Typically speaking, the objective of any civil lawsuit is for the plaintiff to recover money from the defendant as the result of a favorable judgment. However, civil cases are oftentimes riddled with delays, and it can be years before a judgment is rendered, and even longer until due payment is made. A dishonest defendant can take advantage of these delays by hiding or shifting assets, leaving little to nothing for the plaintiff to recover post-judgment.
The answer to this disturbing scenario lies in securing a prejudgement remedy – a legal instrument that can prohibit the defendant from transferring or gifting assets throughout the course of the lawsuit and ensure that there are funds available to the plaintiff at the end of the trial. Unlike post-judgments, prejudgment remedies afford the plaintiff peace of mind in knowing that there will be collectible assets left at the conclusion of the oftentimes arduous civil process.
Attachment is the most-used means of collection implemented by creditors in Florida. This remedy allows the plaintiff to secure a lien on the defendant’s property should the defendant attempt to sell their property. Proceeds from the sale, or portions thereof, would be paid directly to the plaintiff.
The downside to this action is that many creditors can place liens on the same property, greatly reducing the amount each creditor is able to collect. The defendant may also decide not to sell the property, in which case more aggressive remedies should be pursued.
Writ of Replevin
Similar to attachment, a prejudgment replevin allows the plaintiff to secure a superior interest in a specified property. Unlike prejudgment attachment, however, a replevin gives the plaintiff possession of the property, who then agrees to hold and protect the property until a final judgment in the case is rendered.
Should final judgment swing in the defendant’s favor, Florida law states that the creditor would be held liable for damages to the defendant for the wrongful taking and possession of the property.
To ensure there is an available form of payment accessible to the creditor at the conclusion of the lawsuit, the plaintiff may secure a prejudgment Writ of Garnishment. This remedy allows the court to “freeze” the defendant’s access to bank accounts or property to be held as collateral while the lawsuit is pending. A garnishment makes the funds or property unavailable to the defendant until a final decision is made by the court, at which time a portion or all of the assets would be awarded to the plaintiff. The garnishment could also be released – granting the debtor access to their accounts and/or property.
Florida law requires that prejudgment remedies are secured by a bond to be posted by the creditor. These bonds make certain that prejudgment remedies are sought after in good faith and only under circumstances where the plaintiff is likely to succeed in proving their claim.
It is important for the creditor to know that if the Creditor does not prevail, the bond in part or whole may be used by the Defendant to cover damages caused to the Defendant as a result of the Creditor’s use of prejudgment remedies. In addition, a Creditor needs to be mindful of any third party liens on a property or whether the Defendant’s accounts or property may be subject to exemption from attachment, replevin or garnishment in order to assess whether or not the Creditor should use prejudgment remedies.
To learn whether prejudgment remedies are beneficial to your case, or to get assistance with collecting monies awarded to you by a final judgment, contact the qualified attorneys at The Campbell Law Group,P.A.