Patino et al v. Wolfson et al

Filing 91

ORDER denying without prejudice 90 Motion for Judgment in Garnishment. Signed by Magistrate Judge John J. O'Sullivan on 12/18/2013. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-23726-CIV-HUCK/O'SULLIVAN
VANESSA PATINO, et al.,
Plaintiffs,
vs.
EL REY DEL CHIVITO CORP., a
Florida corporation and
ARON WOLFSON, individually,
Defendants,
vs.
BANCO POPULAR NORTH AMERICA,
a foreign for profit corporation d/b/a
“Popular Community Bank”
Garnishee.
______________________________/
ORDER
THIS MATTER comes before the Court on the Agreed Plaintiffs’ Motion for Entry
of Final Judgment in Garnishment on the Pleadings Against Garnishee Banco Popular
North America (DE# 90, 12/16/13).
ANALYSIS
Pursuant to Federal Rule of Civil Procedure 69, the Court must follow state law
with regard to garnishment procedures. Fed. R. Civ. P. 69. Chapter 77 of the Florida
Statutes prescribes the procedure for issuance and enforcement of writs of
garnishment. To obtain a writ of garnishment after judgment, the plaintiffs were required
to file a motion stating the amount of the judgment. Fla. Stat. § 77.03. The plaintiffs

satisfied this requirement in their motion for the issuance of a writ of garnishment to
Banco Popular North America (hereinafter “Banco Popular”). See Motion for Writ of
Garnishment After Judgment (DE# 46 at ¶1, 8/7/13).
After a writ of garnishment is issued, Chapter 77 requires that the plaintiffs
provide two separate notices in connection with the garnishment proceeding.
Subsection 77.041(1) prescribes the first provision for notice to the defendants and the
exact language of a “Notice to Defendant of Right Against Garnishment of Wages,
Money, and Other Property.” Fla. Stat. § 77.041(1). Subsection 77.041(2) requires the
plaintiffs to:
mail, by first class, a copy of the writ of garnishment, a copy of the motion
for writ of garnishment, and, if the defendant is an individual, the ‘Notice to
Defendant’ [set forth in sub-section 77.041(1)] to the defendant’s last
known address within 5 business days after the writ is issued or 3
business days after the writ is served on the garnishee, whichever is later
. . . The plaintiff shall file in the proceeding a certificate of such service.
Fla. Stat. § 77.041(2). The docket does not show that the plaintiffs complied with the
initial notice requirement of section 77.041 with respect to the Writ of Garnishment
(DE# 47, 8/8/13) issued to Banco Popular and the instant motion does not state that the
plaintiffs complied with section 77.041.
Section 77.055 prescribes the second notice requirement once the garnishee
has filed its answer. Section 77.055 provides, in part:
Within 5 days after service of the garnishee's answer on the plaintiff or
after the time period for the garnishee's answer has expired, the plaintiff
shall serve, by mail, the following documents: a copy of the garnishee's
answer, and a notice advising the recipient that he or she must move to
dissolve the writ of garnishment within 20 days after the date indicated on
the certificate of service in the notice if any allegation in the plaintiff's
motion for writ of garnishment is untrue. The plaintiff shall serve these
documents on the defendant at the defendant's last known address and
2

any other address disclosed by the garnishee's answer and on any other
person disclosed in the garnishee's answer to have any ownership
interest in the deposit, account, or property controlled by the
garnishee. The plaintiff shall file in the proceeding a certificate of such
service.
Fla. Stat. § 77.055 (emphasis added). On September 4, 2013, Banco Popular filed its
answer to the writ of garnishment. See Answer to Writ of Garnishment by Banco
Popular North America (DE# 49, 9/4/13). The answer to the writ of garnishment states,
in pertinent part:1
3.
Banco Popular North America’s search of its records indicates that
Defendant, Aron Wolfson, holds one joint checking account, number
ending in -3572.
4.
The joint checking account, number ending in -3572, had a
balance of $161.26 on the date of service of this writ and has a balance of
$2,781.36 as of the date of service of this answer.
Id. at ¶¶ 3-4 (emphasis added).
On September 6, 2013, the plaintiffs filed their Notice to Defendant[s] Pursuant
to Florida Statutes Section 77.055 (DE# 50, 9/6/13) indicating that:
1.
A copy of the “Answer to Writ of Garnishment by Banco Popular
North America” [DE.49] filed by Banco Popular North America d/b/a
“Popular Community Bank” is attached to this Notice as Exhibit “A” and
provided to the Defendants by mail pursuant to Florida Statute 77.055.
2.
Pursuant to Florida Statute 77.055, the Defendants and any other
recipient of this Notice are hereby advised that they must move to
dissolve the Writ of Garnishment [DE.47] within 20 days after the date
indicated in the Certificate of Service at the bottom of this Notice, if any
allegation in the Plaintiffs’ Motion for Writ of Garnishment After Judgment
[DE. 46] us untrue.
Id. Although the plaintiffs’ notice was timely under section 77.055, it is insufficient.
1

The plaintiffs seek a final judgment in garnishment only as to the account
number ending in -3572.
3

Banco Popular’s Answer disclosed that defendant Aron Wolfson’s checking account
was a “joint checking account.” There is no indication that the plaintiffs provided notice
to the co-owner(s) of the checking account.
Florida law requires garnishment statutes to be strictly construed. Gigliotti
Contracting North, Inc. v. Traffic Control Products of N. Fla., Inc., 788 So. 2d 1013,
1016 (Fla. 2d DCA 2001). In Padadopoulos v. Sidi, No. 05-22010-CIV-SEITZ, the
magistrate judge issued a report and recommendation recommending that a motion for
final judgment against a garnishee be denied because the plaintiff failed to comply with
the notice requirement of section 77.055 of the Florida garnishment statutes. See
Report and Recommendation on Plaintiff’s Motion for Final Judgment Against
Garnishee Morgan Stanley & Co, Inc. (DE# 271 in Case No. 05-cv-22010, 3/26/08).
The report and recommendation was subsequently affirmed and adopted by this Court.
See Order Affirming and Adopting Report and Recommendation on Plaintiffs’ Motion for
Final Judgment Against Morgan Stanley & Co., Inc. (DE# 292 in Case No. 05-cv-22010,
5/2/08); see also Cruise Control, Inc. v. Tyler, 577 So. 2d 709, 710 (Fla. 2d DCA 1991)
(per curiam) (reversing final judgment of garnishment where “garnishor failed to provide
the defendant . . . with the notice required by section 77.055, Florida Statutes . . . .”).
Moreover, the nature of the ownership interest in the joint checking account must
be determined before a judgment may be issued. “Whether an account is held as a
tenancy by the entireties or some other form of joint ownership affects the rights of
creditors . . . to garnish and execute on the funds held in that account.” Bernal v. All
American Inv. Realty, Inc., No. 05-60956-CIV, 2009 WL 586010, at *5 (S.D. Fla. Mar. 6,
2009) (citing Mathews v. Cohen, 382 B.R. 526, 530 (M.D. Fla. 2007)). The Court cannot
4

enter a final judgment in garnishment before notice and an opportunity to object under
the garnishment statutes have been provided to the joint account holder(s) and the
ownership interest in the joint checking account has been determined. See Fla. Pub.
Serv. Comm’n v. Pruitt, Humphress, Powers & Munroe Adver. Agency, Inc., 587 So.2d
561 (Fla. 1st DCA 1991) (reversing judgment of garnishment where answer to writ of
garnishment raised issue of fact concerning ownership of funds in garnished bank
account).
CONCLUSION
Because the plaintiffs have not shown compliance with the notice requirements
of sections 77.041 and 77.055 and Banco Popular’s Answer (DE# 49) raises issues
regarding the ownership of the subject checking account, it is
ORDERED AND ADJUDGED that the Agreed Plaintiffs’ Motion for Entry of Final
Judgment in Garnishment on the Pleadings Against Garnishee Banco Popular North
America (DE# 90, 12/16/13) is DENIED without prejudice to renew once the plaintiffs
have complied with the applicable provisions of the Florida garnishment statutes.
DONE AND ORDERED, in Chambers, in Miami, Florida, this 18th day of
December, 2013.
________________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
United States District Judge Huck
All counsel of record
Copies mailed by Chambers to:
Jason A. Rosenthal
The Rosenthal Law Firm, P.A.
4798 New Broad Street
Suite 310
Orlando, FL 32814
5