Defending Against Garnishment

Defending Against Garnishment

Last year, I helped an individual whose wages were being garnished, and I was shocked to see a practice which was considered common. In response to my client’s exemption affidavit the attorney for the creditor signed an affidavit in opposition on behalf of their clients.

wage garnishment property guidingAt first, I was shocked because I knew the affidavit could not have been made upon the personal knowledge of the attorney. So I immediately went to the Florida Statute 222.12. This Statute provides an outline for a party contesting a request for exemption for garnishments.

Interestingly, the creditor must deny the allegations in the debtor’s affidavit within two (2) business days AND more importantly, the facts in the affidavit must be “denied by the party who sued out the process”, not the attorney for said party. Accordingly, I was able to resolve the matter for my client quite quickly.

In the case of Caproc Third Ave, LLC v Donisi Ins. Co., 67 So. 3rd 312, the Florida Fourth District Court of Appeal read the same statute very strictly. They stated that the “statute is clear and unambiguous.”  Accordingly, collection attorneys can no longer sign the affidavits for the clients.

I guess it will only be a matter of time before the legislature is lobbied by the debt collection industry. Obviously, they will be seeking either a larger time frame to respond or authority for the attorney to sign the affidavit on behalf of their client.

I will keep an eye out for this!

DELLUTRI LAW GROUP
CARMEN DELLUTRI, ESQ.
KMarshall@DellutriLawGroup.com
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Phone: 239.939.0900
Fax: 239.939.0588
1436 Royal Palm Square Boulevard
Fort Myers, Florida 33919

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Posted on January 29, 2014, in Legal and tagged , , , , , , , , , , , , . Bookmark the permalink. 1 Comment.

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