Spring 2003
Fisher's Law Office

Welcome to the NEWSLETTER of Fisher’s Law Office, providing you with legal information you can use in your everyday life. If you have questions about what you read in this newsletter, please call us today.

1. How Do You Collect A Money Judgment In Florida?

(a) Florida's laws have changed dramatically regarding final judgments. Specifically, Chapter 55 states that in order to obtain a lien against personal property, one should record a "judgment lien certificate" in Tallahassee. It is no longer necessary to docket a writ of execution with the sheriff in the county where personal property is located.

(b) It is still necessary under Florida law to record a certified copy of a final judgment in order for the judgment to act as a lien against any real property owned by the defendant. Make sure that you record your judgment in every county where the defendant may have real property. There are 67 counties in Florida.

(c) Once a judgment is properly registered, one can prepare "instructions for levy" to give the sheriff in a particular county information on where the defendant's personal property is located that can be seized and sold at auction to pay the judgment.

(d) In addition to seizing personal property and real property, judgment holders can garnish bank accounts owned by defendants. Debtors must answer questions about their bank accounts and other assets in a post-judgment proceeding called a "deposition in aid of execution."

(e) Remember, getting a judgment is just the first step in the long collection process. If you have questions about collecting on a judgment you have, don't hesitate to seek legal counsel.

2. Here Are Some Ideas For The New Year To Save You Money And Make Your Life More Fruitful In The Year 2003:

(a) Read a newspaper at least once a week. Successful people keep up to date with what is going on by reading the local newspaper. You should do the same.

(b) Use a computer. A computer is a useful tool for communicating, storing information and making your life more efficient. People who use computers and the internet tend to be more efficient and have higher incomes than those that don't. Never hesitate to ask a friend for help in using your computer. A computer is an investment that could pay for itself dozens of times.

(c) If at all possible, get rid of your car payment. The cost for automobile transportation is often the biggest single item in a family's budget. Auto costs include taxes, insurance, gasoline, oil, maintenance and debt payments. Are you driving a newer car and working from paycheck to paycheck? Consider changing your lifestyle and getting rid of the new car.

(d) Use the advice of professionals and skilled craftsmen. How many times have you spent an entire day fixing something when you know someone that could do the job more efficiently? Always consider using an expert to assist with complex tasks. Remember, your time is worth money, treat your time as a valuable asset.

(e) Evaluate your financial situation at least once a year. Sit down and list all of your assets and liabilities on a single page. Include your savings, 401(k) plan balances and all debts and credit card balances. Has your wealth increased in the last year? What changes can you make to get ahead next year?

(f) Write down everything you spend for the next two months. After two months, look at your list of expenditures. Decide what things you are spending money on that you could eliminate to save money for your children's college, your own retirement or other items.

(g) If you have credit cards, make sure you pay your credit cards on time. Remember that credit card companies make money from "late payment" fees. Don't be a credit victim: eliminate late fees from your life!

(h) If you can't make payments on time, consider filing bankruptcy to discharge your debts. Remember, Congress is about to change the bankruptcy law. The new law makes filing for bankruptcy much more difficult. If your debts are out of control, consider filing now and changing your lifestyle to live within your means.

3. If You've Decided To File Bankruptcy, Remember These "do's And Don'ts" Of Bankruptcy.

  • ¨ Do consider filing for bankruptcy if you can't pay your debts. Bankruptcy is allowed under Article I, Section 8 of the United States Constitution.
  • ¨ Do ask an attorney what type of bankruptcy is best for you: Chapter 7 (full liquidation) or 13 (repayment plan).
  • ¨ Do complete all schedules truthfully and completely.
  • ¨ Do list all your creditors. If you fail to list a creditor, the debt may not be forgiven!
  • ¨ Do list all property you own no matter how small the item.
  • ¨ Don't charge on your credit card for as long as possible before filing for bankruptcy.
  • ¨ Don't charge luxury items on a credit card before filing for bankruptcy.
  • ¨ Don't give property to others to hold for you while you're in bankruptcy proceedings. Hiding property in bankruptcy is fraud and could be a criminal offense.
  • ¨ Don't run up debts again after your bankruptcy even if people offer to loan you money (ironically, your credit rating might actually increase after bankruptcy as you have no debt and can't file another bankruptcy for six years!)
  • ¨ Don't be a "serial filer", someone who files repeatedly for bankruptcy only to have the case dismissed for failure to file required documents.
  • ¨ Do bring your social security card and driver's license to your meeting of creditors to show the trustee.
  • ¨ Do consider filing for bankruptcy before the law changes making it much more difficult to file.
  • ¨ Do spend the money to see an attorney to determine whether bankruptcy is right for you. Not everyone who is in debt should file for bankruptcy.

4. Why Is Florida A Debtor's Haven?

Florida is the number one place in the United States to live if you owe money. The reason for this is that unlike most other states and countries, you can never lose your home to a general creditor in Florida (see Article X, Section 4, of the Florida Constitution). A homestead is considered to be one half acre within a city limit or up to 160 acres outside of a city. In general, the only persons who can seize your house are the mortgage company and the tax collector. Also, certain laborers can obtain lien rights to your home. Other than these three classes of creditors, no one can ever take your house in Florida.

¨ For example, if you were on Medicaid, a health program for the poor, your home cannot be seized after your death to pay back the Medicaid program. Instead, your home goes to your spouse or children free of the Medicaid lien.

¨ If you have unpaid credit card debt and the credit card company sues you and obtains a judgment against you, the judgment cannot be used as a basis for seizing your house.

¨ Remember; never take out a mortgage on your home to pay credit cards. Consider going bankrupt instead. You'll get to keep your home and the credit card debt will be forgiven. (However, you'll still owe on your home mortgage after the bankruptcy.)

¨ Under Florida's Constitution, personal property valued up to $1,000.00 may not be seized by creditors.

¨ The rights to homestead and personal property inure after the bankruptcy to your surviving spouse and children. This means that when you die, your wife and children can take your house without having to pay your general creditors.

5. Student Loan Red Alert.

Why are college students vulnerable to being victimized by debt?

Because their student loans (along with child support and alimony) are not dischargable in bankruptcy. Our office has witnessed an alarming trend in which former students who haven't yet found a good job are nevertheless saddled with onerous, non-dischargable debts they can't pay. Don't be a student victim. Don't take out a student loan if you can help it. Instead, borrow the money to attend school from another source!

6. Now Is The Time To Look Closely At Your Employer Sponsored Pension Plan.

Read your pension summary and plan documents and determine what type of pension plan you have. If you have a "defined benefit" plan, you are entitled to receive a set amount of benefits when you retire no matter what the stock market does. On the other hand, if you have a "defined contribution" plan, you only receive the amount of money that has been built up in your plan (a typical defined contribution plan is a 401(k)). If you have a defined benefit plan, be careful about your employer's attempts to switch you to a "cash balance" plan. This move is designed to save employers by phasing out traditional fixed pension plans but the effect of such cash balance plans is to short change older workers. Cash balance plans force older workers to begin saving from scratch regardless of their length of service. Often, older workers do not have time to earn sufficient funds to save for retirement. Therefore, always be cautious of any attempts by your employer to switch you from a defined benefit plan to a "cash balance" plan.

7. When You Drive A Car, Be Cautious Of The Following Dangers Lurking On The Roads Of Florida:

(a) The cell phone has become a deadly source of roadway deaths in America. According the Harvard Center for Risk Analysis, drivers talking on cell phone are responsible for six percent of all U.S. auto accidents each year. In 2002, 2,600 people died because of cell phone use in traffic. In addition, 330,000 people were injured because of cell phone use while driving.

(b) When you drive, always wear your seatbelt. Failure to wear seatbelts is a substantial source of injury in automobile accidents. Don't ever think that accidents happen to the "other guy" as car crashes can happen to anyone at any time. Putting on a seatbelt is one of the easiest ways to protect yourself from death or injury in an automobile crash.

(c) Make sure your child is properly seated in a child's car seat.

(d) Do not drink alcohol and drive. There are over 42,000 people killed on the highways of the United States every year and alcohol is a contributing factor in over half of these crashes.

(e) Drive the speed limit. Be aware that you are allowed to speed in Florida by up to five miles an hour over the speed limit. Florida Statutes, Section 318.18, states that the civil fine for exceeding the speed limit by between one and five miles per hour is a "warning". However, anyone who speeds in a school zone by up to five miles an hour can be fined up to $50.00. Moral to the story? If you're going to speed, speed by less than five miles an hour.

8. Identify Theft Update.

The biggest white collar crime of the decade is identity theft. Here are some identity theft updates you can use in your everyday life to protect yourself from this crime:

¨ Once a thief obtains your name, social security number and other information, he can apply for a credit card in your name. To prevent this, consider getting a copy of your credit report periodically to verify that you know of all credit card accounts in your name.

¨ If you discover an error on your credit report because of charges you did not authorize, contact the credit reporting company in writing and demand that they remove the item from your credit report. Send copies of police reports and other documentation including correspondence showing that the person using the credit card is not you.

¨ If the credit reporting agency refuses to delete the item from your credit report, consider threatening a suit for defamation of character. (Be aware that it is very difficult to win such a lawsuit because you must show a financial loss as part of your case.)

¨ If someone has abused your credit so badly, be aware that some people are using "pseudocide", a kind of legal suicide in which you are declared "dead" so that you can establish new credit under a new name.

¨ Here are some hints on protecting yourself:

(a) Never give out personal information over the telephone.

(b) Never respond to e-mails asking for you to re-register. Recently, E-Bay, an auction site, was the subject of such a fraud in which someone claiming to be from E-Bay e-mailed E-Bay customers asking for registration details.

¨ Watch out for the use of your children's credit. Check your children's credit periodically to make sure your former spouse is not applying for credit in their name and ruining their credit before they even reach adulthood.

¨ Watch out for fake internet websites that request credit card information. These sites are designed to obtain personal information about you.

¨ Above all, protect the three digit number on the back of your credit card. This number is the ultimate security number that no one knows but you and the credit card company. Never ever give this number out to anyone except a legitimate vendor (the three digit code is on the signature side of your credit card in the signature block).

¨ Do not throw away credit card statements. Burn them or shred them. Do the same for bank statements and other sensitive financial information.

¨ Be cautious regarding "windows of opportunity". The opportunities for identity theft include getting married, breaking up, getting divorced, moving to a new house and changing jobs. These are times when people are most vulnerable to identity theft.

¨ Lastly, shred your junk mail. Junk mail often contains sensitive information. Don't simply throw junk mail away especially if it is a credit card solicitation. A thief could go into your garbage, obtain the credit card solicitation and apply for a card in your name.

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