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  1. #1
    Join Date
    Mar 2013
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    1

    Default Judgment Creditor is Seeking Information About Debtor's Spouse's Finances

    My question involves judgment recovery in the State of: Florida.

    Hello,
    Unfortunately, my husband has a judgement against him, which we are paying $50.00 per month on. I recently received a set of interrogatories in the mail. They are asking about joint accounts, he has one with me and one with my son. They are asking him to say the money is his only, regardless of whose names are on the accounts. They want copies of our joint tax returns with both my sons and my information on it. They are also asking about any money that I might be receiving. I was not married to him at the time he either got the card, or when he defaulted. I was neither listed as an authorized user nor added as a joint cardholder, as it was in default soon after we met. The judgment was obtained soon after we got married.

    Do they have any legal right to my information? Do they have any legal right to have our joint account information? Can I block out any information that has nothing to do with my husband or this judgement on our joint returns? I will never give them my sons information. This is my minor child from a previous marriage, they do not have any right to his information!!

    All help is appreciated, especially if you can give either FL statutes, or maybe federal laws to back this information!! Thanks in advance!

  2. #2
    Join Date
    Dec 2008
    Location
    Calif
    Posts
    289

    Default Re: Does a Debt Collector Have a Right to the Information of a New Spouse on an Old D

    On the bank accounts, you can close the account and open a new one, without your husband's name on it. That will prevent them from getting to the account.

  3. #3

    Default Re: Does a Debt Collector Have a Right to the Information of a New Spouse on an Old D

    I happen to be in a similar situation and have done a lot of research on it. A technicality applies and the devil is in the details.

    1. Your husband's account with your son is exposed to the extent of 50% of the account as it stands.

    2. The account between you and your husband may or may not be safe depending how it is titled. Ideally, the account opening cards will read Y and X, husband and wife as Tenants by the Entirety. Those last four words can be worked almost like magic. As a second possibility, if it just reads husband and wife, the "and" part being critical it will be construed as Tenancy by the Entirety unless you have disclaimed that by something like Joint with right of survivorship.

    First off, don't yet answer anything. If there is enough money involved get a lawyer. Next, your husband should not touch anything!! Any action he might take could easily be called a fraudulent transfer. Do not say it is his alone! They know about the concept of TBE and are trying to get him to disclaim it.

    If you have Tenancy by the Entirety as above you need to file an affidavit with the court and your county sheriff asserting that Tenancy by the Entirety. I',m not clear why you are getting the questions if you are paying on some sort of agreement. That sort of thing usually is done prior to filing for a writ of execution to get a sheriff to seize / levy property. Bank accounts get garnished WITHOUT NOTICE TO YOU: It is critical you do the affidavit ASAP. A court must however notify you of execution on property. Also check sunbiz.org as that is where the judgment must be filed to proceed to getting the execution. They could go after your cars, too. Your home is safe because of Florida Homestead law though an affidavit of domicile/homestead with the county is a simple and cheap safety step.

    As far as true joint accounts (titled "or", or not between husband and wife - the only situation in which TBE applies) if the party other than your husband, in no way involved were to take the money and waste it on some frivolity, leaving only $100. or $200., well so it goes.

    Finally, since I don't know the amount, any pensions are immune from garnishment. In fact, under Federal law, Social Security money in a bank account cannot be garnished and special procedures apply to attach those accounts - mainly, not worth the bother for the creditor unless your husband says/writes something dumb.

    Good luck.

  4. #4
    Join Date
    Sep 2005
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    Default Re: Does a Debt Collector Have a Right to the Information of a New Spouse on an Old D

    Quote Quoting 2boysmom
    View Post
    I recently received a set of interrogatories in the mail. They are asking about joint accounts, he has one with me and one with my son.
    As money in an ordinary joint account is presumed to be the equal property of both account holders, that's perfectly understandable.
    Quote Quoting 2boysmom
    They are asking him to say the money is his only, regardless of whose names are on the accounts.
    He can answer their questions truthfully.
    Quote Quoting 2boysmom
    They want copies of our joint tax returns with both my sons and my information on it.
    He can move for a protective order, asking that the court permit him to redact certain sensitive or irrelevant information (or other relief he deems appropriate).
    Quote Quoting 2boysmom
    They are also asking about any money that I might be receiving.
    Is that their actual question?
    Quote Quoting 2boysmom
    I will never give them my sons information.
    You have told us that all they've asked for in relation to your son is that your husband identify joint accounts. To the extent that your son is declared on your tax return as a defendant, see the aforementioned discussion of a possible protective order.
    Quote Quoting johnb123
    View Post
    On the bank accounts, you can close the account and open a new one, without your husband's name on it. That will prevent them from getting to the account.
    Not if there's commingling.
    Quote Quoting richard33774
    View Post
    1. Your husband's account with your son is exposed to the extent of 50% of the account as it stands.
    Actually, all funds in the account are exposed.
    Quote Quoting richard33774
    2. The account between you and your husband may or may not be safe depending how it is titled. Ideally, the account opening cards will read Y and X, husband and wife as Tenants by the Entirety.
    A pretty thorough account of bank accounts that are tenancy by the entirety accounts can be found here.
    Quote Quoting richard33774
    First off, don't yet answer anything. If there is enough money involved get a lawyer.
    Consulting a lawyer before answering makes sense, but they also need to recall that there's a deadline.
    Quote Quoting richard33774
    Next, your husband should not touch anything!! Any action he might take could easily be called a fraudulent transfer.
    It's not just "your husband" who needs to be careful in relation to jointly held property - it's also "you", in relation to jointly held funds and property that you can transfer without his permission.
    Quote Quoting richard33774
    Do not say it is his alone! They know about the concept of TBE and are trying to get him to disclaim it.
    It is unlikely that the bank accounts are tenancy by the entirety accounts; one way or another, though, answers should be truthful.
    Quote Quoting richard33774
    ...if the party other than your husband, in no way involved were to take the money and waste it on some frivolity, leaving only $100. or $200., well so it goes.
    You have to be careful about what you do that could cause a creditor (or judge) to decide that you're unworthy of any additional breaks or chances.
    Quote Quoting richard33774
    In fact, under Federal law, Social Security money in a bank account cannot be garnished and special procedures apply to attach those accounts
    That is not correct, although if the money is from an exempt source it may be possible to have the court order its return. In some states the money is frozen while the debtor is given the chance to assert an exemption; in other states the creditor will get the money first. It is possible to be proactive and to assert an exemption by motion, such that the court rules on the issue before the creditor attempts to garnish funds that were received from an exempt source.

  5. #5

    Default Re: Does a Debt Collector Have a Right to the Information of a New Spouse on an Old D

    In Florida it is 50% in an account which is not TBE.

    The "here" is not a thorough explanation. It is however a good example of how TBE can be disclaimed accidentally; and, there are others. I would recommend alperlaw.com as a lead to a good Florida asset protection blog which reaches the point of being a textbook (I mean that in a good sense). I have no relationship with the firm, just found it a useful site and am passing it along.

    Under Florida law accounts and property titled jointly between husband and wife are presumed TBE unless disclaimed. For accounts and property "AND" generally makes it and "OR" generally does not.

    Note that for anyone from another state, read your own state's laws thoroughly as much of this will NOT apply in the majority of states! TBE exists in a number of states, not the majority, and even fewer allow it on anything other than real property (meaning real estate). Florida is one.

    Since 2011, Social Security deposited in a bank by direct deposit (not a paper check subsequently deposited) must be exempt for two months. Previously, the bank would just freeze the account; they can't do that any more but must calculate the SS amount and keep it free. Note that a three month old deposit is exposed. I( doubt this applies in this case.

    They are not entitled to all that information and merely are looking for cheap discovery of things to attack. I am not considering the merits or morals of this debt. Again, why is this happening if you have been paying? (rhetorical question, beyond that you may need legal counsel) You must respond to a subpoena, but basic questions - usually on some official looking form to fool you? The proper response would be to send a signed notarized statement to the attorney sending the letters stating that you are not a party to the original debt and further (assuming this is the case) that the account in question is a Tenancy by the Entirety account. Notarized signature. You need also to send a copy to the creditor. If there is a court involved you might want to use a full, formal affidavit format, same facts.


    Very true about the judge's impression and opinion. That's why you want to avoid court: it's not "justice" when it is opinion which can vary by moon phase or an opinion of the car you drive. That's just my opinion, of course, but I'm right. It is a legal system, processes and procedures, justice is if you're lucky.

  6. #6
    Join Date
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    Default Re: Does a Debt Collector Have a Right to the Information of a New Spouse on an Old D

    Quote Quoting richard33774
    View Post
    In Florida it is 50% in an account which is not TBE.
    Please cite legal authority for that assertion.
    Quote Quoting richard33774
    The "here" is not a thorough explanation. It is however a good example of how TBE can be disclaimed accidentally
    It is a much more thorough explanation than your one-liner, and provides both the framework for TBE and how it can fail. Perhaps it was more technical than the sort of web content you're used to reading.
    Quote Quoting richard33774
    TBE exists in a number of states, not the majority, and even fewer allow it on anything other than real property (meaning real estate). Florida is one.
    That is correct, and is also part of why a one-line, off-the-cuff reference isn't sufficient to explain the context.
    Quote Quoting richard33774
    Since 2011, Social Security deposited in a bank by direct deposit (not a paper check subsequently deposited) must be exempt for two months. Previously, the bank would just freeze the account; they can't do that any more but must calculate the SS amount and keep it free. Note that a three month old deposit is exposed. I( doubt this applies in this case.
    I agree with you that your digression into Social Security is almost certainly irrelevant, and that you misstated how garnishment works; let's note also that the two month limitation only applies to the account into which the direct deposit is made. Thanks for clearing that up.
    Quote Quoting richard33774
    They are not entitled to all that information and merely are looking for cheap discovery of things to attack.
    If a judgment debtor believes that certain information should not be subject to discovery, he can object to the discovery. If he believes that a protective order should be granted in relation to certain content, such that it is disclosed under seal or redacted before being provided to the other party, he can seek a protective order. If you want to make a legal case that a judgment creditor is not entitled to seek discovery of the type described, by all means share it.
    Quote Quoting richard33774
    Again, why is this happening if you have been paying?
    That's a fair question, if in fact there is an agreement that the judgment is to be paid off at $50 per month.
    Quote Quoting richard33774
    You must respond to a subpoena, but basic questions - usually on some official looking form to fool you?
    What do you believe yourself to be talking about here?
    Quote Quoting richard33774
    The proper response would be to send a signed notarized statement to the attorney sending the letters stating that you are not a party to the original debt and further (assuming this is the case) that the account in question is a Tenancy by the Entirety account.
    Why do you believe that notarization would have any significance, or that a letter from a non-party would have any influence on an attorney who has served a subpoena on a party?
    Quote Quoting richard33774
    You need also to send a copy to the creditor.
    Why do you imagine that would either be necessary or helpful?
    Quote Quoting richard33774
    If there is a court involved you might want to use a full, formal affidavit format, same facts.
    Why do you imagine that an affidavit from a non-party, submitted directly to the court, would have any influence on the court proceedings?

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