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Proposals for Reform of Florida's Provisional Creditor Remedies

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Proposals for Reform of Florida's Provisional Creditor Remedies Florida State University Law Review Volume 6 Issue 4 Article 1 Fall 1978 Proposals for Reform of Florida's Provisional Creditor Remedies John W. Larson Florida State University College of Law Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Constitutional Law Commons, and the Other Law Commons Recommended Citation John W. Larson, Proposals for Reform of Florida's Provisional Creditor Remedies, 6 Fla. St. U. L. Rev. 1233 (1978) . https://ir.law.fsu.edu/lr/vol6/iss4/1 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. FLORIDA STATE UNIVERSITY LAW REVIEW VOLUME 6 FALL 1978 NUMBER 4 PROPOSALS FOR REFORM OF FLORIDA'S PROVISIONAL CREDITOR REMEDIES JOHN W. LARSON TABLE OF CONTENTS I. INTRODUCTION ............. ............. 1235 II. THE NATURE OF PROVISIONAL CREDITOR REMEDIES 1236 A . Generally ................................. 1236 B . A ttachm ent ............................... 1237 C. Garnishment .............................. 1239 D . R eplevin .................................. 1241 III. THE SEARCH FOR A CONSTITUTIONAL STANDARD ..... 1241 A. Sniadach and Its Progeny ................... 1242 1. Sniadach .......................... .... 1242 2. F uentes .................. ............. 1243 3. M itchell ................................ 1246 4. D i-C hem ............................... 1249 5. C arey ............... .................. 1251 B. The Present ConstitutionalStandard .......... 1253 1. The Saving Characteristics ............ 1255 a. Factual Affidavit .................... 1256 b. Ex ParteJudicial Supervision .......... 1258 c. Indemnity Bond ...................... 1259 d. Prompt Postseizure Hearing ........... 1260 e. R ebond ............................. 1262 2. Waiver of Due Process .................. 1262 IV. THE PREJUDGMENT PROCESS IN FLORIDA .......... 1264 A. Replevin (Chapter 78 of the FloridaStatutes) . 1265 B. Attachment (Chapter 76 of the Florida Statutes) 1276 1. Constitutionality ........................ 1276 2. Recommendation ........................ 1279 a. A ffidavit ........................... 1279 b. Judicial Supervision .................. 1281 c. B ond ............................... 1283 d. Motion to Dissolve .................... 1287 e. Rebond ........................... 1290 f. Attachment of Necessities ........... 1290 1234 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 6:1233 C. Garnishment (Chapter 77 of the FloridaStatutes) 1293 1. Constitutionality ............. ........ 1293 2. Recommendation ............. 1294 a. A ffidavit . ............... ........ 1294 b. Judicial Supervision ....... ........ 1295 c. B on d ....... .... .. .. .. ... ........ 1295 d. Motion to Dissolve .......... ........ 1296 e. R ebond .................. ........ 1298 f. Wage Garnishment ......... ........ 1298 V. THE POSTJUDGMENT PROCESS IN FLORIDA ...... 1301 A. The Nature of Postjudgment Process 1301 1. Execution (Chapter 56 of the Florida Stat- utes) ................. 1301 2. Postjudgment Garnishment (Chapter 77 of the Florida Statutes) ....... ... ....I.. .. 130 1 3. Exempt Property .......... ............ 1302 a. Homestead ............ ............130 2 b. Personal Property ....... ... ..... .... 130 3 c. W ages ......... ....... ............ 1.3 04 B. Constitutionality ............. .......... 1305 C. Recommendation .............. ........I. .. 130 9 1. Right to Prefile Exemptions . ......... ... 13 10 2. Notice to Judgment Debtor ... I... .... .... 1312 3. Application for Process ..... ............ 1312 V I. CONCLUSION ...................... ........ ... 13 14 19781 PROVISIONAL CREDITOR REMEDIES 1235 PROPOSALS FOR REFORM OF FLORIDA'S PROVISIONAL CREDITOR REMEDIES* JOHN W. LARSON** I. INTRODUCTION Although virtually impervious for more than a century to the gentle caress of evolutionary change,' heightened judicial sensitivity to procedural fairness and newly aroused passions of consumerism finally burst forth in 1969 to revolutionize the law of debtor-creditor relations. In that year the United States Supreme Court held that the prejudgment garnishment by Family Finance Corporation of Mrs. Sniadach's wages, in the amount of $31.59, without affording her any prior notice or an opportunity to be heard, was a deprivation of property without due process of law in violation of the fourteenth amendment to the United States Constitution.! Sniadach u. Family Finance Corp. precipitated a judicial upheaval casting doubt on the continued validity of all the so-called provisional creditor remedies, 3 as well as the many special creditor lien statutes,' and caused great concern in the personal finance industry. Resolution of the ques- tions Mrs. Sniadach raised has already spawned four more Supreme Court decisions and a plethora of lower court opinions, many of them conflicting.5 Those decisions are analyzed in this article, and an attempt is made to formulate a workable constitutional standard by which to evaluate present creditor remedies. Florida's provisional remedy * This article was prepared by the author for the former Florida Law Revision Council to assist the council in its study of Florida's provisional creditor remedies. The opinions, conclu- sions, and recommendations contained in this article are entirely those of the author and do not necessarily represent or reflect the opinions, conclusions, or recommendations of the Florida Law Revision Council. ** Associate Professor of Law, Florida State University College of Law. A.B. 1958, Univer- sity of Michigan; J.D. 1964, University of Iowa. 1. The present Florida garnishment statute traces its origins directly to Act of Dec. 17, 1845, ch. 43, §§ 1-14, 1845 Fla. Laws 112. The present attachment statute is drawn basically from Act of Feb. 15, 1834, ch. 741, §§ 1-10, 1834 Fla. Laws 11; Act of Feb. 14, 1835, ch. 854, §§ 1-7, 1835 Fla. Laws 313; and Act of Dec. 20, 1859, ch. 998, §§ 1-2, 1859 Fla. Laws 16. 2. Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969). 3. The phrase "provisional creditor remedy" includes a variety of prejudgment statutory remedies, the most common of which are garnishment, attachment, and replevin. The thrust of these procedures is to permit the creditor to seize property belonging to the debtor pending final adjudication of the underlying claim. 4. Statutes granting special lien status to landlords, innkeepers, garagemen, artisans, suppliers, and laborers are common. 5. Carey v. Sugar, 425 U.S. 73 (1976); North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975); Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); Fuentes v. Shevin, 407 U.S. 67 (1972). These cases are considered in section M. A. infra. 1236 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 6:1233 statutes and Florida's procedures for enforcement of final judg- ments are reviewed. Since most of these statutes have been found unconstitutional, remedial legislation is proposed. II. THE NATURE OF PROVISIONAL CREDITOR REMEDIES A. Generally Before turning to the specific requirements of the statutes, it may be useful to discuss the impact of the provisional remedies on the relationship between creditor and debtor.' The norm in our judi- cial process is that a plaintiff is not entitled to any satisfaction on his claim until it is fully adjudicated and final judgment has been rendered by a court. Only then may he invoke the power of the state, through levy of execution, to have the debtor's property seized and sold to satisfy the judgment. The provisional remedies, historically deemed extraordinary, enable the plaintiff to cause the defendant's property to be seized, actually or constructively, and withheld, pending final determination of the plaintiff's underlying claim. Thus, from the very beginning of his action, the plaintiff has some assurance that there will be property available to satisfy a final judgment. Moreover, such property is insulated against disposition or dissipation by the defendant during the course of the litigation. The plaintiff in effect becomes a secured creditor, protected from voluntary actions which the defendant might take affecting his abil- ity to satisfy the plaintiff's judgment. Further, the lien on the debtor's property establishes the plaintiff's priority vis-a-vis the defendant's other creditors with respect to that property. Conse- quently, without any consent by the defendant or any prior judicial determination of the merits of the plaintiff's claim, the plaintiff is immune from the competing claims of both subsequent purchasers and creditors, even though the latter might actually obtain judg- ment first. In addition, in the event of a later bankruptcy of a judgment debtor, the lien of a judgment creditor relates back to the date of attachment or garnishment, thus often serving to defeat the trustee's extraordinary power to avoid judicial liens obtained within four months of bankruptcy.7 One other aspect of the provisional remedies should also be men- 6. References herein to garnishment refer to prejudgment garnishment unless otherwise indicated. Garnishment is also used after judgment to reach indebtedness owed to the judg- ment debtor by third persons, as well as tangible and intangible property owned by the judgment debtor but held in the possession or control of third persons. FLA. STAT. §§ 77.01, .03 (1977). 7. Bankruptcy Act §§ 60, 67a, 11 U.S.C. §§ 96, 107(a) (1976). 19781 PROVISIONAL CREDITOR REMEDIES 1237 tioned.
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