Legal Question in Credit and Debt Law in Florida

My husband and I owe credit card debt. Haven't been able to pay due to lay offs and less hours of work. I am on social security disablity. I think in Florida where I live they don't even have to give notice before doing it. My question is. When they freeze an account is all the money frozen or is part of it still available for the person who has the bank account? Is there an amount of money that has to be in the account. I mean if you only have 500 in the account is that money ok for the creditor to freeze does there have to be a certain amount before they can freeze it. Not sure I asking that question correctly. My social security goes into a separate bank account than my husbands pay check. I beleive my social security isn't freezable so mainly just wondering what can happen to my husbands account. If it does get frozen and a person decided to see if they should file bankrupancy would the bankrupancy unfreeze the account if the creditor is listed? Thanks Linda

Asked on 4/04/13, 11:41 am

1 Answer from Attorneys

William Gwaltney William W. Gwaltney, Attorneys at Law

First, in Florida, before any person or entity can garnish a bank account (without permission) they must obtain a judgment in court against the person on the account. Second, if the judgment is against one person, but the account was opened in the name of two people at the time of opening, then the account with both names is protected. Third, the account is not actually frozen per se, it is "garnished". This means that if a judgment creditor files for a garnishment and serves it properly on the bank, the bank then places a hold on the amount of money in all accounts owned by the debtor named in the garnishment.

Then the bank must respond to the garnishment, and the debtor is notified and given an opportunity to object, or claim any appropriate exemptions. If the debtor (you) respond with a claim for exemption you must request a hearing. If the judge agrees with you the money is released by the bank back into your accounts. If the judge agrees with the creditor then the money is released to the creditor. However, only the money that is in the accounts at the time the bank receives the garnishment is held. Any later deposits are not subject to that garnishment, a new garnishment would need to be filed. Keep in mind, the instructions to the bank is to hold an amount up to 2 times the amount of any judgment.

Now, having said all this, the account where your Social Security is deposited is supposed to be exempt from all garnishment. Further, you may be eligible for other exemptions which would have to be examined directly. Also, if you do not currently have any judgments you do not have to worry about immediate garnishment from creditors (except for the IRS).

Since you mentioned bankruptcy, I encourage you to consult with an attorney who handles bankruptcy matters on a regular basis, before making any decisions on filing. Bankruptcy is what I consider to be the last resort and I generally attempt to get my clients out of debt if there is a way without filing bankruptcy. However, bankruptcy can also be a valuable tool to help some people get a fresh start. Most bankruptcy attorneys charge very little or nothing for a consultation. If they do charge a consultation fee ask them if they will apply the fee to the attorney fee if you hire them. There are many things to consider when filing bankruptcy and you want to make sure that you meet with an attorney who knows the bankruptcy law.

I hope this response helps in some way, and I wish you the best in your efforts.

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Answered on 4/04/13, 12:15 pm

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