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PROTECTING YOUR
INCOME AND PROPERTY FROM CREDITORS
You can't go to jail for
failing to pay a debt or a judgment. If you do not pay a debt or if a
judgment is entered against you, this information can be reported to the
credit bureau and made a part of your credit history. The credit bureau
can report this information for seven years in your credit history. If
a judgment is entered against you, you are caled a judgment debtor.
A judgment is an order entered by a judge at the end of a lawsuit. A creditor
who obtains a judgment against you is called a judgment creditor. A judgment
creditor can require you to attend a deposition and give information about
your income and assets. The Court can require you to give written information
or testimony about your income, assets, property, employer and social
security number. If a judgment is entered against you by a court, your
wages or bank account may be taken from you to pay the jugement. This
is called garnishment and attachment.
The garnishment law allows the judgment creditor to obtain a continuing
writ of garnishment which orders your employer to deduct money from your
periodic wages until you have paid of the judgment. Through a process
called execution a creditor can collect money owen under a judgment. The
judgment creditor pays a bond to the local sheriff to seize personal property
owned by a judgment debtor so that it can be auctioned and the proceeds
applied to pay the judgment.
YOUR HOME
If you own the home you live in, your home is protected from all creditors
except those holding a mortgage or lien on your residence. You can exempt
or protect your home and up to one-half (á) acre of land from any forced
sale if you live in an incorporated area. This also applies to mobile
homes. If you live in an unincorporated area, you can protect up to 160
acres as homestead property.
Under most circumstances, a lien cannot be placed on your home for a debt.
However, creditors who loan you money to buy, improve, or repair your
home may put a lien on your home.
To protect your home, an affidavit describing your home and claiming it
as your homestead must be filed with the court. This is different from
the homestead tax form you file with the county property apraiser every
year.
YOUR PERSONAL PROPERTY
The Florida Constitution gives you the right to exempt up to $1,000 in
personal propety from confiscation by a creditor. Unless the judgment
creditor haas a lien or security interest in this property, this constitutional
exemption allows you to protect up to $1,000 worth of your property from
execution or attachment. This $1,000 can include wages and money held
in a bank account. If you own more than $1,000 worth of personal property,
you can choose which property to protect. If the judgment
is only against you and not your spouse, your spouse is entitled to protect
his or her interest in the property. Property that is held by a husband
and wife as tenants by the entireties cannot be divided and thus is not
subject to the claims of creditors or the husband or wife individually.
The judgment debtor and/or debtor's spouse must file an affidavit with
the Court and Sheriff to obtain the exemption and protect the property
from the judgment creditor.
YOUR WAGES
Wages of the head of a family are exempt from garnishment unless the person's
net wages are more than $500 per week and the person has agreed in writing
to allow wages to be taken to pay the debt. A head of family includes
all persons who reside in Florida and who provide more than one-half of
the support for a child or other dependent. Wages in a bank account that
belong to a head of family retain their protection from being seized for
six months even if the wages are mixed with money from other sources.
If a head of family has not agreed in writing to allow the garnishment
or attachment of wages, all the wages are exempt. You must file an affidavit
with the Court to declare your head of family status and protect your
wages from being taken.
Persons who do not qualify as head of family will still have the protection
of federal law which limits the amount of wages that can be garnished.
If you take home less than $127.50 per week, all of your wages are exempt.
Otherwise, a judgment creditor can obtain 25% of your net wages under
a continuing writ of garnishment until the judgment is paid in full.
YOUR VEHICLE
Your interest in a vehicle is exempt up to $1,000 of its value. This means
that your vehicle cannot be taken to satisy a judgment unles the value
of the car, less all debts for which the vehicle is collateral, is greater
than $1,000. If a judgment creditor or Sheriff takes your vehicle under
an executio and its value to you is $1,000 or less, you can apply to the
Court for recognition of your exemption and request the return of your
vehicle. Your affidavit of exemption should be filed with the Court and
Sheriff.
OTHER PROPERTY AND INCOME
All professionally prescribed health aids used by you or your dependents
are exempt from being taken by creditors. Other types of income, including
Social Security benefits, workers compensation, Unemployment benefits,
disability benefits, Veteran's benefits and retirement benefits are exempt
from garnishment.
PROCEDURE FOR CLAIMING
YOUR EXEMPTIONS
You may claim your exemptions by filing an affidavit with the Court describing
the exemption and your claim to it. Your affidavit must also be sent to
the judgment creditor and any attorney for the judgment creditor. The
judgment creditor must then file an affidavit with the Court within two
(2) days to challenge your exemption. If the judgment creditor doesn't
object by filing an affidavit, you can ask the Court for a hearing to
stop the garnishment or execution and have your exempt wages or property
returned to you. Notice of the hearing must be given to the judgment creditor.
Under the Florida law, if your wages or bank account are going to be garnished,
you will not receive any notice until after the wages have already been
withheld or a hold placed on your bank account. The judgment creditor
must send you a copy of the writ of garnishment, a copy of the Answer
filed by your employer or bank and a notice telling you about your right
to request that the Court stop the garnishment or execution.
Your spouse or any other person who has an ownership interest in the property
may file an affidavit showing the right of ownership and requesting the
Court to return the property. The judgment creditor may contest the claim
of exemption and request a hearing.
Transfers of property that are fraudulent or are made solely to keep the
property from creditors may cause the property to lose its exempt status.
If you need assistance with establishing your exemptions to protect your
income or property, please contact your local legal services or Legal
Aid office or a private attorney. Forms and instructions for asserting
your exemptions are available FREE of charge from your local legal services
or Legal Aid office.
Jacksonville
Area Legal Aid, Inc.
126 W. Adams Street
Jacksonville, Fl 32202
(904) 356-8371
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