Whoa! A Writ of Execution?

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Whoa! A Writ of Execution?

Don't get caught by surprise

Writ of Execution.

Scary sounding, isn’t it?

Well, imagine learning that there’s a motion for a Writ of Execution filed against you in a Florida court by a judgment holder and the sheriff that’s knocking on your door intends to “execute” it.

What would you do then?

There’s no good answer to that question, unfortunately. Once the sheriff is there with a Writ of Execution, it’s a bit too late.

But what is it?

Well, a judgment holder (here, the creditor or debt collector may have obtained the judgment, but may have sold it to another entity) has been given a Writ of Execution by a Florida court and now has legal authority to have the sheriff remove enough of your personal belongings, including automobiles or other assets you may have in your possession to satisfy the judgment amount. The sheriff will sell your property at public auction to accomplish this. Imagine a box of your underwear being auctioned off to the highest bidder! It is not a pleasant experience, to say the least.

So the real question is: How do you avoid it?

The obvious is to avoid a Final Judgment in the first place.

When lawsuits are filed by creditors or debt collectors, the majority of them get ignored by the debtors and result in Default Final Judgments. And when the debtors fight back, they do so half-heartedly and without the knowledge or resources necessary to beat them. Inevitably, the debtor gets pressured by the creditor’s attorney into an ill-advised, one-sided settlement agreement and payment plan. Short of that, a Final Judgment is the usual end result.

I have written and spoken at length about possible defenses and strategies debtors have in to combat and charge back at debt lawsuits in Florida – and how to use them effectively. But this is outside the scope of the subject. Here we are discussing a scenario where the lawsuit is over, a final judgement entered against the debtor, and the creditor or debt collector is now trying to execute the judgement by way of a Writ of Execution.

Here are two sobering facts about Writs of Execution in Florida:

  • The debtor has no right to notice or court hearing. Just because the creditor or debt collector didn’t let you know about it, is no defense. And the sheriff will hear nothing of it. Neither would the judge, who isn’t there anyway.
  • Once the Sheriff is appears to execute the judgment, the one single possibility to stop it is to be under bankruptcy protection and show adequate proof to the sheriff. Planning or intending to file for bankruptcy is not enough. So if you are caught by surprise with a sheriff at your door, calling the bankruptcy attorney you’ve been speaking with (but not hired) will do you no good. Nor will a sad sob story or “5 hungry children and a crop on the field”.

If there is a judgment against you, there is always the possibility that a Motion for Writ of Execution filed with the court. So periodically checking the docket for such motion is paramount.

But let’s be real here. No one has the desire nor inclination to do this for very long. If you truly want to avoid the bad experience of having the sheriff appear unexpectedly at the door, all options must be explored and action taken. Whether it’s asset protection, settlement or bankruptcy, some decisive and adequate action must be taken. Sitting back and hoping that nothing happens is a sure-fire way of ending up in a situation that is embarrassing, demeaning and – flat-out – horrible.

Now, let’s say that you have learned, one way or another (and, to be sure, it won’t ever be by receiving notice from the court or the judgment holder), that a Motion for a Writ of Execution has been filed against you. Here are the steps you need to take to keep a Florida court from issuing the writ. If you are not able to meet the following necessary elements and complete these steps, frankly, bankruptcy protection may be the only alternative.

  1. Purchase and File a Surety Bond for the amount of the judgment. This requirement ensures the court that your filing is not frivolous, among other things, and protects the creditor or debt collector if it is.
  2. File an Emergency Verified Motion (or Motion with a sworn affidavit). Your motion must claim a recognized defense to the issuance of the writ against you and convince the judge that there is “good cause” to find in your favor. There’s more on this below.
  3. Set the Hearing on an Emergency Basis. This can be a bit tricky. Your Emergency Motion will not be automatically set, nor will the mere filing of the motion stop the issuance of the writ. Speak with the judge’s judicial assistant to learn what steps you need to take to have it heard right away on a emergency basis. Realize that what you perceive to be an emergency may not be thought of as an emergency by anyone else. Be sure to be patient, courteous and friendly when speaking to the assistant. Follow the JA’s instructions carefully and make sure you send a copy of the Emergency Motion and the Notice of Hearing to the attorney for the judgment holder.

The defenses that you assert in your Emergency Motion will be very fact specific and therefore vary from case to case. And to be sure, we are only dealing with instances that occur here in Florida.  However, an example of “good cause” may be found where there has been a transfer of ownership of the asset the judgment holder is looking to seize (or maybe you have never owned the asset). So, for example, if the writ is intended to acquire an automobile that is owned by your significant other and not you, then the judge may find good cause and not issue the writ.

Other examples where a judge may find “good cause” are when you have paid the debt (or satisfied the debt), when there is a counter-claim pending in the lawsuit in which the judgment was rendered, when you intend to file an appeal of the judgment (must be within 30-days of the entering of the judgment), when the statute of limitations has run on the judgment (very fact specific) or when there’s fraud.

Be particularly aware that courts have found that lack of notice or opportunity to be heard (a hearing) is not a defense or grounds for “good cause”. So don’t complain that you were not given a copy of the motion for the writ nor given an opportunity to argue against it with the judge.  Likewise, errors of law (meaning the judge made a legal mistake when he entered the judgment) is also not a defense and won’t be grounds for “good cause”.

If this sounds a bit complicated or futile, it’s because it may very well be. Which leads me to my first and, now, final point. When facing judgment creditors, take action and avoid it in the first place.

When there is a judgment against you, don’t hope that the judgment holder will simply forget about you. They won’t. If they haven’t already, they’ll likely try to garnish your paycheck and bank accounts first. They will try all legal channels to collect on that judgment. If settling the matter and entering into a payment is not an option for you, or if the time to appeal the judgment has passed, or protecting your assets would be futile or illegal, then certainly filing for bankruptcy protection should be explored.

Whatever your situation is, the most prudent thing to do when there’s a judgment against you is to protect yourself as early as possible and avoid losing your property in, what may turn out to be, the most embarrassing and deflating way imaginable. There are attorneys that can help you in these situations. So act quickly and don’t lose sight of what is important: the well being of you and your family.

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