Motion for Summary Judgment / A Trap for the Pro-Se Homeowner

I posted an article yesterday on my other blog, Attack the Citadels, reporting on a Florida Judge who heard 300 foreclosure cases in three days. You can read that article here.  The following link is to an article explaining how that happens and why the procedure used is a trap for the unrepresented homeowner in foreclosure cases.

via Motion for Summary Judgment / A Trap for the Pro-Se Homeowner.

Wage Garnishment and the Head of Household Exemption

When a creditor has obtained a judgment against a debtor, the creditor  may proceed to collect that judgment by garnishing the debtor’s wages.   During this process the creditor will be served with the motion for writ of garnisment and the Answer of the garnishee (debtor’s employer).  it is at this time that the debtor must assert any exemption he plans to claim.

The documents served on the debtor will include a list of the standard exemptions that are most commonly asserted.  This list includes the exemption for head of household pursuant to section 222.11, Florida Statute.  In order to assert an exemption from wage garnishment as head of household the affidavit must assert facts showing that the debtor provides more than 1/2 the support for a child or other dependent.  The dependent being supported need not be a minor, or the debtor’s child.

The two factors that need to be addressed in the affidavit is the percentage of support and facts tending to show dependence, such as the dependent being in college, involuntarily unemployed, disabled, etc.  However, this second factor often is satisfied by the assertion of the fact of dependence without a showing as to why.

The court has found the existence of facts sufficient to support a head of household exemption in the following circumstances:

Killian v. Lawson, 387 So. 2d 960 (Fla. 1980)–the Court held that a divorced debtor with no minor children who pays alimony to ex-wife is entitled to head of family exemption because alimony is the ex-wife’s sole support.

Beck v. Wylie, 60 So. 2d 190 (Fla. 1952)–Mother who lived with adult daughter was entitled to head of household exemption where the mother contributed more to the daughter’s support than the daughter earned through employment.

Moore v. Rote, 552 So. 2d 1150 (Fla. 3rd DCA 1989)–Divorced mother testified that her adult children continued to live with her and were dependent upon her.

DeCottes v. Clarkson, 29 So. 442 (Fla. 1907)–Court found a “family in fact” where mother supported adult daughter who assited her mother in family affairs.

Caro v. Caro, 34 So. 309 (Fla. 1903)–Mother found to be head of family where two grown, unmarried daughters lived with the mother and earned sufficient money for their own support, except food that the mother purchased.

Hillsborough Inv. Co. v. Wilcox, 13 So. 2d 448 (Fla. 1943)–Widow who occupied residence and contributed to the support of a disabled adult son who was employed was head of household.

Beensen v. Burgess, 218 So. 2d 517 (Fla. 4th DCA 1969)–Father living with married daughter whose husband was on active military duty was head of household.

What these cases show is that if a creditor is seeking to garnish wages, and the debtor supports any other individual financially, even if it is not the spouse and minor children in the same household, the courts will tend to view the relationship as the basis for an exemption.