Document Type

Article

Publication Date

1-2002

Abstract

Under both the prior and current laws, a creditor seeking to satisfy a judgment out of property of the judgment debtor obtains a writ of execution from the clerk of the court that issued the judgment and then delivers the writ to a sheriff in one of Florida's sixty-seven counties. The writ commands the sheriff to levy on property of the debtor until the amount stated in the writ is satisfied. Under the prior law, delivery of the writ to the sheriff not only initiated the execution process, but under the seminal case of Love v. Williams, it also created an inchoate lien on all personal property subject to execution in that county. The sheriff was required to keep a record of the delivery of such writs in an execution docket. If the judgment debt was not satisfied out of the proceeds of the initial levy, or if there were no levy, the sheriff would keep the writ and the inchoate lien would continue, attaching to any new personal property the debtor might bring into the county. The effect of the inchoate lien was that if anyone were to cause the sheriff to levy on personalty of the debtor, the inchoate lien would ripen into a true lien which would date from the original moment of delivery to the sheriff. Having levied, the sheriff would sell under the writ first delivered. The proceeds of the execution sale were then distributed in the order in which the existing writs had been delivered to the sheriff.

As I have discussed elsewhere, there were two significant problems with this process. The foremost criticism was that the inchoate lien operated as a secret lien. Most people buying or lending against property did not know of or bother to check the sheriff's docket to see if the property might be subject to an inchoate execution lien. If so, and if the sheriff were later to levy on the property, they would lose it. This result flies squarely in the face of the fundamental policy in debtor-creditor law of protecting good faith transferees from unfair surprise. The second major criticism of the process was that it had the occasional effect of insulating debtors from the collection efforts of diligent creditors. Imagine a would-be diligent judgment creditor who found nonexempt property of the debtor and took steps to levy on it, only to check the docket and discover a number of prior inchoate lienors passively waiting for someone else to come along and levy on the property of the debtor. If the buildup of prior writs was substantial enough, the judgment creditor's only reasonable response would be to give up. The debtor then would continue to enjoy assets that could have been applied to payment of the debt, insulated from the efforts of the diligent judgment creditor by the buildup of prior inchoate liens. The new lien law has a number of salutary features, but the primary motivation to enact it was the desire to eliminate these problems.

My purpose here is to describe and provide examples as to how the new law is intended to work, how it intersects with other law, how portions of the law came into being, what problems concerned us, and how we sought to remedy those concerns. I also point out areas in which the statute is flawed or inadequate and suggest how, consistent with the goals of the statute, those problems might be approached.

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