Under Florida Statute, Section 319.22(a)1, a motor vehicle or mobile home owned by two or more persons with an “or” designation is considered to be owned in Joint Tenancy or a Tenancy by Commons. If property is owned in Joint Tenancy, then each person has ownership over all of the property. Either A or B may sell the property. A Creditor of either A or B may attach or garnish the property. If property is owned by A and B, with an “and” designation, and Read More +
Although property held by husband and wife as Tenants by the Entirety is considered part of the bankruptcy estate, if a debtor files Bankruptcy, Section 522 of the Bankruptcy Code allows the Debtor to claim certain Exemptions. If an Asset is Exempt, then it is exempt or protected from seizure by the Bankruptcy Trustee or Creditors. Section 522(d) of the Bankruptcy Code lists the Federal Exemptions, but each State, under Section 522 of the Bankruptcy Code, can opt-out of the Federal Exemptions and elect to Read More +
Section 541 of the Bankruptcy Code states that the Debtor’s Estate includes all legal and equitable interests of the Debtor as of the commencement of the case. Commencement of the case means the filing of the Bankruptcy. Most Courts hold that property held in Tenancy by the Entireties is either a legal or equitable interest in property and therefore, part of the debtor’s bankruptcy estate.
Under Florida Law, although property owned by husband and wife in Tenancy by the Entireties, is exempt from attachment or garnishment by one of the spouse’s creditors, if the husband and wife are jointly indebted to a Creditor, that Creditor may attach or garnish such property.
The Florida Supreme Court has held that any property jointly owned by husband and wife is presumed to be held in Tenancy by the Entireties.
In Florida, property held jointly by a Husband and Wife, is recognized as being held in Tenancy by the Entireties, provided several “unities” are satisfied. In order for property owned by a husband and wife to be recognized as being held in Tenancy by the Entireties, there must be: Joint ownership and control; Identical interest in the property; The interest must have originated in the same instrument; The interest must have commenced simultaneously; The parties must have been married at the time they acquired Read More +
In the State of Florida, a Creditor cannot Garnish the Earnings of a Head Of Family, who is a natural person who provides more than one-half of the support of a child or other dependent, unless such Head of Family (otherwise known as the head of household), agrees in writing to such Garnishment. Section 222.11 of the Florida Statutes also prohibits the Garnishment of the bank account of a Head Of Family, up until six months after such Earnings were first received. Florida Law also Read More +
Florida Law prohibits the Garnishment of the bank account of a Head Of Family, for up to six months after such Earnings are received by the Head Of Family. If the Creditor does not follow certain procedural requirements, the Garnishee can seek to have the Garnishment dissolved on procedural grounds (in addition to the grounds that the Garnishee is Head Of Family). Cullen, III v. Marsh, a Florida Case that addressed Sanctions against a Creditor for not following the proper procedural requirements for Garnishment, the Read More +
If you file a Claim of Exemption, as the Head of Family in the State of Florida, to stop the Garnishment of your Earnings or Wages, the Creditor must file a Response or Objection to the Claim of Exemption within eight days if the notice of Claim of Exemption is hand delivered. If such notice is furnished by mail, the Creditor has up to 14 days to file a Response. If the Creditor does not file a Response within the prescribed period of time, then Read More +
In the State of Florida, the Earnings of the Head Of Family may not lawfully be Garnished by a Creditor, unless such person consents in writing to such Garnishment. Even if a Debtor is not a Head Of Family, Federal Law has some restrictions on the amount that a Creditor may Garnish. Under Federal Law, a Creditor cannot Garnish more than 25% of a Debtor’s net wages OR take home pay representing more than thirty times the federal minimum wage, whichever is less.