Representing a debtor in a Florida collection action, in which your client is the head of his or her household, is usually fairly straightforward. Your client resides in a debtor’s haven. In Florida, it is difficult for creditors to reach your client’s assets if she is the head of household. In Florida, there is an exemption from garnishment statute that limits the ability of creditors to garnish the wages of someone who is determined to be a “head of household.” F.S. §222.11 (2012). In order to avoid the effect of this statute, a creditor must obtain from the debtor an explicit waiver.
Florida also frowns upon certain common collection devices used in other states known as “Confessions of Judgment.” If you live in New York, for example, a creditor can have your client sign a Confession of Judgment and, in the event of a default on a loan, can march directly down to the courthouse and have a Final Judgment entered by the clerk. That’s right – – no complaint, no summons, no time to answer, no two page Motion to Dismiss. The creditor gets to go right for the jugular.
The good news is that these “Confessions of Judgment” are unenforceable in Florida. A creditor seeking to obtain a Confession of Judgment must do so through an explicit waiver. Failure to do so is fatal to the creditor’s efforts to have a “Confession of Judgment” entered.
But what about situations in which the debtor’s employer is located outside of the State of Florida? Do the Florida exemptions apply? We are litigating those issues right now in a matter pending before the United States Court of Appeals for the Eleventh Circuit. We believe that Florida residents should be protected from creditor’s process served out of state. Nonetheless, there is ancient authority to the contrary.
Imagine, for the moment, that your client works for Coca Cola driving a truck. Your client resides in Florida. Your client’s wages are paid to her in Florida. Your client’s wages are deposited directly into her Florida bank account. Many years ago your client entered into a loan agreement with a creditor based in California. Because your client was not thinking clearly, she signed a loan agreement containing a “Confession of Judgment” provision. In the normal course, the creditor would seek to domesticate and/or enter a Judgment in the State of Florida. Assume that the creditor, however, decides to be cute.
The creditor domesticates the Judgment by confession in the State of Georgia where Coca Cola has its headquarters. After domesticating the Judgment, the creditor starts the garnishment procedure in Georgia. The Florida Exemption from Garnishment Statute for heads of household, and the prohibition on “Confessions of Judgment,” could provide assistance depending upon the facts and circumstances of the case. However, there are certain things that you should consider, as debtor’s counsel, in connection with future loans that might make your client’s circumstances and the eventual outcome between debtor and creditor more predictable. Consider the following:
- Do not allow your clients to sign a loan agreement if it contains a “Confessions of Judgment” provision. Confessions of Judgment provisions are commonly used throughout the United States. Even for creditors, Confessions of Judgment provisions have certain risks. Essentially, by agreeing to “confess judgment” your client is waiving her due process rights. Waiving constitutional rights is a tricky business. Even creditors should be careful when seeking to enforce these because often these provisions are a recipe for protracted litigation.
- Your client should refuse to sign any document that provides for a waiver of the exemption from garnishment. Ultimately, the primary assets that most people have, particularly consumers, are their wages. Crafty creditors often seek to have their borrowers sign a waiver which waives a consumer’s right to be exempt from garnishment. Such waivers should be avoided at all costs, if possible.
- Negotiate into the loan agreement a provision that Florida law applies. Florida law is debtor friendly. It is sometimes hard for Florida attorneys to understand that the laws of the other forty-nine (49) states may not be. In fact, many states have laws which are creditor friendly. Therefore, rather than falling asleep during contract review, when counsel looks at the “choice of law” provision, this is the time to wake up. Insert a provision into the contract that makes Florida law applicable.
- There is no place like home. Inserting a provision that makes Florida law applicable is extremely helpful. However, it is also helpful to insert a provision into the loan agreement which provides for jurisdiction in the Florida Courts. It is always better to litigate on your own turf, particularly in a collection action. By making jurisdiction in Florida, you virtually guarantee that the local judiciary will recognize such statutes as the Florida Exemption from Garnishment Statute and the prohibition on Confessions of Judgment. Judges in states other than Florida may never have heard of these things. However, you can find comfort in knowing that these issues arise in the State of Florida on a regular basis and will not be foreign to the Florida courts.
These issues are currently being litigated by our firm before the United States Court of Appeals for the Eleventh Circuit. We will keep you posted on the outcome.