CS for SB 592                                    First Engrossed
       
       
       
       
       
       
       
       
       2013592e1
       
    1                        A bill to be entitled                      
    2         An act relating to garnishment; amending s. 77.04,
    3         F.S.; authorizing an employee or agent of a business
    4         entity to answer a writ of garnishment on behalf of
    5         the entity; amending s. 77.041, F.S.; revising “Notice
    6         to Defendant” provided by the clerk of court in a
    7         garnishment proceeding; providing that a defendant in
    8         a garnishment proceeding may provide notice of a
    9         garnishment exemption and request for hearing to the
   10         plaintiff’s or the garnishee’s attorney; extending the
   11         time allowed for the plaintiff or the plaintiff’s
   12         attorney to respond to the defendant’s claim of
   13         exemption and request for hearing; providing response
   14         procedures of the clerk of court and the plaintiff’s
   15         attorney when the plaintiff’s attorney is served with
   16         a notice of garnishment exemption and request for
   17         hearing; requiring the defendant to certify under oath
   18         and penalty of perjury that he or she provided notice
   19         of the garnishment exemption claim and request for
   20         hearing to the plaintiff, the garnishee, or their
   21         respective attorneys in order to obtain a hearing;
   22         repealing s. 222.12, F.S., relating to proceedings for
   23         exemption; providing an effective date.
   24  
   25  Be It Enacted by the Legislature of the State of Florida:
   26  
   27         Section 1. Section 77.04, Florida Statutes, is amended to
   28  read:
   29         77.04 Writ; form.—The writ shall require the garnishee to
   30  serve an answer to it on the plaintiff within 20 days after
   31  service of the writ stating whether the garnishee he or she is
   32  indebted to the defendant at the time of the answer, or was
   33  indebted at the time of service of the writ, plus up to
   34  sufficient time not to exceed 1 business day for the garnishee
   35  to act expeditiously on the writ, or at any time between such
   36  times; and in what sum and what tangible or intangible personal
   37  property of defendant the garnishee has in his or her possession
   38  or control at the time of his or her answer, or had at the time
   39  of the service of the writ, or at any time between such times;
   40  and whether the garnishee knows of any other person indebted to
   41  defendant, or who may have any of the property of defendant in
   42  his or her possession or control. The writ shall state the
   43  amount named in plaintiff’s motion. If the garnishee is a
   44  business entity, an authorized employee or agent of the entity
   45  may execute, file, and serve the answer on behalf of the entity.
   46         Section 2. Subsections (1) and (3) of section 77.041,
   47  Florida Statutes, are amended to read:
   48         77.041 Notice to individual defendant for claim of
   49  exemption from garnishment; procedure for hearing.—
   50         (1) Upon application for a writ of garnishment by a
   51  plaintiff, if the defendant is an individual, the clerk of the
   52  court shall attach to the writ the following “Notice to
   53  Defendant”:
   54  
   55                NOTICE TO DEFENDANT OF RIGHT AGAINST               
   56                    GARNISHMENT OF WAGES, MONEY,                   
   57                         AND OTHER PROPERTY                        
   58  
   59         The Writ of Garnishment delivered to you with this Notice
   60  means that wages, money, and other property belonging to you
   61  have been garnished to pay a court judgment against you.
   62  HOWEVER, YOU MAY BE ABLE TO KEEP OR RECOVER YOUR WAGES, MONEY,
   63  OR PROPERTY. READ THIS NOTICE CAREFULLY.
   64         State and federal laws provide that certain wages, money,
   65  and property, even if deposited in a bank, savings and loan, or
   66  credit union, may not be taken to pay certain types of court
   67  judgments. Such wages, money, and property are exempt from
   68  garnishment. The major exemptions are listed below on the form
   69  for Claim of Exemption and Request for Hearing. This list does
   70  not include all possible exemptions. You should consult a lawyer
   71  for specific advice.
   72         IF AN EXEMPTION FROM GARNISHMENT APPLIES TO YOU AND
   73         YOU WANT TO KEEP YOUR WAGES, MONEY, AND OTHER PROPERTY
   74         FROM BEING GARNISHED, OR TO RECOVER GET BACK ANYTHING
   75         ALREADY TAKEN, YOU MUST COMPLETE A FORM FOR CLAIM OF
   76         EXEMPTION AND REQUEST FOR HEARING AS SET FORTH BELOW
   77         AND HAVE THE FORM NOTARIZED. IF YOU HAVE A VALID
   78         EXEMPTION, YOU MUST FILE THE FORM WITH THE CLERK’S
   79         OFFICE WITHIN 20 DAYS AFTER THE DATE YOU RECEIVE THIS
   80         NOTICE OR YOU MAY LOSE IMPORTANT RIGHTS. YOU MUST ALSO
   81         MAIL OR DELIVER A COPY OF THIS FORM TO THE PLAINTIFF
   82         OR THE PLAINTIFF’S ATTORNEY AND THE GARNISHEE OR THE
   83         GARNISHEE’S ATTORNEY AT THE ADDRESSES LISTED ON THE
   84         WRIT OF GARNISHMENT. NOTE THAT THE FORM REQUIRES YOU
   85         TO COMPLETE A CERTIFICATION THAT YOU MAILED OR HAND
   86         DELIVERED COPIES TO THE PLAINTIFF OR THE PLAINTIFF’S
   87         ATTORNEY AND THE GARNISHEE OR THE GARNISHEE’S
   88         ATTORNEY.
   89         If you request a hearing, it will be held as soon as
   90  possible after your request is received by the court. The
   91  plaintiff or the plaintiff’s attorney must file any objection
   92  within 8 3 business days if you hand delivered to the plaintiff
   93  or the plaintiff’s attorney a copy of the form for Claim of
   94  Exemption and Request for Hearing or, alternatively, 14 8
   95  business days if you mailed a copy of the form for claim and
   96  request to the plaintiff or the plaintiff’s attorney. If the
   97  plaintiff or the plaintiff’s attorney files an objection to your
   98  Claim of Exemption and Request for Hearing, the clerk will
   99  notify you and the other parties of the time and date of the
  100  hearing. You may attend the hearing with or without an attorney.
  101  If the plaintiff or the plaintiff’s attorney fails to file an
  102  objection, no hearing is required, the writ of garnishment will
  103  be dissolved and your wages, money, or property will be
  104  released.
  105         IF YOU HAVE A VALID EXEMPTION, YOU SHOULD FILE THE
  106         FORM FOR CLAIM OF EXEMPTION IMMEDIATELY TO KEEP YOUR
  107         WAGES, MONEY, OR PROPERTY FROM BEING APPLIED TO THE
  108         COURT JUDGMENT. THE CLERK CANNOT GIVE YOU LEGAL
  109         ADVICE. IF YOU NEED LEGAL ASSISTANCE YOU SHOULD SEE A
  110         LAWYER. IF YOU CANNOT AFFORD A PRIVATE LAWYER, LEGAL
  111         SERVICES MAY BE AVAILABLE. CONTACT YOUR LOCAL BAR
  112         ASSOCIATION OR ASK THE CLERK’S OFFICE ABOUT ANY LEGAL
  113         SERVICES PROGRAM IN YOUR AREA.
  114  
  115                       CLAIM OF EXEMPTION AND                      
  116                         REQUEST FOR HEARING                       
  117  
  118  I claim exemptions from garnishment under the following
  119  categories as checked:
  120  ....  1. Head of family wages. (Check either You must check a. or b. below, if applicable.)
  121  ....  a. I provide more than one-half of the support for a child or other dependent and have net earnings of $750 or less per week.
  122  ....  b. I provide more than one-half of the support for a child or other dependent, have net earnings of more than $750 per week, but have not agreed in writing to have my wages garnished.
  123  ....  2. Social Security benefits.                                   
  124  ....  3. Supplemental Security Income benefits.                      
  125  ....  4. Public assistance (welfare).                                
  126  ....  5. Workers’ Compensation.                                      
  127  ....  6. Reemployment assistance or unemployment compensation.       
  128  ....  7. Veterans’ benefits.                                         
  129  ....  8. Retirement or profit-sharing benefits or pension money.     
  130  ....  9. Life insurance benefits or cash surrender value of a life insurance policy or proceeds of annuity contract.
  131  ....  10. Disability income benefits.                                
  132  ....  11. Prepaid College Trust Fund or Medical Savings Account.     
  133  ....  12. Other exemptions as provided by law.....................(explain)
  134  
  135  I request a hearing to decide the validity of my claim. Notice
  136  of the hearing should be given to me at:
  137  
  138  Address: ................................
  139  Telephone number:........................
  140  
  141  I CERTIFY UNDER OATH AND PENALTY OF PERJURY that a copy of this
  142  CLAIM OF EXEMPTION AND REQUEST FOR HEARING has been furnished by
  143  (circle one)United States mail or hand delivery on ...(insert
  144  date)..., to: ...(insert names and addresses of Plaintiff or
  145  Plaintiff’s attorney and of Garnishee or Garnishee’s attorney to
  146  whom this document was furnished)....
  147  
  148  I FURTHER CERTIFY UNDER OATH AND PENALTY OF PERJURY that the
  149  statements made in this request are true to the best of my
  150  knowledge and belief.
  151  
  152  ................................
  153  Defendant’s signature
  154  Date................................
  155  
  156  STATE OF FLORIDA
  157  COUNTY OF
  158  
  159  Sworn and subscribed to before me this ........ day of ...(month
  160  and year)..., by ...(name of person making statement)...
  161  Notary Public/Deputy Clerk
  162  Personally Known ........OR Produced Identification....
  163  Type of Identification Produced....................
  164  
  165         (3) Upon the filing by a defendant of a sworn claim of
  166  exemption and request for hearing, a hearing will be held as
  167  soon as is practicable to determine the validity of the claimed
  168  exemptions. If the plaintiff or the plaintiff’s attorney does
  169  not file a sworn written statement that answers contests the
  170  defendant’s claim of exemption within 8 3 business days after
  171  hand delivering the claim and request or, alternatively, 14 8
  172  business days, if the claim and request were served by mail, no
  173  hearing is required and the clerk must automatically dissolve
  174  the writ and notify the parties of the dissolution by mail.
  175         Section 3. Section 222.12, Florida Statutes, is repealed.
  176         Section 4. This act shall take effect July 1, 2013.