COLLECTING ON A JUDGMENT

Managers often feel that they can sue and immediately collect the money owed by a former resident, who in this article we will refer to as the “debtor”. Unfortunately, this is often legally impossible, or if legally possible, so difficult as to be completely unrealistic. Florida has a reputation as a “debtor” state. This reputation is based mostly on Florida’s generous “homestead exemption”, which often fully exempts a person’s home and real estate that are his residence from collection efforts. However, even for those debtors that don’t own a home, there are numerous other protections.

The initial question is how much time and effort is the manager willing to expend to pursue someone who may currently have nothing to satisfy a judgment. The debtor may be what is often called “judgment proof”, which means that although the debtor may have property, it may not be reachable to satisfy a judgment. The debtor may someday need to satisfy the judgment, particularly if he wishes to buy a home, but how much time and money will the manager expend now for a mere future possibility?

Locating and Serving the Debtor

Before we get to the protections afforded debtors in Florida, we should discuss some practical obstacles to suing a former resident. The first hurdle that an manager faces is locating the debtor, and this can be a big hurdle with some former residents, who will seemingly disappear. If the debtor is located, the next hurdle is serving the debtor. An manager cannot obtain a money judgment against a debtor unless he has obtained “personal service” on that debtor. This means that the debtor has to be served with the lawsuit paperwork (“the summons and complaint”) personally. This is unlike an eviction action. Managers may recall that in an eviction action, the summons and complaint can be posted on the resident’s door if he wasn’t home. This type of notice to the resident is only valid to regain possession of the rental. It cannot be used to obtain a money judgment.

After the manager files the lawsuit, usually in the county where the rental was located, the sheriff must serve the debtor with the summons/complaint. If the debtor has moved to another county, the summons and complaint is forwarded to that county’s sheriff. If the debtor has moved to another state, the summons and complaint must be forwarded to that jurisdiction for personal service. While the sheriffs in Florida and other states will do their jobs, they will not make extraordinary efforts to personally serve the debtor. The manager may have to hire a private process server, which will be an additional expense.

Risk of a Counterclaim

Once the debtor is properly served, a manager with a valid claim may find that the debtor files a counterclaim. The counterclaim may be valid, but all too often it is jumble of anything that the debtor can dream up. Former residents/debtors, who never criticized maintenance, complained about repairs, or brought an issue to the manager’s attention, now file a counterclaim for shoddy maintenance, damaged personal property, lack of repairs and issues like mold, roaches, rats and anything else that comes to their minds. The debtor will bring his family and friends to testify for him. The manager must now assemble his records and request maintenance and repair personnel accompany him to court to testify. There is always a risk that the manager will not have adequate records or that repair personnel will not be available to testify. If the debtor has an attorney, the manager’s financial risk multiplies, since the prevailing party will be entitled to court costs and attorney’s fees.

Locating the Assets

If the debtor can be located and served, and a counterclaim is avoided or overcome, obtaining the judgment is only half the battle. The next hurdle is locating any assets. Florida law has procedures to assist in locating assets. The debtor can be required to list his assets or can be examined to locate assets. However, the process can be a time consuming exercise in futility, as the manager seeks to drag the information out of an uncooperative and perhaps deceptive debtor.

Collection Costs

Finally, the manager locates assets and wants to collect on the judgment. A point to consider is that legal actions to aid in collection, such as levy, execution or garnishment, come with their own set of filing fees to be paid by the manager.

Exemptions

Even after locating the assets, filing the appropriate collection action and paying the filing fees, the manager may not be able to obtain the assets because they are exempt. Federal and Florida law establish what are known as “exemptions” to protect certain property of debtors from creditors, such as the previously referenced homestead exemption.

There are a host of federal or Florida exemptions for particular items of income that flow from government programs, some as obscure as the benefits for surviving spouses of lighthouse personnel. Some of the more common federal and Florida government programs which are exempt include: unemployment compensation, social security, public assistance, veterans and disability income benefits, retirement benefits, and medical savings, college and funeral accounts. Additionally, some large industries have prevailed upon the legislature to exempt their products, such as life insurance proceeds and the cash surrender value of life insurance and annuities. The Florida legislature has exempted alimony, child support and separate maintenance payments, $1,000 equity in a motor vehicle at used car prices, and property held jointly in the name of husband and wife, when only one spouse is the debtor. Finally, Florida exempts $1,000 of a debtor’s personal property, including cash or bank accounts. A thousand dollars can cover a lot of property when it is valued as used property. Note that these exemptions are per person. So $2,000 total could be claimed by two former residents/debtors still living together.

If the debtor is employed, than Florida law provides a process called “garnishment” by which his wages may be taken. However, exemptions apply here too. The wages of a head of a family are completely exempt. “Head of a family” is much broader than a working parent. Any person providing more than half the support for a child or other dependent qualifies as the head of a family. If the debtor isn’t the head of a family, only a percentage of his after tax wages can still be taken (“garnished”).

The Debtor’s Business

If the debtor is operating a business other than a sole proprietorship, a judgment against the debtor may not lead to successful collection against the business. If the debtor has followed the proper procedures, such entities as corporations, partnerships, limited partnerships, limited liability companies and others, are considered separate and distinct entities from the debtor. A judgment against the debtor is not usually collectible against the debtor’s separate business entity. Legal ownership may even have been placed in a relative or friend’s name, although the debtor may be running the business.

Bankruptcy

Of course, the last resort of a debtor is declaring bankruptcy. A bankruptcy filing and discharge will prevent collection of the debt, so even the future possibility of collecting on a judgment is lost.

Collection Abuse Laws

A final word is that the manager should be aware that there are laws that address certain abuses in debt collection. While these laws mainly deal with professional debt collectors, it is worth noting that Florida’s Consumer Collection Practices Act has provisions that are applicable to anyone attempting to collect a debt. The penalties and potential attorney’s fee liability for violating this statute can quickly match or exceed the amount being sought.

Suing and collecting on a judgment are not for the faint of heart, those unwilling to traverse the red tape, or anyone seeking a quick resolution. The practical obstacles of locating and serving the debtor are often enough to justify turning the account over to a reputable collection agency. While a persistent manager may eventually reach the promised land of a recovery on a debt, it may be best left to established collection agencies or attorneys specializing in this area. Note that an added advantage of a collection agency is that, unlike a private manager, a qualified collection agency is able to report the debt to credit reporting agencies, like Experian, TransUnion or Equifax. However, collection agencies and collection attorneys will often retain a significant percentage of any monies collected as part of their agreements with managers, in addition to flat fees often charged for collection efforts, even if no money is collected.