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Post-Judgment Collection – The Recovery Efforts Have Only Just Begun

One of the most common discussions that trial lawyers have with clients or prospective clients involves the best case scenario for the individual if they succeed at trial.

For example, after months and typically, years of legal battles inside and outside the courtroom, you are finally successful at trial and awarded a Judgment against the opposing party. Typically, after a few minutes of reflection, clients make a common and well-based inquiry of “now what?”

Unfortunately, the all-too-often answer is post-judgment collection. Typically, there is not a pot of gold waiting for the prevailing party at the conclusion of trial. Instead, they are awarded a Judgment against the opposing party, which is a court-issued document that resolves the issues in the case and determines the rights and liabilities of the parties. Contrary to public opinion, the prevailing party must now collect on this judgment, which usually includes additional time and expense.

Below are a few ways to secure your judgment and pursue collection.

One easy and relatively cheap way to secure your Judgment (not collecting money) is to assert a lien against the judgment debtor’s real property. Section 55.10 of the Florida Statutes provides that when a certified copy of the Judgment is recorded in a county’s official records, the judgment becomes a lien against any real property owned by the judgment debtor in that county. The judgment is effective for 10 years from the date of recording.

The lien against the real property may be extended for an additional 10-year period by (a) re-recording a certified copy of the judgment prior to the expiration of the lien and (b) simultaneously recording an affidavit with the judgment creditors current address “prior to expiration of the lien” (within the initial 10 year period). However, the lien may not last beyond 20 years from the date of entry of the original judgment.

Another cheap method to secure your Judgment (not collecting money) is to put a lien against the judgment debtor’s personal property. Section 55.202(2) of the Florida Statutes. This is accomplished by filing a judgment lien certificate with the Florida Department of State. The judgment lien may be filed with the State after the Judgment has become final, usually 10 days after entry of the Judgment if there is no appeal or motion to rehear scheduled. The judgment lien certificate creates a statewide lien on the debtor’s personal property, rather than a countywide lien on real property, as discussed previously.

A properly-filed judgment lien is valid against the debtor’s non-exempt personal property (not including fixtures, money, negotiable instruments (promissory notes), or mortgages) for 5 years after filing. Section 55.204(1) of the Florida Statutes. However, a judgment creditor may acquire a second lien for an additional five (5) years by filing a new judgment lien certificate at any time within six (6) months before or six (6) months after the initial five (5) year period has run.

One way to obtain money from a judgment debtor is to seek a charging lien against their interest in an entity. For purposes of this article, we will discuss a charging order sought against their interest in a Florida Limited Liability Company (“LLC”). A member interest in an LLC is considered personal property. Section 605.0501 of the Florida Statutes. The charging order must be obtained through the Court System where you obtained the Judgment. If obtained, the charging order constitutes a lien on the debtor’s transferrable interest, which entitles the judgment creditor to receive any distribution that the judgment debtor may have been entitled to receive from the LLC.

Another way to execute upon your Judgment is through a Writ of Execution and Levy. Again, this must be accomplished through the Court System where you obtained the Judgment. If the judgment debtor owns non-exempt real or tangible personal property, the creditor may execute against it and instruct the local Sheriff’s Office to levy on and sell that property to apply the proceeds against the judgment.

Post-Judgment collection efforts can be very complicated and require specific procedures to be valid and enforceable. We suggest that you seek the assistance of legal counsel to assist you with these efforts. Please feel free to browse the attorney profile page on the website for a Knott Ebelini Hart attorney who can assist you with these collection efforts.

October 17, 2016

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