve the writ is granted only to the
defendant and any other person having an ownership interest in the property, as
disclosed by the garnishee’s answer. §
77.07(2)....
...determine the right of property between the claimant and plaintiff
unless a jury is waived.
§
77.16(1), Fla. Stat. (2017).
7
Moreover, irrespective of which statutory procedure is invoked – section
77.07(2) or
77.16(1) – the result is the same: the person, by affirmatively seeking
to dissolve the writ, has assented to the court’s jurisdiction over it and is a party to
the garnishment proceedings....
CopyPublished | Florida 3rd District Court of Appeal | 2013 WL 5813970, 2013 Fla. App. LEXIS 17216
...Once issued, the trial court may consider a request to dissolve the writ under certain circumstances. Depending on the circumstance, the request to dissolve may be made in either of two ways: (1) on motion of the debtor challenging the truth of the allegations in the creditor’s petition for the writ, see §
77.07, Fla. Stat. (2001); or (2) on an affidavit of a third party claiming the garnished property belongs to the third party and not the debt- or. See §
77.16, Fla. Stat. (2001). Either method requires a trial of the issues. §§
77.07,
77.16....
...1364 ,
113 L.Ed.2d 411 (1991)) (“[A] litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.”). Accordingly, the writ of garnishment could not be dissolved under section
77.16. Next, we consider Ms. Ujowundu’s section
77.07 challenge to the veracity of the allegations in the petition for garnishment, namely, that the wages paid by Baptist are her property. On a motion to dissolve, the petitioner must prove the grounds upon which the writ was issued, including the debtor’s ownership of the garnished property. See §
77.07(1); Doug Sears Consulting, Inc....
CopyPublished | Court of Appeals for the Eleventh Circuit
...That section requires the judgment creditor to serve, by mail, “a
copy of the writ, a copy of the [garnishee’s] answer, a notice, and a certificate of
service” on the judgment debtor. The required notice must advise the judgment
debtor that he may move to dissolve the writ under section § 77.07(2) of the
Florida Code, and that he may have exemptions from the garnishment which can
be asserted as defenses....
...garnishment were social security disability benefits and United States Army
retirement benefits, both of which are exempt from garnishment under federal law.
All of the funds attached by the writ of garnishment were subject to exemption
under federal law. Pursuant to section § 77.07 of the Florida Code, a judgment
debtor may, by motion, obtain dissolution of a writ of garnishment by proving that
the attached funds are exempt from garnishment under federal or state law....
CopyPublished | Florida 4th District Court of Appeal | 2007 Fla. App. LEXIS 18737, 2007 WL 4179717
...oes not appear from the face of Sosa’s motion to dissolve that Sosa was attempting to represent C & C. Instead, Sosa raised a claim as to ownership of the funds in the account to be garnished. Though he incorrectly filed the motion pursuant to section
77.07(2), Florida Statutes, it is clear from the substance of the motion that Sosa was attempting to assert a claim under section
77.16, Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 15009, 1998 WL 821787
...em of their right to move to dissolve the writ. §
77.055. The statutory right to move to dissolve the writ is granted only to the defendant and any other person having an ownership interest in the property, as disclosed by the garnishee’s answer. §
77.07(2)....
...uch claim by filing an affidavit under the provisions of section
77.16. Petitioner contends that even though its identity was not disclosed specifically in the garnishee’s answer, its identity was disclosed sufficiently to meet the requirements of §
77.07(2) because the answer indicated the existence of an unidentified third party who might be substituted for the judgment debtor as party plaintiff....
CopyPublished | Florida 4th District Court of Appeal
extend the express terms of the version of section
77.07(5) in effect in 2012 because to do so would
CopyPublished | Florida 3rd District Court of Appeal
allegations in the creditor's petition for the writ, see §
77.07, Fla. Stat. (2001); or (2) on an affidavit of a
CopyPublished | District Court of Appeal of Florida
creditor's petition for the writ, see §
77.07, Fla. Stat. (2001); or (2) on an affidavit
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 703, 1986 Fla. App. LEXIS 6949
...were required to be alleged; and (3) the law did not require an immediate postseizure hearing. In response to this decision, the legislature revised the prejudgment garnishment law in 1983. With respect to the provision for dissolution of the writ, section 77.07(1) now provides: The defendant, by motion, may obtain the dissolution of a writ of garnishment, unless the petitioner proves the grounds upon which the writ was issued and unless, in the case of a prejudgment writ, there is a reasonable...
CopyPublished | District Court of Appeal of Florida
interest in garnished property pursuant to section
77.07(2), Florida Statutes (2019), the burden of proof
CopyPublished | District Court of Appeal of Florida | 1982 Fla. App. LEXIS 19150
...ida Statutes (1979). Having summarily disposed of ITC’s motion to dissolve, the court then granted the motion of R. C. Hasler, Inc. [“Hasler”], the appellee/judgment creditor, for final judgment of garnishment. Based upon our interpretation of § 77.07(1) and (2), we reverse and remand for reconsideration of the motion to dissolve the writ of garnishment....
...(See the summary of Hasler’s motion in the previous paragraph.) In addition, ITC alleged that the sum of $21,968.78 referred to in the Answer of Garnishee was not owned by ITC nor owed to ITC by the Bank. The trial judge did not reach the merits of ITC’s motion. Instead, the Court found that the motion was untimely under § 77.07(2). Despite the facial applicability of subsection (2), the trial judge’s summary dismissal of ITC’s motion with no provision for a hearing on the merits conflicts with subsection (1) of § 77.07....
...y owed by the garnishee. See Brown v. Liberty Loan Corp.,
539 F.2d 1355 (5th Cir. 1976). Despite the limited participation of the judgment debtor in the procedure for procurement of the writ, the debtor is given the right to challenge the writ under §
77.07....
...Subsection (2), on the other hand, places a 20 day time limit after “service of the writ” on a challenge to the judgment creditor’s motion for a writ. If such a challenge is made, subsection (2) requires the disputed allegation to be tried. Hasler argues, in essence, that if a challenge under § 77.07(2) is “untimely,” then a judgment debtor forfeits the right to make a later challenge on the same grounds in a motion to dissolve under § 77.07(1). In addition, Hasler contends, and the trial judge agreed, that the 20 day time period of § 77.07(2) begins to run when the writ is served on the garnishee, not when the defendant receives notice of the writ. ITC contends that § 77.07(2) should not be interpreted to place restrictions on a debtor’s rights under subsection (1), particularly if the 20 day time period is not construed to run from the debtor’s notice of a writ of garnishment....
...Even where the statute requires that some notice be given to the debtor, the stated time for service of notice is not linked to service of the writ on the garnishee; the 20 day time period could end before any notice is given under §
77.06(2). We do not believe that §
77.07(2) was intended to place a time limit on a debtor’s ability to challenge a garnishment proceeding, particularly when the debtor may not have notice of the garnishment. One interpretation of §
77.07(2) argued by ITC is that the 20 day time period runs from service of notice of the writ on the judgment debtor. There are two difficulties with this interpretation. First, the statute only requires that a debtor receive notice in limited circumstances, while the language of §
77.07(2) does not suggest such limited applicability. Second, §
77.07(2) states that the debtor’s motion must be filed within 20 days of “service of the writ.” Under the *218 scheme of Chapter 77 there is no provision for service of the writ upon the judgment debtor; even §
77.06(2) only requires service of notice of the writ....
...ractical application. Any debtor could be foreclosed from using the statute if the judgment creditor never gives notice of the writ or delays giving notice. Therefore, in any case where notice is required (as in this case), the 20 day time period of § 77.07(2) begins to run when the debtor is served with notice of the writ. 2 In all other cases, the statute has no application and the debtor is free to challenge the writ under the provisions of § 77.07(1). Because ITC’s motion under § 77.07(2) was timely, this cause is REVERSED and REMANDED for further proceedings consistent with this opinion....
CopyPublished | Florida 1st District Court of Appeal | 2000 Fla. App. LEXIS 926, 2000 WL 125955
...nishment. ATS posted the required bond in double the amount sought and the writs were issued on April 8,1999. Sears Consulting, on April 7, 1999, filed and served a Motion to Dissolve Prejudgment Writs of Garnishment (Motion to Dissolve) pursuant to section 77.07, Florida Statutes (1997)....
...s Consulting had every opportunity to argue and present evidence to the trial court before its motion was denied. Sears Consulting argued before the trial court, as it does on appeal, that it was not afforded an evidentiary hearing as required under section 77.07; that the burden of proof was on ATS to prove the statutory grounds for issuance of the writs, and that it failed to do so. Section 77.07 requires the trial court to dissolve a writ of garnishment “unless the petitioner proves the grounds upon which the writ was issued and unless, in the case of a prejudgment writ, there is a reasonable probability that the final judgment in the underlying action will be rendered in *670 his or her favor.” Under section 77.07, Sears Consulting was entitled to a full evidentiary hearing and the burden was upon ATS to prove the grounds for issuance of the writs at the hearing on Sears Consulting’s Motion to Dissolve the Prejudgment Writs....
...e, was the affidavit of Carl Carver, and this was woefully insufficient to prove the statutory grounds for issuance of the writs. An affidavit is ordinarily not admissible to prove facts in issue at an evidentiary hearing such as the one required by section 77.07, because it is not subject to cross examination and would improperly shift the burden of proof to the adverse party....
...We reject ATS’s argument that it was entitled to prevail because Sears Consulting had every opportunity to present evidence at the hearing and failed to do so. We also disagree with ATS’s position because it is contrary to the clear language of section 77.07 and would improperly shift the burden of proof to Sears Consulting....
CopyPublished | District Court of Appeal of Florida | 1967 Fla. App. LEXIS 4234
satisfy the judgment described in the affidavit.” Section
77.07, in chapter 77, Fla.Stat., F. S.A., relating
CopyPublished | Court of Appeals for the Eleventh Circuit
...1984).
The plaintiffs, who sought garnishment under § 201(a) of the
TRIA, bore the burden in the dissolution proceeding of establishing
that the López appellants were agencies or instrumentalities of the
FARC. This is the burden-of-proof allocation under both Florida
garnishment law and the TRIA. See Fla. Stat. § 77.07(2) (on a mo-
tion to dissolve a writ of garnishment “if the allegation in the plain-
tiff’s motion which is denied is not proved to be true, the garnish-
ment shall be dissolved”); Kirschenbaum II, 257 F....
CopyPublished | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 6603
...provides that a defendant whose property has been garnisheed may secure the release of the property by posting a bond. The statute goes on to say, “On the approval of the bond the court shall discharge the garnishment and release the property.” F. S. § 77.07, F.S.A. provides for dissolution of garnishment by the court that entered the writ. We feel that either the proceedings outlined in F.S. § 77.07, F.S.A., or the posting of a bond under F.S....
...§
77.24, F.S.A., result in sufficient discharge or dissolution of the writ to allow a later suit for improper garnishment. In the case of Nash v. Walker, Fla.1955,
78 So.2d 685 , the Florida Supreme Court also recognized that a garnishment may be discharged under both F.S. §§
77.07 and
77.24, F.S.A....
CopyPublished | District Court of Appeal of Florida | 1977 Fla. App. LEXIS 15504
...d. This is so, they say, because service of the writ of garnishment, or at least notice thereof, was not made on the Laffertys; which is the fact, as the record reveals. We must affirm but allay their fears. At the outset, however, we point out that Section 77.07(2), Florida Statutes (1974), does provide that: “On Motion by defendant served within 20 days after service of the writ stating that any allegation in plaintiffs motion for the writ is untrue, this issue shall be tried, and if the all...
