How safe are Head of Household "Wage Only" accounts in Florida?

[Bug]

I am a Florida resident, and recently received notice from a firm working on behalf of OC (hereafter refered to as "CA") to recover on a 5+ year old judgment against me stating that they will be seeking a subpoena in order to obtain copies of payment instruments from the past three months and other account information, etc. from my utility company. Obviously, they want my bank account number, and the next step will be efforts to extract funds.

In the cover letter, it stated that a subpoena would be sought if no written objection was received by CA in a 15 day period. In the attached copy of the Subpoena Duces Tecum Without Deposition to be served on a named utility co. employee. It stated that she has the right to object to the production pursuant to the subpoena, which seemed unusual to me, so I called the named employee to see what their policy is on such matters, and to see if they could or would object on my behalf. During the conversation, she seemed uncomfortable answering my questions, mentioning that it was odd that I was given a "heads up", as such actions are almost always taken without prior knowledge of the debtor. I was told that if I entered a written objection to the utility company, that it would go to Legal, and she would or could give no further information regarding whether it would be honored.

I figure that going to great lengths to prevent the CA from obtaining this information would likely just end in a deposition for me (I've already been twice in the past), and that they'd get the information anyhow. I had planned on closing my current bank account, and opening a new one at another institution as I had been advised (by an attorney) to do in the past, but decided to do a bit of research first because I like the bank I'm currently with and would prefer not to have to change, if possible.

I found that FL Statute 222.11 states that disposable earnings (over $500 per week) of a head of a family may not be attached or garnished unless such person has agreed otherwise in writing, and that when such earnings are credited or deposited in any financial institution, the funds are exempt from attachment or garnishment for 6 months after being received by the financial institution if the funds can be traced and properly identified as earnings. In my situation, HOH's salary is direct deposited as salary, no other funds are deposited into the account, and the funds from each deposit are exhausted well within a six month period of being on deposit.

Does this mean that CA absolutely cannot levy, attach, garnish, or by any other means, extract funds from this account without consent? Would it be wise to send a certified or registered letter to CA asserting that the acct. from which utility payments were drawn is a Wage Only account, and that we do not waive the exemption under FS 222.11 (in order to prevent the potential future headache of CA "freezing" the account, and having to petition to dissolve any levy or writ of garnishment)?

Thanks so much for any input! Apologies for the lengthy post!

[jq26]

Seems clear to me under FL law. They cannot garnish ANY amount from your earnings if you are head of family. That means that you provide support for at least one dependent (more than 1/2 time). So, for 6 months after that "earnings" money goes into your account, it is untouchable. And earnings are defined as wages, salary, commission, and bonuses.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0222/SEC11.HTM&Title=->2001->Ch0222->Section%2011#0222.11

BTW- this varies greatly depending on the state. In my state, we do not have wage garnishment. However, the second it gets deposited in a bank account it is 100% garnishable.

[mcb11902]

A couple things: Are you married? If so, the courts in Florida automatically assume the husband is the HOH. But you can rebut that. If you're single, are you providing more than half the support for someone else (child, elderly parent)? If you're single and only supporting yourself, you can't claim HOH.

You have a right to file an objection to that subpoena; you have to file it with the court. They have to give you the 15 day notice that they're requesting documents from a non-party. Personally, I've never seen a subpoena done to the utility company on a consumer debt. You just take the deposition of the individual and ask for all that information.

The Florida Statutes has a form you can use to claim head of household in the event of a garnishment.

[flacorps]

The "make my day" approach would be to advise the judgment creditor's attorney of all the facts and that they would be in violation of the statute if they pursued account number such-and-such at such-and-such bank and that you would take appropriate legal action against them. You could make it in the form of a sworn affidavit to save them the time and expense of a deposition.

Perhaps you would qualify for legal aid in your area and someone from over there would even help you do it.

[Bug]

BTW- this varies greatly depending on the state. In my state, we do not have wage

garnishment. However, the second it gets deposited in a bank account it is 100%

garnishable.

Thanks for your post, jq! You're definitely right. It is well worth the time it takes to research your state laws. Not doing so can be disasterous in a number of ways. I'm so glad to have found this forum full of knowledgeable posters. It's the best source of current information I've come across (thank you forum owner and posters!!).

Wow.. 100% garnishable post deposit? Yikes! I won't ask which state you live in, but out of curiosity, in states w/ policies such as yours, how would debtors who have no non-exempt assets and cannot afford to make pmts. go about protecting HOH (or any other) wages? Deposit into Delaware banks? Deal only in cash?

[Bug]

A couple things: Are you married? If so, the courts in Florida automatically assume the husband is the HOH. But you can rebut that. If you're single, are you providing more than half the support for someone else (child, elderly parent)? If you're single and only supporting yourself, you can't claim HOH.

Thank you for your input, also, mcb! And yes, I am married. To keep things simple in my post, I just wrote from my husband's perspective. He is HOH, and his salary provides 100% support for myself and our children. The judgment is against each of us (no tenants by entirety potential).

You have a right to file an objection to that subpoena; you have to file it with the court. They have to give you the 15 day notice that they're requesting documents from a non-party. Personally, I've never seen a subpoena done to the utility company on a consumer debt. You just take the deposition of the individual and ask for all that information.

It seemed odd that they went that route, too. The utility co. employee seemed much more surprised at the fact that they let us know about their intent to subpoena our info, rather than them actually do so. The fact that the dollar amount is extremely high (medical and unemployment related) probably plays a large role. Also, the depositions over the years have yielded them no assets to attach. Upon advice from an attorney, each time they obtained checking acct. #s, we ceased using it, opening a new one a week later, just in case. Such things are not what the attorney specializes in, but I still wonder why he didn't tell us about HOH, instead of advising us that HOH wages were exempt until deposited (this is why I posted my question here, to make sure I understand). Perhaps this is a "new tactic" employed to make us feel sufficiently pursued/harassed that we'll throw up our hands, bite the bullet, and agree to make pmts to them that we cannot afford?

The letter we recv'd stated that if there were no objections in 15 days from the date of service by mail, they would then APPLY to the clerk of court for issuance of the subpoena. Notifying us prior to actually petitioning for the subpoena would mean we have a total of at least 30 days to object (15 before subpoena, 15 after), then? Having dealt with these guys for a number of years, I can't imagine there's no "tactic" involved..

We have not, and didn't really intend to file an objection, figuring they'd ultimately get the information regardless, whether it be by the court's upholding the subpoena or by them then deposing us once more if the subpoena of the info didn't come to fruition.

Is there any reason to object that I am not thinking of? The location and scheduling time of the depositions we've had to attend in the past were very inconvenient, so I'd prefer not to "invite" another one. BTW, is there any limit on the frequency or amount of times they can depose us?

The Florida Statutes has a form you can use to claim head of household in the event of a garnishment.

Is the form downloadable over the internet? I've had no luck locating it.. By any chance, would you- or any other reader- please post a link to the download OR tell this newbie how to go about obtaining a copy of the form?

What we'd planned to do was to type up a letter claiming HOH exemption, declaring our acct. Wages Only, etc. and then mailing (certified/return receipt requested) to OC, CA, and Clerk of Courts as soon as possible. Would that suffice, or would the actual form be required?

[flacorps]

The game here might be to get you to incur bank fees and/or have trouble changing banks in rapid succession. Since they have discovered to their chagrin that you change banks immediately after the bank is disclosed to them, and they would have difficulty deposing both of you more than once a year, then forcing a switch and then deposing would put you in a position of closing a bank account shortly after you opened it. That brings problems of its own, including extra fees for closing an account within 6 months of opening it, and potentially problems with Chexsystems flagging you for such a short duration account, making opening the next one more difficult.

If you show up in court, they have the opportunity to have the judge browbeat you to start making payments.

If you don't show up in court, they may have a document they can re-use in order to keep getting up-to-date banking info from the utility ... you'll need to check into what gets actually issued. It may be one-time only, or they may be able to go back and use it again. In any case, it's possible that the utility has the right to charge you for their legal costs in complying, so it's possible that this is a harassment tactic on the part of the attorney. You'll have to ask the utility. Also, it would be good to start making payments that the attorney can safely assume you're making using money orders, which are free at some businesses. And don't buy the money orders using a debit card. If you habitually use a certain place to get money orders, the attorney could subpoena that business.

I think the safest route would be to object, show up in court, not be browbeaten to make any payment arrangements, offer the other side a voided check while one of you is under oath as disclosure of the account, as well as sworn and notarized copies of current versions of post-judgment discovery on the current Florida Supreme Court form for that circumstance; and then of course have minimal $$$ in there to begin with and open a different account the day after, in the name of the same spouse who offered up the voided check and offered up the post-judgment discovery (if both spouses didn't deliver that in open court).

Then of course object that another depo or set of rogs is burdensome if the other side asks for it before a year is up.

It's form 1.977, IIRC.

http://theonlinelawyer.blogspot.com/2006/07/collection-law-post-judgment-discovery.html

[Bug]

The "make my day" approach would be to advise the judgment creditor's attorney of all the facts and that they would be in violation of the statute if they pursued account number such-and-such at such-and-such bank and that you would take appropriate legal action against them. You could make it in the form of a sworn affidavit to save them the time and expense of a deposition.

Perhaps you would qualify for legal aid in your area and someone from over there would even help you do it.

Great idea! We will definitely go that route. It can be done with a notary, right? When you say "all the facts", are you referring to the 222.11 business or including more comprehensive information regarding all assets, etc. (like on a 1.977)?

I wouldn't be at all surprised if you hit the nail on the head with the reason you suggested, and I'm so glad you mentioned it- I probably wouldn't have thought of that. In the past, we have not actually closed out the accounts, but left them with very little or no money in them, and opened new onew. But you're right, in the eyes of Chexsystems such activity may be seen as less than desirable.

I plan to get the affidavit going right away. I imagine it's possible that could be the end of the matter this go round- why would they bother with subpoenaing the utility co. once I've given them the info- and more importantly asserted HOH exemption under 222.11? At least I hope it'll cool their jets. Until I rec'v the return recpt. from delivery of the affidavit, we've already withdrawn almost everything and we'll keep it the balance close to zip, deal in cash, then open another account.

Come to think of it, perhaps keeping the account (after letting it set empty for a couple weeks to make sure the affidavit's been recv'd) would be better? If we changed to a new account, and they somehow got ahold of the new info, couldn't they then levy it, as the affidavit listed another account? Is there a limit to the amount of Wage Only accounts one can have?

Also, I appreciate your advice on how to handle the objection. I hope the affidavit will satisfy them for now and that it doesn't come to appearing in court, but if it does, you've made some great suggestions. We intend to pay our utilities in cash or by money order, and will continue doing so for the foreseeable future- just in case.

[flacorps]

Once they have current account information quite often their game is to check the account by phone on a regular basis, hoping to hit a bonus or IRS refund or some other windfall.

One approach to dealing iwth that is to keep switching banks. That approach invites scrutiny beyond the routine level the attorney's office may usually do.

Another approach is to simply make sure that the account that has been disclosed receives only run-of-the-mill paychecks (which may entail not using direct deposit with your employer so that bonuses don't get direct deposited.

Keep in mind that you could get called in on some occasion and asked about other bank accounts.

Jonathan Alper recently discussed a technique in his blog that involved purchasing pre-loaded Visa debit cards or big-box store gift cards, and he opined that even though names are not attached to the accounts any method that depends on secrecy rather than a legal hedge to preserve assets is a bad one.

Now my take would be just a little different, but it stays generally within his lines. If you have the cards and the discovery asks about them, or an attorney asks about them, you have to tell. Then if the judge issues a turnover order you have to give them up. Lying about it is perjury (though probably it would be handled by contempt order, just as failing to turn them over would be).

But how would you get caught? Alper believes there is some mystical way that could happen, but my conclusions would be they would have only three options: have a private detective follow you, or subpoena the security videos from your nearest big boxes, or trick you into telling them about your gift card use through a phony survey, either on the phone or in person.

Lawyers like to depend on legal solutions because they are selling legal services and because they ethically cannot suggest to anyone that they lie to a court.

I wouldn't suggest lying to a court either. I'm simply setting forth my belief that the amount of effort to detect an undisclosed asset strategy using anonymous cards would be dispoportionate to the funds that could be recovered, even if it was detected. I think it would only make sense if a very wealthy debtor had a whale of a debt--then it could be a way of getting leverage. Otherwise, a run-of-the-mill debtor hiding a few bucks on gift cards isn't going to be worth chasing by extraordinary means.

Keep in mind that gift cards at bankrupt retailers aren't much use and there's no FDIC there to make you whole. Don't buy a gift card from a shaky retailer.