Credit and collections

• Author: Steven F. Samilow
• Pages: 431-482

CREDIT &

COLLECTIONS

5-1

CHAPTER 5

CREDIT AND COLLECTIONS

I. GENERAL POINTS

§5:01 Undertaking the Representation

§5:02 Def‌iciency Judgments

§5:03 Statute of Limitations

§5:04 Statute of Limitations—Def‌iciencies in Residential Foreclosures

§5:05 Statute of Frauds

§5:06 Debt Collection Information and Investigation

§5:07 Creditor’s Standing

§5:08 Initial Client Meeting—Consumer Debtor

§5:09 Attorney’s Fees

II. DEBT COLLECTION

A. General Points

§5:20 Asset Protection Planning

§5:21 Ethics and Professionalism in Debt Collection

B. Fair Debt Collection Practices Act

§5:30 Abusive, Deceptive and Unfair Practices

§5:31 Creditor-Debtor Communication

§5:32 When a Debtor Disputes a Debt

§5:33 Private Right of Action

§5:34 Damages and Attorney’s Fees in Civil Actions

§5:35 Debt Collectors

§5:36 Attorneys as Debt Collectors

§5:37 Mortgages and Other Security Interests Are Not Debts Under the Act

§5:38 Administrative Enforcement

C. Florida Consumer Collection Practices Act

§5:50 Regulation of Collection Practices

§5:51 Threats, Coercion, Misrepresentation and Harassment

§5:52 FCCPA Applies to Any Person and Not Just to Debt Collectors

§5:53 Civil Remedies Including Damages and Attorney’s Fees

§5:54 Attorneys Are Subject to the Act

§5:55 Enforcement by Off‌ice of Financial Regulation

III. COLLECTING ON A MONEY JUDGMENT

§5:60 General Points

§5:61 Foreign Judgments

§5:62 Out of Country Judgments

CREDIT &

COLLECTIONS

Florida Small-Firm Practice Tools 5-2

A. Real Property

§5:70 A Recorded Final Judgment Creates a Lien Upon Realty

§5:71 Duration and Renewal of the Judgment Lien

§5:72 Renewal of Judgment Lien Process

B. Personal Property

§5:80 Judgment Lien Certif‌icate

§5:81 Priority of Competing Judgments

§5:82 Duration of Judgment Lien

§5:83 Duration of Judgment Lien—Child Support/Tax Obligations

§5:84 Requirements of Original Judgment Lien Certif‌icate

§5:85 Requirements of Second Judgment Lien Certif‌icate

§5:86 Duties of the Department of State

C. Renewal of Judgments

§5:100 General Points

§5:101 Merits of Original Action Are Not Relitigated

§5:102 Waiver of Defenses

§5:103 Ef fect of the Action on the Judgment

IV. COLLECTION REMEDIES

A. Execution of Judgments

1. Obtaining a Writ of Execution

§5:110 General Points

§5:111 Timing for the Issuance of a Writ

§5:112 The Writ

§5:113 Duty of Executing Off‌icer

2. Exempt Property

§5:120 General Points

§5:121 Personal Property

§5:122 Wages

§5:123 Real Property/Homestead Protection Generally

§5:124 Exclusions from Homestead Protection

§5:125 Proceeds from the Sale of the Homestead

§5:126 Scope of the Homestead Protection

§5:127 Homestead Protection Effect on Judgment Liens

§5:128 Waiver

§5:129 Relation to Other Exemptions

3. The Execution Sale

§5:140 General Points

§5:141 Wrongful Execution

§5:142 Secured Creditors and Execution

B. Attachment

§5:150 Purpose and General Use

§5:151 Grounds for Debts That Are Due

§5:152 Grounds for Debts That Are Not Yet Due

§5:153 Grounds for Debts That Are Subject of Foreclosure

§5:154 Procedure

§5:155 Bond

§5:156 The Writ

§5:157 Replevy of Attached Property

§5:158 Dissolution of the Writ

§5:159 Bond for Return of Property

CREDIT &

COLLECTIONS

5-3 Credit and Collections

C. Garnishment

§5:170 When to Use Garnishment After Judgment

§5:171 Applying for a Writ of Garnishment

§5:172 Notice to the Judgment Debtor of Garnishment

§5:173 Service of the Writ on the Garnishee

§5:174 Acceptance of Service by Garnishee

§5:175 Garnishee’s Duties

§5:176 Continuing Writ of Garnishment for Wages

§5:177 Exemptions

§5:178 Waiver of Exemptions

§5:179 Attorney’s Fees

§5:180 Garnishment by a Federal Agency

§5:181 Garnishment Against Interest in Limited Liability Company

§5:182 Prejudgment Garnishment

D. Post-Judgment Discovery

§5:190 Post-Judgment Discovery Takes Place in the Same Suit

§5:191 Types of Discovery

§5:192 Form 1.977 Fact Information Sheet

E. Proceedings Supplementary to Execution

§5:200 General Points

§5:201 Fraudulent Transfers

§5:202 Other Uses of Proceedings Supplementary

§5:203 How to File Proceedings Supplementar y

§5:204 Time for Filing Proceedings Supplementar y

§5:205 Remedies

§5:206 At torney’s Fees

§5:207 Personal Jurisdiction

F. Other Creditor Remedies

§5:220 Fraudulent Conversion to Exempt Asset

§5:221 Uniform Fraudulent Transfer Act

FORMS

Form 5:10 Intake—Debts

Form 5:20 Contract for Employment—Collections/Contingency

Form 5:30 Unfair Debt Collection Practices Letter

Form 5:40 Collections Letter

Form 5:50 Letter to Client Post-Judgment

Form 5:60 Motion for Writ of Garnishment

Form 5:70 Writ of Continuing Garnishment

Form 5:80 Garnishment Notice

Form 5:90 Garnishee’s Answer

Form 5:100 Writ of Execution

Form 5:110 Writ of Execution Letter to Clerk

Form 5:120 Writ of Execution Letter to Sheriff

Form 5:130 Request for Production—Collections

Form 5:140 Interrogatories to Judgment Debtor

Form 5:150 Checklist—Collections

Form 5:160 1.977 Fact Information Sheet

Form 5:170 Motion for Proceedings Supplementary

Form 5:180 Aff‌idavit In Support of Proceedings Supplementary