Avoiding Garnishment in Florida

Posted on October 10, 2014

A garnishment is a legal order for collecting a monetary judgment on behalf of a plaintiff from a defendant.  The money can come directly from the defendant, or from a third party, namely a bank.  In Florida, banks receive writs of garnishment every day.  In these instances, the bank normally answers the writ, and the account holder gets a chance to respond.  But, a recent case in the Fourth District Court of Appeal of Florida (“4th DCA”) tackled a question of when the money in the account does not actually belong to the debtor, or defendant, and is instead the debtor’s wife’s money.  In Branch Banking & Trust Co. v. Ark Dev./Oceanview, LLC, 2014 Fla. App. LEXIS 15633 (Fla. 4th DCA 2014), a judgment creditor was not entitled to garnish funds in a bank account titled in the name of the judgment debtor’s wife.

In 2011, BB&T secured a judgment against Joseph Kodsi and several companies associated with him.  His wife, Amy, was not part of the judgment order.  Attempting to collect on the judgment, BB&T served four writs of garnishment on Bank of America, who identified three bank accounts and one safety deposit box, which might be subject to the writ.  One of the three accounts was set-aside in particular, because the name on the account read, “AMY KODSI POA JOSEPH KODSI ITF JOSEPH KODSI.” Shortly after, Amy removed Joseph as power of attorney and as a beneficiary of the account.

Amy then moved for summary judgment against the garnishment of this account and stated that the account was hers alone, which was funded by two rental properties owned by her and Joseph as tenants by the entirety.  BB&T presented no evidence to contradict these assertions, and to the source of the funds or ownership of the account.  Therefore, the lower court dismissed the writ of garnishment against the account.  Moreover, because BB&T was a creditor of only Joseph and not of Amy, they were only entitled to garnish property owned exclusively by Joseph Kodsi.

In Florida, a judgment creditor has the right to garnish under Fla. Stat. § 77.01 (2013):

Any debt due to defendant by a third party or any debt not evidenced by a negotiable instrument that will become due absolutely through the passage of time only to the defendant by a third person, and any tangible or intangible personal property of defendant in possession or control of a third person.

If a third party claims the property belongs to that third party, rather than the judgment debtor, that third party can file an affidavit claiming ownership of the funds.  In the present case, BB&T tried to unsuccessfully argue that the presence of Joseph’s name on the account as power of attorney and beneficiary somehow converted the account into a joint account subject to the writ of garnishment.  The 4th DCA agreed with the trial court, and reasoned that the POA and ITF designations did not give Joseph an ownership interest in the account.  Relying on Ginsberg v. Goldstein, 404 So. 2d 1098 (Fla. 3d DCA 1981), for the purposes of garnishment, a bank deposit prima facie burden belongs to the person whose name it stands, and for garnishment purposes, funds on deposit in a financial institution are presumed to belong to the person or entity named on the account.  Not only did the account documents show that the account belonged to Amy, BB&T did not produce any evidence to rebut this presumption.  It is legally insufficient to assert a fraudulent transfer.  Therefore, BB&T could not garnish money from such account.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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