A collection agent or law firm that owns a collection account is a creditor. A creditor has several legal means of collecting a debt. But before the creditor can start, the creditor must go to court to receive a judgment. See the Bills.com resource Served Summons and Complaint to learn more about this process.
The court may decide to grant a judgment to the creditor. A judgment is a declaration by a court that the creditor has the legal right to demand a wage garnishment, a levy on the debtor’s bank accounts, and a lien on the debtor’s property. A creditor that is granted a judgment is called a "judgment-creditor." Which of these tools the creditor will use depends on the circumstances. We discuss each of these remedies below.
The most common method used by judgment-creditors to enforce judgments is wage garnishment, in which a judgment creditor would contact the debtor's employer and require the employer to deduct a certain portion of the debtor’s wages each pay period and send the money to the creditor. However, several states, including Texas, Pennsylvania, North Carolina, and South Carolina, do not allow wage garnishment for the enforcement of most judgments. In several other states, such as New Hampshire, wage garnishment is not the "preferred" method of judgment enforcement because, although possible, it is a tedious and time consuming process for creditors.
In most states, creditors are allowed to garnish between 10% and 25% of your wages, with the percentage allowed being determined by each state.
Florida’s Garnishment rules are found in Title VI, Chapter 77. In general, Florida follows the federal rules for the amount of a garnishment, which allows up to 25% of a worker’s wages to be garnished. For exemptions, Florida Title XV, Chapter 222 defines earnings and what is considered exempt. See the Dept. of Labor's Employment Law Guide - Wage Garnishment and the Dept. of the Treasury’s Answers About Garnishments. Municipal and state employees may be garnished.
Generally speaking, 401(K) or other retirement funds are exempt from garnishment. It is advisable to have those funds deposited into a separate bank account if you are concerned about garnishment on those payments.
If you reside in another state, see the Bills.com Wage Garnishment article to learn more.
Levy Bank Accounts
A levy means that the creditor has the right to take whatever money in a debtor’s account and apply the funds to the balance of the judgment. Again, the procedure for levying bank accounts, as well as what amount, if any, a debtor can claim as exempt from the levy, is governed by state law. Many states exempt certain amounts and certain types of funds from bank levies, so a debtor should review his or her state’s laws to find if a bank account can be levied. In some states levy is called attachment or account garnishment. The names may vary but the concept is the same.
In Florida, a levy (called attachment) is allowed under Title XXXIX, Chapter 679.2031. Levy is allowed if the plaintiff possesses a a writ commanding the sheriff to seize and sell as much of a debtor’s property as is necessary to satisfy a creditor’s claim.
If you reside in another state, see the Bills.com Account Levy resource to learn more about the general rules for this remedy.
A lien is an encumbrance — a claim — on a property. For example, if the debtor owns a home, a creditor with a judgment has the right to place a lien on the home, meaning that if the debtor sells or refinance the home, the debtor will be required to pay the judgment out of the proceeds of the sale or refinance. If the amount of the judgment is more than the amount of equity in your home, then the lien may prevent the debtor from selling or refinancing until the debtor can pay off the judgment.
Florida allows a lien for a money judgment. Under Title XL, Chapter 713, mechanics and contractors (and similar laborers and professionals) a have the right to place a lien on a property. This also includes creditors for unsecured debt (credit cards, auto loans, etc.), see Florida law Title XI, Chapter 55.10.
A judgment-creditor may not seize a judgment-debtor’s residence under Florida law.
If you reside in another state, see the Bills.com Liens & How to Resolve Them article to learn more.
Florida Statutes of Limitations
The statute of limitations is governed by Florida Title VIII Limitations, Chapter 95.11. The statute of limitations on consumer issues are as follows:
- Open account (i.e., credit card): 4 years (Florida 95.1(p))
- Written contracts: 5 years
- Real property actions: 7 years
- Foreclosure: 5 years
- Foreign judgments: 5 years
- Domestic judgments: 20 years
Florida foreclosure laws are found Title XL, Chapter 702 to learn more about the rules surrounding foreclosure in this state, including deficiency balances (Chapter 702.06). To learn how to prevent foreclosure in Florida, see the Bills.com resource Florida Mortgage Foreclosure & Short Sale.
Florida Usury Law
See the Bills.com resource Florida Usury Law to learn the maximum interest rate that can be charged a consumer in Florida.
Florida Payday Loan Collection
See the Bills.com resource Payday Loan and the FDCPA to learn how Florida law protects consumers of payday loans.
Consult with a Florida attorney experienced in civil litigation to get precise answers to your questions about liens, levies, and garnishment in Florida.
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