FLORIDA DEBTOR’S RIGHTS

Debtor’s rights are rights guaranteed by Florida law for persons who borrow or owe money on credit. These rights protect debtors from being treated unfairly by creditors. Everyone is a debtor. If you have a car loan, telephone service, a mortgage on your home, credit cards, etc., you are a debtor. If you get behind in your payments you may be sued or contacted by a debt collector or collection agency. If you are sued and the creditor wins the case, a judgment will be entered against you by a judge at the end of the lawsuit. This information can be reported to a credit bureau.  The credit bureau can report this information for seven years in your credit history.  

CREDIT REPORTS

You may obtain a free credit report to see what information has been reported against you by contacting the following websites:

Yahoo.com

Free-credit-report.org – online consumer guide

Annualcreditreport.com – one free yearly report from Equifax, Experian and Transunion

You may search the internet to locate other websites for free credit reports.

If you do not think you owe a debt shown on your credit report, or if some of the information is wrong, you need to contact the credit bureau, in writing, describing the debt or portion of debt that you believe to be wrong. Some examples of disputes of debts are:  You do not owe the debt at all or the amount shown;  The debt has been paid;  You are a victim of identity theft; or  the debt is barred due to statutory time limitations.

If you do not get a response from the credit bureau within 30 days, you should write or call them again.  If you are not satisfied with the credit bureau’s reply, you may contact the creditor directly to correct the information shown in the credit report. You can always try to work out your debt with the creditor.  If you are able to make a payment on your debt, the creditor may be more willing to work something out.  However, if the debt is large and you cannot guarantee to make regular payments, the creditor may not work with you.  Also remember that a creditor may write off a debt at any time.

DENIED CREDIT

There is no guarantee that you will be approved when applying for credit.  Some reasons for being denied are:  not meeting minimum income requirement; you already have too large of a debt balance; not living at your residence or working at your job long enough; or a bad or  incorrect credit report.  If you are denied credit, the creditor must advise why.  The creditor must give you the opportunity to ask for an explanation so long as you ask within 60 days of the denial.

MEDICAL BILLS  

Medical bills may even affect your credit.  Even if you have health insurance there may be a few months between the submission of the bill to the insurance company and their payment of the bill, during which time the creditor may report the unpaid debt to the credit bureau.  This is another reason to check your credit report. frequently. 

If you have unpaid medical bills reported on your credit report, you may either pay the bills, notify the credit bureau of a pending insurance payment, or write a letter to the credit bureau explaining the delay in payment of the bill. How unpaid medical bills affects your credit varies with each creditor.  Some creditors may consider you a high credit risk while others may not put as much importance on the unpaid medical bills.  

COSIGNING ON A LOAN  

Before cosigning on a loan for anyone, including your son or daughter, you may want to consider the effect on your credit if the primary borrower does not pay the debt.  If not paid, the creditor will look to you to pay the debt, including late fees and collection costs.  The creditor may use the same collection methods against you as they would the primary borrower.  This could end up ruining your good credit.  Creditors must give you notice at the time of cosigning the loan explaining all of your obligations as a cosigner.  Be sure you read it thoroughly.  In addition to putting your credit at risk, it may reduce your ability to obtain loans as it raises your outstanding debt balance.  

STUDENT LOANS

If you have a student loan and find you cannot make the payments, you might consider having the payments postponed through forbearance or deferment.  Forbearance is a postponement by which the bank or agency that guaranteed the loan allows you to stop making payments for a certain period of time.  Forbearance applies only to the principal.  The interest will continue to accrue.  Deferment is the postponement of payments for a certain length of time, such as a period of unemployment or for the purpose of going back to school.  You cannot receive deferment if you have defaulted on the loan.  You may also check into loan cancellation with the bank or agency that guaranteed your student loan.  

DEBTOR’S RIGHTS IN A LAWSUIT  

If you are sued for money in Florida , the suit will either be filed in Small Claims Court, County Court or Circuit Court.  Cases in Small Claims Court are for amounts up to $5,000.00.  County Court is for cases with amounts from $5,001.00 to $15,000.00.  Circuit Court cases are for amounts in excess of $15,000.00.  The person bringing the lawsuit is called the “Plaintiff” and the person being sued is called the “Defendant”. 

After a suit is filed, you will be served with a Summons and Complaint.  Service may be either by Deputy Sheriff or by Certified Mail.  Read the Complaint thoroughly so you know what you are being sued for. It is important that you respond to the Complaint within 20 days of your being served by either immediately contacting an attorney who will answer the complaint, or answering the lawsuit yourself.  If the Complaint is not answered within the 20 days, the Plaintiff can have the Clerk of Court enter a Default against you and they can proceed to get a Judgment against you.   

If you do not hire an attorney to represent you, you may wish to do your homework.

If you answer the Complaint, the following is a guide as to what the Answer should include.  This is not legal advice, and you should not rely on it.  

1.  At the top of the Answer, complete the Caption by typing or writing in ink the name and title of the court, the Plaintiff’s name, the Case Number, and your name as the Defendant, as well as any other Defendants.  

2.  Type or write in ink the word ANSWER, which should be centered right below the caption.  

3.  Beginning with the first paragraph of the Plaintiff’s Complaint, start saying what you agree with or disagree with.  In other words, if you agree with a paragraph say:  “I admit paragraph 1.”  Or, if you disagree with a paragraph say:  “I deny paragraph 2”., and then give the reason why you disagree with that paragraph.  Be sure you answer all of the paragraphs in the Complaint.  

4.  If you believe the Plaintiff owes you money, you may add a Counterclaim to your Answer.  If you are going to do this, be sure and type or write in ink the heading COUNTERCLAIM, which should be centered below the answer portion.  Be sure you state in numbered paragraphs what they owe and why.  

5.  At the bottom of the Answer, and Counterclaim if applicable, you must write in the date you sign the Answer, and Counterclaim if applicable, sign your name, and write or type in your address and telephone number.  In addition, write or type a statement saying that you have delivered a copy to the Plaintiff or Plaintiff’s attorney, if any.  

You must file the original Answer with the Clerk of Court in the county where the lawsuit was filed.  Be sure you deliver a copy of your Answer to Plaintiff or Plaintiff’s attorney, if any, immediately after filing the original with the Clerk and keep a copy for your records.  

If you do not answer the Complaint within the 20 day period, and a DEFAULT has not been entered against you by the Clerk of Court, you should immediately file and serve an Answer as explained above.  

After filing your Answer and if you do not settle with the Plaintiff, a trial will be set by the Court.  If the case is filed in Circuit Court, there may be pre-trial procedures or motions that need to be done or filed.  The Court will inform you upon your request for information.  

If you lose the lawsuit, a judgment will be entered against you.  The Plaintiff who has won a judgment is called a “judgment creditor” and the Defendant who has lost and had a judgment entered against him/her is called a “judgment debtor”.  The judgment creditor has ten years to collect on the judgment, and may renew the judgment for one more ten-year period.  

JUDGMENT COLLECTION  

After obtaining a judgment, and in order to find out whether you work, where you keep your money, or what property you own, the judgment creditor may require you to complete a Fact Information Sheet or participate in a discovery in aid of execution.  If you do not supply this information, the judgment creditor can require you to come to court to supply the information.  If you do not appear at the court hearing or refuse to supply the information, you may be subject to contempt of court proceedings.  

The judgment creditor can collect on a judgment by levy, garnishment of bank accounts, or garnishment of wages.  

If a judgment creditor obtains a writ of garnishment or continuing writ of garnishment, he/she must send you a copy of the Writ, 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.  

A judgment creditor may not garnish your wages or your bank accounts without a court order.  

EXEMPT PROPERTY  

There are certain kinds of property that are exempt and cannot be taken by a judgment creditor.  Some of this property is not exempt when the judgment is for child support or taxes.  Some exempt property is as follows:

1.  Welfare, Supplemental Security Income (SSI), Social Security, Disability, Unemployment Compensation, and some pensions and retirement benefits;

2.  Net wages of $154.50 per week, or 75% of your net wages, whichever is more; and in the case of the head of a household, wages up to $750.00 per week;

3.  Your vehicle up to $1,000.00 of its value (being the value of the vehicle less all debts for which the vehicle is collateral);

4.  Personal property up to $1,000.00 value (this can include money held in a bank account);

5.  Equity in a home up to ½ acre of land if located in an incorporated area (city) and up to 160 acres in an unincorporated area (county), which includes a mobile home or modular home so long as you own the land it is located on; and

6.  Professionally prescribed health aids used by you or your dependents.

Exceptions are creditors who have loaned you money on your personal property or vehicle, workers who have worked on your home, or a lender who has loaned you money on your home and secured creditors.  

You may claim your exemptions or exempt property by filing a Claim of Exemption with the court describing the exemption and requesting a hearing before a judge.  You must send a copy of the Claim of Exemption to the judgment creditor or their attorney, if any.  The judgment creditor must then file an affidavit or reply with the court within two days if they wish to challenge your exemption.  The court will set a hearing on the matter and forward notice to you of such hearing.  Contact us here at FHS for these forms.

If your wages or bank accounts are going to be garnished, you will not receive any notice until after the wages have already been withheld or a hold has been placed on your bank accounts.  Therefore, it is important that you complete and file the Claim of Exemption as soon as possible so the court can set a hearing.  However, do not file the Claim of Exemption before your wages are withheld or before a hold is placed on your bank accounts as the court cannot set a hearing prior to garnishment.  

Your spouse or any other person, that is not a defendant along with you and who has an ownership interest in any bank accounts or property, may file an affidavit showing their ownership of the accounts or property and request the court to return the accounts or property to them.  

Property or accounts may lose their exempt status if they are fraudulently transferred to someone else.  

LEVY  

Lands and personal property shall be subject to levy and sale under an Execution issued by the Clerk of Court after judgment is entered by the Court, unless they are determined to be exempt property as described above.

If a judgment has been obtained against you, and in order to protect your homestead from forced sale, or levy, you must designate it as your homestead.  This statement must be signed by you, dated, and recorded in the public records of the county where the homestead property is located.  

If you have a contract to sell your homestead property or if you have a commitment from a lender for a mortgage on your homestead property, you must file a “notice of homestead”.  It would then be up to the judgment lienor or judgment creditor to bring an action for a declaratory judgment to have the constitutional homestead status determined by the court.  The notice of homestead does not apply to judgments or liens for real property taxes, labor, services or materials furnished to repair or improve real property or any liens or judgments for other obligations contracted for house, field, or other labor performed on the real property.  

If any person other than you, who is not a defendant along with you, claims any property levied on, he or she may obtain possession of the property by filing an affidavit with the officer serving the Execution that the property belongs to him or her and by supplying said officer with a bond with surety in favor of plaintiff in double the value of the goods claimed.  

When levy is made upon lands that have not yet been set aside as homestead, the defendant may notify the officer making the levy by written notice under oath that the lands are his or her homestead and giving a description of said land.  This may be done any time before the day of the sale.  

When levy is made against personal property, the defendant may make an inventory of the personal property, designating which personal property is exempt.  This must be done within 15 days after the date of the levy.  Check F. S. 222.061 in your county law library or on the internet at www.flsenate.gov/Statutes/index for details on this procedure.  

The exception to levying on property without a court order is personal property, such as a car, that has been put up as collateral or security for a loan, which may be taken through repossession.  A creditor may repossess your property without going to court first.  However, a creditor may not force his way into your home, your garage, or gated property that is locked to take possession of the property without a court order.  

COLLECTION AGENCIES  

A collection agency or debt collector is any agency or person other than a person directly employed by the creditor or judgment creditor who regularly collects debts owed to others.  Attorneys who collect debts for creditors are also “debt collectors”.  

Debt collectors must follow certain guidelines and debtors should be treated fairly.  Collection agencies and debt collectors are regulated by both state and federal laws.  However, the laws do not eliminate debts that are owed.  

A collection agency or debt collector may contact you by mail, telephone or personal visit so long as it is at reasonable times and at a reasonable place.  They may not contact you at work if they know your employer disapproves.  In addition, they may not contact your employer unless they have written consent from you.  

If they contact you in writing regarding the debt they are attempting to collect, they must provide you with their name and address, the amount of the debt, the name of the creditor they are collecting for, a statement that unless you dispute the debt within 30 days after you receive the notice they assume the debt is correct, and a statement that if you notify the collection agency or debt collector within 30 days of receiving notice that you dispute the debt, the collection agency or debt collector will verify the debt and mail such verification to you.  

If they contact you by telephone, you may insist that they also contact you in writing.  They may contact you by telephone between the hours of 8:00 a.m. and 9:00 p.m.  They cannot speak to you or your spouse more than 3 times in one week.  

If you do not believe you owe the debt, then within 30 days of the first contact by the collection agency or debt collector, you must advise them in writing, by certified mail so you have a record, that you disagree with the entire debt or describe the portion that you disagree with and give the reason why you disagree with it.  If you have previously paid the debt, you need to supply them with a copy of the cancelled check or other proof of payment.  Be sure you include the name of the creditor with whom the debt originated, the number that was assigned by the collection agency or debt collector, and your name and address.  Keep a copy of your letter or written statement for your records.  

As soon as the collection agency or debt collector receives your written statement they must discontinue attempts to collect the debt until they have proof that you owe the debt.  In addition, they must forward a copy of the proof to you.  They may, however, proceed to sue you for the debt.  

Under the Federal Fair Debt Collection Practices Act, you may notify a collection agency or debt collector, in writing, that you want them to cease further communication with you and they can no longer communicate with you except as follows:

            1.  Advise you that they are stopping their effort to collect the debt; or

            2.  Advise you that they intend to take action, such as a lawsuit, against you.  

Your notification in writing should include your name and address; the account number on the statement you received from them; the date; a statement that you are exercising your rights under the Federal Fair Debt Collection Practices Act; and, a statement that you want them to stop calling or writing you, or both.  Mail the original to the collection agency or debt collector, send a copy to the original creditor, and retain a copy for your records.  This will not eliminate the debt or your obligation to pay the debt.  Keep in mind that the collection agency or debt collector may sue you for the debt.  All this statement in writing does is stop the calls and letters from them.  If they contact you after receiving your statement, other than advise you they are stopping to collect the debt or that they intend to take action against you, then they have violated the Federal Fair Debt Collection Practices Act.  You may bring an action against them for money damages and attorney fees.  

In addition to the Federal Fair Debt Collection Practices Act, the Florida Consumer Collection Practices Act prohibits harassment, false or misleading statements and unfair practices by collection agencies and debt collectors.  Some violations of these acts are listed below:

            1.  They threaten to tell your employer or neighbors about the debt;

            2.  Threaten violence against you;

            3.  Threaten to have you arrested;

            4.  Communicate with you or your spouse more than three times a week;

            5.  Harass, intimidate, threaten or embarrass you;

            6.  Imply that documents sent to you are legal documents or government documents;

            7.  Imply that you can be deported; or

            8.  Solicit a postdated check in order to threaten criminal prosecution.  

The Federal Trade Commission is the federal agency that takes complaints and they may be contacted at:  www.ftc.gov or call toll-free 1-877-382-4357.  The Florida agency is the Attorney General’s Office, Tallahassee, Florida.  Their phone number is:  850-414-3300.  

To help you successfully prove that a violation has occurred, you may want to do the following:  Keep all letters and written communications from the collection agency or debt collector to you and from you to them in one location, including envelopes; keep a list of all telephone calls you receive, including the date, time, names of persons with the collection agency or debt collector, and brief description of conversation; and keep a list of all telephone calls they have made to anyone else.  

In most cases, the management of collection agencies will not tolerate unfair practices.  You may wish to first contact the management to discuss the problem with them.  Generally, they will take steps to prevent further violations.

If the collection agency or debt collector violations cause you physical or emotional problems, contact an attorney for possible legal action.  

MILITARY MEMBERS  

The military expects its members to pay their just debts in a proper and timely manner.  Under Department of Defense Directive 1344.9 (DODD 1344.9) a just debt is a financial obligation in which there is no reasonable dispute as to the facts or the law, or one reduced to judgment which conforms to the Soldiers’ and Sailors’ Civil Relief Act, if applicable.  

The military services have no legal authority, except in the case of court ordered alimony or child support, to require military members to pay a private debt or to direct any part of their pay for its satisfaction.  If the debt is a just debt, the military member’s commander may write a letter of reprimand in their permanent record, or other actions such as denial of reenlistment.  However, the commander must make sure there is no bankruptcy on file.  Enforcement of private debts is a matter for civil authorities.  

The debt collector or collection agency may not contact the military member’s commander unless they have a written and signed consent from the military member, a court order permitting contact, or a court judgment against the military member.  

The Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA) was enacted to recognize that military members who incur debts prior to active duty may not be able to afford their loan payments on active duty pay.  The SSCRA limits the legal actions creditors may take when collecting debts that were incurred prior to active duty.  In addition, a military member may have the interest rate reduced to 6% on their debts upon their request.  New debts or loans do not qualify for the reduced interest rate.  The military members must send the following:  copy of military orders confirming their active status and a completed request form for interest rate relief by mail to:  Point Loma Credit Union, Financial Assistance Department, Attn:  Soldiers’ and Sailors’ Review, 9420 Farnham St., San Diego, Ca. 92123, or they may fax it to:  858-495-7140 (Soldiers’ and Sailors’ fax line).  

BANKRUPTCY  

You may consider bankruptcy.  However, filing bankruptcy does not eliminate all debts.  In addition, some of the disadvantages to filing bankruptcy includes the loss of credit for 7 to 10 years and the loss of some possessions.  You should consult with an attorney to learn more about bankruptcy. Read more about the new bankruptcy laws here.

CREDIT REPAIR RESOURCES

We suggest the following resources for credit repair and learning how to deal with existing debt:

http://floridadebtor.com/

http://debtorboards.com/smf/index.php

http://www.fight-back.us/forum/

http://www.myfaircredit.com/

http://www.debt-consolidation-credit-repair-service.com/forums/

http://www.infinitecredit.com/forums/index.php

http://creditforum.org/

http://www.creditboards.com/mambo/

“Salary and Wages”

As defined for Purposes of Florida Statutes § 222.11.

In Brock v. Westport Recovery Corp., 832 So.2d 209 (Fla. Dist. Ct. App. 4th Dist. 2002), the court quashed the continuing writ of garnishment because Appellant’s earnings were not “salary or wages” within the meaning of Florida Statutes Section 77.0305 which refers to Section 222.11 of the Florida Statutes. In determining what classifies as earnings stated, the court said “the relevant inquiry is often whether a person’s employment is a salaried job or is in the nature of running a business. For the wage and salary exemption to apply, the debtor must not only perform personal services to the business, he must also receive regular compensation dictated by the terms of an arms-length employment agreement.” When the debtor determined the amount and timing of compensation, the debtor was not entitled to the exemption. We at FHS disagree, as compensation in the form of commission may very well entail this scenario. See below.

The opinion stated that “[a]n employee has regular earning pursuant to an employment agreement. He or she is paid directly for personal labor or services. By contrast, this Debtor and others similarly situated who run their own businesses, have control over the timing and amount of their compensation. Certainly, the legislature did not intend to exempt all funds a person chooses to draw from a business where the individual has full discretion over what expenses to pay or not pay in order to fund the draw.” The court determined that the services Appellant performed were more in
the nature of a business and not performing a job. As a result, they were not wages.

Since they were not wages, the Appellee was not able to cause a writ of garnishment, which is directed towards “salary or wages.”

Planning

In planning to take advantage of the wage exemption under Florida Statutes Section 222.11, the employer/employee relationship must be clearly established. The relationship can be established by using an employment agreement and ensuring that the employee is paid a wage (at least as frequently as other employees).

Independent Contractors

There has been a split in the Florida courts as to whether the earnings of an independent contractor are protected by Fla. Stat. § 222.11. a. In In re Glickman, 126 B.R. 124 (Bankr. M.D.Fla. 1991) the court found that nothing in the wage statute limits its protection to employees. The court then went on to add that amounts owed to a dentist who was an independent contractor were exempt because it was owed for personal labor and services. In In re Pettit, 224 B.R. 834 (Bankr. M.D.Fla. 1998), the Bankruptcy Court held that commissions and bonuses earned by debtor are exempt earnings pursuant to Fla. Stat. § 222.11 even though the debtor was labeled an independent contractor. The Pettit decision noted that it would not base its decisions solely on whether a debtor is labeled an employee or independent contractor.

Consequently, the court adopted a totality of the circumstances approach to determine whether debtor’s compensation constituted exempt earnings pursuant to Fla. Stat. § 222.11. The court stated the debtor was an independent contractor whose duties were essential to a job and not in the nature of running a business. He received regular compensation dictated by the terms of an arm’s length employment agreement, although such agreement was oral. The company owner had complete discretion as to the timing and the amount of debtor’s compensation and could adjust it if he chose to do so. Accordingly, the court held that, in light of all of the circumstances, debtor’s commission and bonuses were exempt earnings pursuant to Fla. Stat. § 222.11.

In deciding this case, the court did a survey of the case law with respect to said statute both before and after its amendment in 1993. The court noted that most Florida Bankruptcy Courts have held that money due for personal labor or services can only be earned by an employee; consequently, wages paid to an employee are exempt, whereas compensation paid to an independent contractor is not.

The court also noted that in 1993, the Eleventh Circuit Court of Appeals in Schlein v. Mills (In re Schlein), 8 F.3d 745 (11th Cir. 1993), addressed the issue of whether Fla. Stat. § 222.11 exempts compensation of independent contractors. In that case, the debtor conceded he was an independent contractor but argued that the phrase “money due for personal labor or services” was not limited to earnings of employees. The court disagreed and held that “earnings” of an independent contractor are not money due for personal labor or services and were thus not exempt pursuant to Fla. Stat. § 222.11. In October, 1993, the Statute was amended and the term “earnings” was substituted with “money or other thing due to any person… or the personal labor or service of such person,” and the term “earnings” was defined as compensation paid or payable in money of a sum certain for personal services or labor whether denominated as wages, salary, commission or bonus.

The court noted that only two cases have dealt with the effect of the amendment in Schlein: In In re Zamora, 187 B.R. 783 (Bankr. S.D.Fla. 1995) the debtor, a sole practitioner, owned a law practice and a marina. The Zamora court held that cash in bank accounts belonging to debtor’s law practice and marina as well as accounts receivable from his law practice were not exempt earnings pursuant to Fla. Stat. § 222.11. The court pointed out that in addition to performing personal services as a business, the debtor must receive regular compensation dictated by the terms of an arm’s length employment  agreement to perform services that are much like a job. In Zamora, the court found that the debtor was in complete control of the business, the amount of his compensation and terms of his employment.