Litigation Strategy 16
Litigation We litigate in all Florida courts, state and federal Our lawsuit generation process is fully automated allowing us to quickly and seamlessly shift from traditional dunning to litigation We use private process servers to serve legal papers as opposed to local Sheriffs allowing us greater control over the manner, mode, and timing of service 17
Determining Which Accounts Should Be Sued In addition to account collectability scoring, we consider the following in determining whether accounts should be litigated: Account Balance Debtor location and availability to be served Cost Versus Collectability – $185 for accounts with balances below $2,500 $310 for accounts with balances of $2,500 to $15,000 $410 for accounts with balance above $15,000 Debtor’s Current Assets – Note, however, that Florida’s numerous exemptions make it difficult to successfully seize assets from judgment debtors 18
Small Claims Procedure (Balance under $5,000) Cases in which the amount in controversy does not exceed $5,000 are administered as small claims and are subject to the Small Claims Rules of Procedure The Clerk of Court issues a summons which includes a pretrial hearing/mediation date Both the debtor/defendant and the attorney for the plaintiff are required to appear at the pretrial hearing/mediation Under Florida’s Small Claims Rules, the judge has the power to order both parties to abide by court imposed repayment schedules 22
County Court (Balance $5,000 or greater) Circuit Court (Balance $15,000 or greater) If the amount in controversy exceeds $5,000 the debtor/defendant is required to file a written response to the plaintiff’s complaint within 20 days of being served with a summons and complaint A debtor’s/defendant’s failure to file a written response enables the plaintiff to seek entry of a default judgment Contested cases are typically resolved with a motion for summary judgment which requires a supporting affidavit from the client/creditor or at trial where a witness for the client/creditor must be available to testify (telephonically in many cases) 23
Counterclaims and Ancillary Litigation Require a written response within 20 days Reviewed by one of the partners to assess the potential complexity of litigation and prospect for quick and amicable resolution Reported to the client/creditor immediately upon receipt Typically billed hourly 25
Post Judgment Collections 26
Judgment Liens on Real Property (Land) Arise when a certified copy of a judgment is recorded in the official records of a county. Liens arise only in those counties in which the judgment is recorded and cause a cloud on the property’s title. Judgment liens are good for 10 years and can be extended for another 10 years Execution is a means by which a judgment against the debtor’s real property may be enforced. Assuming that the phrase “let execution issue” appears in the judgment, an execution order can be issued 10 days after the entry of the final judgment The levy process on real property is initiated by delivering a writ of execution to the Sheriff’s office. A notice of Sheriff’s sale is posted on the property which is subsequently sold at auction to the highest cash bidder Levy costs vary from county to county but typically range from $500 to $1,000 27
Judgment Liens on Personal Property Arise by client/creditor filing a judgment lien certificate with Florida’s Department of State Attach to the debtor’s interest in all personal property subject to execution in the state other than fixtures, money, and negotiable instruments Give the judgment creditor the right to proceed against the property of the debtor through writ of execution, garnishment, or other judicial process Costs vary; typical costs to levy on an automobile range from $600 to $2,500 and are recoverable from the proceeds of the auction/sale We frequently have local Sheriffs seize and sell at auction unencumbered motor vehicles to satisfy judgments 28
Garnishment Allows a creditor to reach the debtor’s personal property residing with third parties Garnishment reaches property that cannot be reached by attachment or execution such as bank funds, wages, and accounts receivable A writ of garnishment is procured by filing a motion with the court The cost to file a writ of garnishment is $187 plus service fees 29
Debtor’s Exemptions Homestead – A debtor’s homestead is constitutionally protected from forced sale The debtor or his family must reside on the property as their permanent place of abode The scope of homestead protection is staggering; Unlike many other states, there is no limitation in Florida on the protected value of the home Head of Household – Wages, earnings, or compensation due for personal labor or services, including traceable wages deposited into a bank account are exempt from garnishment if the debtor provides more than half support for a child, spouse, or other dependent 30
Debtor’s Exemptions (Continued) Tenancy by the Entireties – property, real and personal, held jointly as husband and wife is not subject to creditor’s process unless the judgment is entered against both husband and wife Other Protected Income Social Security benefits Supplemental Security Income benefits Public assistance (welfare) Workers' Compensation Unemployment Compensation Veterans' benefits Retirement or profit-sharing benefits or pension money Life insurance benefits or cash surrender value of life insurance policies or proceeds of annuity contracts Disability income benefits 31
Wagner, Hunt & Kahn, P.A. Providing Professional Debt Collection Services and Legal Representation Since 1980 5233 Coconut Creek Parkway Margate, Florida 33063 954-935-6966 Telephone 800-777-2602 Toll Free 954-935-6975 Fax info@wagnerandhuntlaw.com JeffreyKahn@wagnerandhuntlaw.com 41
Recommend
More recommend
