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Relief from executions

Author johnbsims3
Admin 

#1 - Posted: 27 Dec 2006 16:48 
Trawick, Fla. Prac. & Proc. 27-2 (2005 ed.)

Trawick's Florida Practice And Procedure
Henry P. Trawick, Jr.

Chapter 27. Enforcement Of Judgments

27-2 Relief from executions

Relief from execution levies and sales may be obtained:
(1) under Rules 1.540(b) and 12.540; FN1
(2) by an injunction in an independent action; FN2
(3) by a stay order; FN3
(4) by affidavit and bond in a summary proceeding; FN4
(5) by an execution forthcoming bond. FN5
All of the remedies for relief from execution levies and sales have the same basis, except third party claim proceedings. The grounds for relief are mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation or other misconduct of an adverse party, a void judgment, satisfaction, release or discharge of the judgment and reversal or vacating of the judgment, FN6 another pending action affecting the subject matter, FN7 an exemption or other reason why the property is not subject to levy FN8 or the peculiar nature or value of the property levied on. FN9 An execution sale cannot be set aside for inadequacy of price alone. The sale must be accompanied by fraud, mistake, surprise, misconduct, accident or irregularity on the part of the adverse party, the purchaser at the sale or some other person connected with the sale that results in injustice to the complaining party. FN10
An injunction can be brought by a stranger to the original action if his rights are adversely affected by the execution proceedings. FN11 An injunction may be sought on the basis of another pending action affecting the rights of the parties in the property sought to be levied on or sold or on the peculiar nature or value of the property. Thus an action for an injunction may be the only adequate or available remedy.
The fastest and least expensive remedy is a motion to stay the execution. All it requires is a statement by the judgment debtor of the grounds as good cause, notice and a hearing. The motion must have the caption of the action with the designation as a motion to stay and follows the usual form of motions. It is a speaking motion. A response may be made to the motion to raise issues of fact or questions of law. FN12 The hearing may consist of reviewing the record if the grounds for the motion appear on the face of it. Otherwise, evidence is required. After the hearing an appropriate order must be entered based on any evidence and applicable substantive law.
A summary remedy is afforded when the judgment debtor makes an affidavit that the execution is illegal, stating the grounds, and what part, if any, of the sum or property covered by the execution is due to the judgment creditor and delivers the affidavit to the sheriff with a bond in favor of the judgment creditor in double the value of the property on which a stay is sought, conditioned to pay the execution, or the part claimed to be illegal, and damages for delay. The sheriff must suspend proceedings on the execution and file the affidavit and bond with the clerk. FN13 The affidavit must have the caption of the action on it with the designation as an affidavit. FN14 The bond is approved by the sheriff. A general form of judicial bond has been approved by the Supreme Court in which the condition may be inserted even though the bond is not a judicial bond. The principles applicable to this bond are the same as those applying to judicial bonds. FN15 A response to the affidavit is not required, but may be served. A hearing must be held to determine if the execution is illegal. If the illegality appears on the face of the record, no evidence is needed. If it does not, evidence must be presented to prove the facts alleged in the motion. The court determines the question and either stays the execution, wholly or partly, or enters judgment on the bond, or both. If the execution is stayed or satisfied from the bond, the property is returned to the judgment debtor. Otherwise it is sold under the execution. FN16
A nonparty to the action, called a third party, may make an affidavit that the property belongs to him and deliver the affidavit to the sheriff with a bond in favor of the judgment creditor in double the value of the property, conditioned to deliver the property to the sheriff on demand if it is adjudged to be the property of the judgment debtor and to pay any damages if the claim was interposed for delay. The value of the property is fixed by the sheriff. The sheriff approves the bond and then delivers the property to the claimant. FN17 The proceeding is called a third party claim. The affidavit should have the caption of the action with the designation as an affidavit. FN18 A general form of judicial bond has been approved by the Supreme Court in which the condition may be inserted even though this bond is not a judicial bond. The principles applicable to the bond are the same as those applying to judicial bonds. FN19 When there are several judgment creditors who have effected levies under separate executions, separate third party claim affidavits and bonds are required. FN20 The affidavit must state the names of all claimants. FN21 The sheriff suspends all proceedings under the execution and files the affidavit and bond with the clerk. FN22 No response to the affidavit is required. The statute creates the issue to be tried. That issue is whether the property is liable under the execution as against the claimant's title to the property. FN23 The burden of proof is on the claimant. FN24 The validity of the judgment or execution cannot be attacked. FN25 The issue is tried by a jury unless it is waived. If the verdict is for the judgment creditor and the jury finds that the claim was interposed for delay, the verdict may include damages for delay, not exceeding 20% of the value of the property. The claimant may contest the value of the property fixed by the sheriff by serving a verified denial of the value at least three days before the trial. It should be in the form of an affidavit and have a caption and the appropriate designation as a denial of value. If the denial is served and the verdict is for the judgment creditor, the trier of fact must find the value of each item of property covered by the denial. FN26 A final judgment must be entered in accordance with the verdict. FN27 Execution is issued on the judgment in the same manner as in other actions. If the execution is not paid, it may be satisfied out of the property of the claimant and the surety on the bond unless the property levied on under the original execution is returned to the sheriff on his demand. If the property, or part of it, is returned, the execution in the third party claim is enforced for any delay damages awarded and those for any part of the property not returned. All property returned to the sheriff is sold under the original execution. FN28 The third party claim is not an exclusive remedy. The third party may replevy the property, enjoin the levy or sale or sue for damages on theories of trespass or trover. FN29
When an appellate proceeding is taken and the judgment is stayed by filing the required bond and obtaining a stay order, execution proceedings are also stayed. A discussion of appellate stays and the effect on judgments and executions is beyond the scope of this book.
A judgment debtor may retake possession of property seized under execution by executing a bond in favor of the judgment creditor in double the value of the property retaken as fixed by the sheriff, conditioned that the property will be forthcoming on the day of the sale. FN30 The bond is called an execution forthcoming bond. The bond must be approved by the sheriff. A general form of judicial bond has been approved by the Supreme Court in which the condition can be inserted even though this bond is not a judicial bond. The principles applicable to the bond are the same as those applying to judicial bonds. FN31 If the execution is not paid before the day of the sale and the principal and surety on the bond do not produce the property retaken at that time, the sheriff must file the bond with the clerk. Without further notice judgment is entered on the bond for the value of the property or the amount of the execution, whichever is less. An execution is issued on the new judgment. The liability of the principal on the original judgment is not affected by issuance of the new execution. FN32 When a forthcoming bond is forfeited, property seized under an execution issued pursuant to the judgment on the bond cannot be the subject of another forthcoming bond. FN33 Jurisdiction of a surety for the purpose of entering a judgment on the bond is obtained when the surety executes and delivers the bond to the sheriff. FN34
A number of exemptions from levy under execution are given to judgment debtors. FN35 If a levy is made on real property claimed to be exempt as homestead, the judgment debtor may serve a verified notice on the sheriff describing the homestead real property. Only any remaining part of the property levied on is subject to execution sale. The notices are similar in form to affidavits. They should have the caption of the action with the designation as notices. FN36 If a judgment creditor is dissatisfied with the amount of real property thus exempted, he may ask the sheriff to have the real property surveyed. If the survey discloses that the claimed exemption is proper, the judgment creditor must pay for the survey. The expense is added to the amount of the execution if the claimed exemption is not supported by the survey. Any part of the real property that exceeds the exemption is sold under the execution. FN37 If there is an excess over the exemption, the judgment debtor may select the part he wants to be included in the exemption. FN38
An alternate procedure for exempting homestead can be obtained by a judgment debtor who has a contract to sell or a commitment from a lender for a mortgage on his homestead. If a certified copy of the judgment has been recorded, the homestead claimant can file a notice of homestead containing the statutory requisites. The clerk must mail a copy of the notice to the judgment creditor. The judgment creditor must begin a declaratory judgment action within 45 days after service of the notice, beginning with the date of mailing by the clerk. If he fails to do so, the buyer or lender takes free and clear of the judgment. FN39
An exemption from a levy on personal property is available to the judgment debtor by making a verified inventory, in form like an affidavit, and claiming the alleged exempt items. A copy of the inventory and affidavit must be served on the judgment creditor and the sheriff. The creditor may serve an objection within five days. Otherwise, an order is entered ex parte granting the exemption. If an objection is served, the court determines the issue. The court appoints an appraiser, unless the parties agree otherwise, who appraises the property and files a verified appraisal. FN40 There are other exemptions. FN41

FN1 See 26-8.

FN2 60.01 F.S.A.; Daytona Enterprises, Inc. v. Wagner, 91 So.2d 171 (Fla. 1956).

FN3 Rules 1.550(b) and 12.550.

FN4 56.15 F.S.A.

FN5 56.12 F.S.A.

FN6 Daytona Enterprises, Inc. v. Wagner, 91 So.2d 171 (Fla. 1956); Childs v. Boats, 112 Fla. 282, 152 So. 214 (1933); Higgins v. Driggs, 21 Fla. 103 (1884); McGee v. Ancrum, 33 Fla. 499, 15 So. 231 (1894); Fair v. Tampa Electric Company, 158 Fla. 15, 27 So.2d 514 (1946); Mathews v. Hillyer, 17 Fla. 498 (1880); Viggio v. Wood, 101 So.2d 922 (3 D.C.A. 1958).

FN7 Henderson v. Henderson, 87 Fla. 470, 100 So. 792 (1924).

FN8 Blackshear Manufacturing Company v. McClenny, 75 Fla. 308, 78 So. 269 (1918).

FN9 Davidson v. Floyd, 15 Fla. 667 (1876).

FN10 Arlt v. Buchanan, 190 So.2d 575 (Fla. 1966), revg. 177 So.2d 890.

FN11 American Freehold Land & Mortgage Company of London v. Maxwell, 39 Fla. 489, 22 So. 751 (1897).

FN12 Rules 1.550(b) and 12.550; Valdosta Milling Company v. Garretson, 54 So.2d 196 (Fla. 1951); Wycoff v. Wycoff, 374 So.2d 614 (4 D.C.A. 1979). See 6-2, 9-4 and 9-4.1.

FN13 56.15 F.S.A.

FN14 Rules 1.100(c) and 12.100. See 6-2 and 9-5 for the form.

FN15 Form 1.960. See 6-25.

FN16 Houstoun v. Bradford, 35 Fla. 490, 17 So. 664 (1895).

FN17 56.16 F.S.A.

FN18 See 6-2 and 9-5 for the form.

FN19 Form 1.960. See 6-25.

FN20 Moody v. R. Hoe & Company, 22 Fla. 309 (1886).

FN21 Richardson v. C. W. Smith & Company, 21 Fla. 336 (1885).

FN22 56.17 F.S.A.

FN23 Betton v. Willis, 1 Fla. 226 (1847); 56.18 F.S.A.; Baars v. Creary, 23 Fla. 311, 2 So. 662 (1887).

FN24 Cameron & Barkley Company v. Law-Engle Company, 98 Fla. 920, 124 So. 814 (1929).

FN25 Price v. Sanchez, 8 Fla. 136 (1858).

FN26 56.18 F.S.A.

FN27 56.19 F.S.A.

FN28 56.20 F.S.A.

FN29 Bloch v. Frick, 152 Fla. 554, 12 So.2d 604 (1943); Price v. Sanchez, 8 Fla. 136 (1858); 60.01 F.S.A.

FN30 56.12 F.S.A.

FN31 Form 1.960. See 6-25.

FN32 56.13 F.S.A.; see Marvin Mitchell Studio, Inc. v. Al R. McFadyen Associates Inc., 229 So.2d 608 (2 D.C.A. 1969) in which the court held the property must be returned to the sheriff at the courthouse.

FN33 56.14 F.S.A.

FN34 Archibald v. Donald, 98 Fla. 698, 124 So. 175 (1929). See Rules 1.625 and 12.625.

FN35 Art. X, 4 Fla. Const.; 222.14, 222.18 and 222.25 F.S.A. are examples.

FN36 222.02 F.S.A.; 6-2 and 9-5 for the form.

FN37 222.03, 222.04 F.S.A.

FN38 222.07 F.S.A.

FN39 222.01(2) F.S.A. There is a constitutional question if the judgment creditor does not receive the notice from the clerk. In addition to the declaratory judgment action, the statute purports to permit an action to foreclose the judgment lien. A faster and equally effective remedy is by execution sale. Why would the holder of a judgment lien want to incur the expense of a second lawsuit to enforce his lien? The vice in this statute is the second lawsuit instead of a summary remedy in the action in which the judgment was rendered.

FN40 222.061 F.S.A. See 6-2 and 9-5 for the form.

FN41 55.205(2), (3), (4) F.S.A, for example.

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