Garnishment is one of the most effective ways for a collections attorney to recoup funds for his or her clients. In the most recent legislative session, the Florida legislature has amended Chapter 77 of the Florida Statutes governing garnishment proceedings. The most notable change is that the amendment repeals Florida Statutes §222.12 which provided the procedure by which a creditor could challenge a claim of exemption as head of his or her household.
Specifically, Florida Statutes §222.12 required the plaintiff challenging a head of household claim of exemption to file an affidavit denying the claim of exemption within 2 business days from receipt of the defendant’s claim of exemption. This provision differed from the process set forth in Florida Statutes §77.041 which provides that the creditor must file a sworn statement contesting the claim of exemption within 3 or 8 business days from receipt of the claim of exemption depending on whether the claim of exemption was hand-delivered or mailed, respectively. Therefore, a creditor challenging a head of household claim of exemption could comply with the garnishment statute but still have the garnishment dissolved if the creditor did not also comply with Florida Statutes §222.12.
To make matters worse, in June of 2011, the Fourth District Court of Appeal held in the case of Caproc Third Avenue, LLC v. Donisi Insurance, Inc., 67 So.3d 312 (Fla. 4th DCA 2011), that the sworn affidavit required under Florida Statutes §222.12 must be signed by the plaintiff in this case and not the plaintiff’s attorney. Prior to that case, it was common practice for a plaintiff’s attorney to file the affidavit, especially since the affidavit was required to be filed within 2 business days of receipt of the claim of exemption. The logistics of obtaining and filing an affidavit from one’s client so quickly can be very difficult for plaintiff’s counsel.
Fortunately, not only does the amendment repeal the requirement for an affidavit signed by the plaintiff within 2 business days, the amendment also extends the deadline for which a plaintiff must file a sworn statement objecting to a claim of exemption and allows a plaintiff or a plaintiff’s attorney to file the statement. The plaintiff or its attorney now has 8 business days instead of 3 if the claim of exemption is hand-delivered by the defendant or 14 business days instead of 8 if mailed by the defendant to file a sworn statement contesting the claim of exemption. The amendment should help facilitate a more efficient use of the garnishment statutes for collections.
