Probate, trust, guardianship and inheritance litigation
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How to Defeat a Garnishment in Florida

States » Florida » How to Defeat a Garnishment in Florida

Banks in Florida receive writs of garnishments all the time.  The bank answers the writ, and the account holder also gets a chance to respond.  But what if the money in the account does not belong to the debtor, and is instead the debtor’s wife’s money?  

BBT_v_Kodsi, (4th DCA  2014).

A recent decision from a Florida appellate court holds that money in an account, titled in the name of the debtor’s wife, cannot be subject to a writ of garnishment in the absence of evidence that the money in the account came from the debtor’s funds.

The wife opened an account at Bank of America, titled “AMY KODSI POA JOSEPH KODSI ITF JOSEPH KODSI.”  She then removed Joseph as power of attorney holder and beneficiary of the account.   Amy stated that the account was hers alone, and that the money in the account came from two rental properties owned by her and Joseph, as tenants by the entireties. BB&T presented no evidence to contradict Amy’s assertions as to the source of the funds or the ownership of account, so the Court dismissed the writ of garnishment against the account. 

In Florida, a judgment creditor has the right to garnish (Section 77.01, Florida Statutes): 

any debt due to defendant [i.e., the judgment debtor] by a 

third person 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 

the possession or control of a third person.

A judgment creditor may serve a writ of garnishment on a garnishee that holds the funds, such as a bank.  (Section 77.06(1), Florida Statutes).  

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. (Section 77.16(1), Florida Statutes).  

In this case, Amy filed such an affadvit claiming sole ownership.  Apparently, BB&T attempted to 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 garnishment.  

We agree with the trial court that the evidence is uncontradicted that 

Amy is the title holder to the account. The POA and ITF designations did not give Joseph an ownership interest in the account. The signature ard Amy signed when she added the POA and ITF designations indicated the account was still an “individual” account, as opposed to a joint account with survivorship or a tenancy by the entireties. Additionally, the Bank of America deposit agreement and disclosures effective at that time provided, “If more than one person’s name appears in the title of an account without a fiduciary, beneficiary or other designation, then the account is a joint account.” (Emphasis added). Here, there were other designations, meaning it did not become a joint account. Based upon the account documents, Amy was the sole owner of the account.

BB&T attempted to argue that Joseph had some sort of equitable ownership interest in the account.  The Court, however, rejected this argument, relying on well settled principles of garinshment law and civil procedure:

The trial court correctly cited to Ginsberg v. Goldstein, 404 So. 2d 1098 

(Fla. 3d DCA 1981), which held: “For the purposes of garnishment a bank deposit prima facie belongs to the person in whose name it stands . . . .” Id. at 1099 (quoting 38 C.J.S. Garnishment § 80 (1943)). Relying on this language, other district courts have held, “For garnishment purposes, funds on deposit in a financial institution are presumed to belong to the person or entity named on the account.” Green v. Dep’t of Revenue ex rel. Williams, 78 So. 3d 555, 557 (Fla. 5th DCA 2011) (quoting Thomas J.  Konrad & Assocs., Inc. v. McCoy, 705 So. 2d 948 (Fla. 1st DCA 1998)). Not only did the account documents show that the account belonged to Amy, BB&T did not produce any evidence to rebut this presumption.