Florida Bar Journal

Florida’s New “Judgment Lien Improvement Act” — Judgment Defendants Beware Because Your Creditors May be Able to Get It Although They Can’t See It!

Florida lawyers often hear the cry from their clients that Florida is a “debtor’s haven” because of the generous homestead exemption provided by the Florida Constitution,^[1] the various personal property exemptions available under statute,^[2] and the “tenancy by the entireties” immunity protection afforded to married couples that own property jointly but the creditor holds a judgment against only one spouse.^[3] This column, however, is not about protections from creditors’ claims. Rather, the holders of Florida money judgments and the attorneys they hire now have another arrow in their collection quivers thanks to the new Judgment Lien Improvement Act,^[4] which took effect on July 1, 2023. However, as is the case with creditor’s rights generally, there are some limitations, which are discussed throughout this article.

In broad terms, the act first expands the reach of a Florida judgment lien against a defendant’s ownership of certain intangible personal property rights. Specifically, the act amends certain provisions of F.S. Ch. 55, to make “accounts”^[5] and “payment intangibles”^[6] and “the proceeds thereof,”^[7] owing by a third party legally called an “account debtor,”^[8] subject to the lien of a judgment lien certificate. Thanks to the act, a judgment creditor, subject to certain requirements, may be able to enforce its judgment against assets a judgment debtor owns but that do not exist in a physical sense. The act applies alike to defendants that are natural persons and business entities. At the same time, the act makes it clear that the rights of pre-existing lienholders are not adversely impacted.

A second focus of the act provides improved methods by which a judgment creditor can ensure its judicial lien is recognized by the State of Florida and effective against its judgment debtor’s title to a motor vehicle or vessel. To do this, the act adds a new subsection (b) to F.S. §56.29(6) and makes conforming changes to Ch. 319 regarding the process for recognizing judgment liens against titled vehicles and vessels.

The impetus behind the act was the Business Law Section of The Florida Bar. The section created a task force or subcommittee to study and evaluate issues pertaining to whether a right to receive payment should be subject to attachment by a judgment lien creditor and the practical roadblocks when a judgment creditor attempts to levy upon a non-exempt vehicle or boat because of certificate of title protocols. Several members of the section’s subcommittee, including me, contributed drafting suggestions, but University of Florida Levin College of Law Prof. Emeritus Jeff Davis was the primary author of the act.^[9] The support of Sen. Darryl Rouson and Rep. Christopher Benjamin, the act’s lead sponsors in the Senate and House, respectively, was critical to the concept becoming a Florida law.

Why the Need for Change

After winning a civil suit and receiving a monetary award, the plaintiff often faces the challenge of recovering money to satisfy its judgment. Typically, in a large enough case, a judgment creditor will use financial condition information in its files, engage an asset investigator, use web-based asset research tools, and employ the discovery in-aid-of-execution procedures of Fla. R. Civ. P. 1.560(a) to find property that might be subject to levy under F.S. Ch. 56, or perhaps subject to garnishment under F.S. Ch. 77.

Since October 2001,^[10] the holder of a money judgment had been entitled to file a judgment lien certificate with the Florida secretary of state, at which time the holder acquires for five years a judgment lien on any of the defendant’s non-exempt tangible personal property located in Florida.^[11] The historical restriction to tangible property may have been the result of lack of appreciation for the existence in the marketplace of significant contract-based revenues a person or entity might be entitled to receive from third parties.^[12]

In addition, the previous statutory rules applicable to obtaining non-consensual liens on certificated vehicles and boats made it practically difficult for judgment creditors to execute on a defendant’s high-end car or luxury vessel because the owner could transfer the property to a third party free and clear of the judgment lien as that lien did not appear on the face of the certificate of title.^[13]

Over a couple years, the section’s subcommittee studied, evaluated, and debated the status of post-judgment collection in Florida and issued its “White Paper by Business Law Section of Florida Bar, Bankruptcy/UCC Committee, on Clarifying and Expanding the Scope of Florida’s Judgment Lien on Personal Property.”^[14] The White Paper, which was later updated, discussed the above-described issues, and recommended most of the changes that were incorporated into the act.

What the New Law Does Specifically

The act addresses the main challenges discussed above. First, the act allows a judgment lien to attach to certain intangible personal property, specifically payment intangibles and accounts or accounts receivable. Section 55.202(2), as amended, revised existing law by adding the emphasized (italicized) phrase below:^[15]

(2) A judgment lien may be acquired on a judgment debtor’s interest in all personal property in this state subject to execution under s. 56.061, including payment intangibles and accounts, as those terms are defined in s. 679.1021(1), and the proceeds thereof, but excluding other than fixtures, money, negotiable instruments, and mortgages.

In other words, the act enhances judgment collection remedies because now a judgment creditor has a more direct shot at a defendant’s non-exempt cash flow, if it exists in the form of accounts or payment intangibles. Such payment rights could include the judgment defendant’s legal entitlement to payment for services rendered^[16] or goods sold, which is an account under F.S. §679.1021(1)(b), or the defendant’s legal entitlement to receive royalties, rent under a personal property lease, or payments due under a contract such as settlement agreement, each of which is a payment intangible.^[17]

Consequently, as of July 1, 2023, a judgment debtor may no longer be able to protect valuable intangible assets with significant equity and avoid responsibility on a valid judgment debt, except to the extent a natural person defendant can use his or her modest personal property dollar exemptions under Fla. Const. art. X, §4(2), or, if applicable, F.S. §222.25(4). A judgment defendant may have an argument to avoid the lien, if the payments rights are owned legitimately as “tenants by the entireties” and that title is not subject to challenge as a fraudulent transfer under F.S. Ch. 727, or a “fraudulent conversion” under F.S. §222.30. In any event, collection lawyers should make sure they revise their discovery in-aid-of-execution checklists to cover these new attachable property rights, including when and how acquired and by whom. At the same time, counsel advising judgment defendants should consider the impact of these new rights when advising clients.

Enforcement of a Judgment Lien Against Accounts or Payment Intangibles

So, how does the judgment creditor collect the identified payment streams subject to its judicial lien? During its study process, the section’s subcommittee was concerned about permitting creditors using self-help to go after the judgment defendant’s revenue stream. This concern existed because of the potential havoc and confusion this type of collection action might cause to an ongoing business, including the adverse impact on employees and any existing secured credit relationship. An entity judgment debtor may have previously pledged its accounts and payment intangibles (and other assets) as part of a secured line of credit transaction to lender or factor. The pre-existing perfected lien takes priority over the lien rights of a judgment creditor in the same asset, under F.S. §55.202(2)1 and art. 9 of Florida’s version of the Uniform Commercial Code.^[18]

Importantly, unlike a consensual secured creditor under art. 9, a judgment lien creditor cannot invoke the non-judicial notification protocol authorized by F.S. §679.607(1)(a), unless it obtains the written consent of the judgment debtor after the creditor’s judgment lien certificate has been filed.^[19] Such written consent could be obtained as part of an agreement to temporarily forbear from collection remedies after the judgment lien attaches, for instance, although a direct pledge to secure the judgment debt under art. 9 might be preferred in that circumstance. Absent valid consent, self-help against the intangible property is prohibited by the act’s language, which requires judicial process to effectuate collection.

The act lists various methods by which the perfected judicial lien creditor can effectuate its judgment lien, but not all of them enable the creditor to get at a defendant’s right to receive accounts or payment intangibles. New subsection 55.205(6) provides, in relevant part:

(6) A judgment lien acquired under s. 55.202 may be enforced only through judicial process, including attachment under chapter 76; execution under chapter 56; garnishment under chapter 77; a charging order under s. 605.0503, s. 620.1703, or s. 620.8504; or proceedings supplementary to execution under s. 56.29.

Attachment under F.S. Ch. 76 has a well-established set of rules and protocols, which to this writer seems a cumbersome and time-consuming means to reach the debtor’s right to receive payments of money owing by a third party. Moreover, levy of the payment stream of accounts or payment intangibles and an execution sale under F.S. Ch. 56 are not available because §§56.061 and 56.069, do not include these intangibles.

A judgment creditor may use post-judgment garnishment under F.S. §77.03 to obtain what the garnishee/payor owes the judgment defendant, but that approach is limited. This is because Florida does not authorize continuing garnishment except for wages.^[20] Thus, when money is payable repeatedly or in installments, as often is the case with royalties or lease payments, a new writ of garnishment needs to be served at the time each payment is due to the judgment defendant. There is also a risk the writ is served too late or too early. However, using garnishment may be effective if the judgment creditor is aware of an impending large payment to be made to the judgment defendant.

Another impediment exists with using the garnishment remedy where the garnishee is located outside Florida, in which case the judgment creditor must domesticate the judgment in the state where the payor is located, hire counsel in that state, and implement the garnishment process of that state. Finally, the judgment creditor using the garnishment remedy needs to make sure the court enters a final judgment or order ruling that the payments being made by the account debtor are to be paid to the judgment creditor to complete the judicial process.

New F.S. §55.205(6), recognizes that a judgment creditor can use proceedings supplementary under F.S. §56.29 to obtain a court order authorizing the direct collection of the accounts or payment intangibles from an account debtor. The new law does not mandate the exact form of pleading that must be initiated to obtain the required court order. Instead, F.S. §55.205(7) authorizes the judgment creditor to file and serve an account debtor:

with a complaint or petition by the judgment creditor seeking judicial relief with respect to the payment intangibles or accounts. [After service of process on the account debtor], the account debtor may discharge the account debtor’s obligation to pay payment intangibles or accounts or the proceeds thereof under this section only in accordance with a final order or judgment issued in such judicial process that complies with this section.

This amendment adopts some protocols of F.S. §679.607(1)(a) and imposes a duty on the account debtor to cease payment to the judgment debtor once the account debtor has notice of the judgment creditor’s claim, which in this context is service of process of the judgment creditor’s legal action on the account debtor. The bottom line is that a judgment creditor now has the opportunity to go after a judgment debtor’s anticipated revenues before they are collected as long as that creditor serves the account debtor with the required process, consistent with F.S. §55.205(7). At that point, the account debtor can no longer pay its vendor or supplier, who also is the judgment debtor, unless a final order allows those payments to resume. As a practical pointer, from a cost-benefit analysis, however, lawyers advising judgment creditors should discuss with their clients the existence and extent of a pre-existing secured lien filed against the potential accounts and payment intangibles. Such collection action still might be warranted if, for instance, the judgment creditor has reason to believe the defendant is wasting or absconding with the payments collected from the account debtor.

Caveat: Prior Perfected Art. 9 Secured Party UCC Lien Beats Judgment Lien Creditor

The act makes it clear that a judgment lien certificate does not prime the existing rights of prior perfected secured parties under art. 9.^[21] However, if a secured creditor with a prior-filed financing statement permits its perfected lien to lapse by failing to timely file a continuation amendment within six months of its expiration date,^[22] a holder of an effective judgment lien certificate would prime the secured party’s priority in the subject accounts and payment intangibles, at least until the judgment lien’s five-year life has expired. Moreover, new F.S. §55.205(7) makes it clear that the account debtor retains its obligation to a secured party who has made written demand upon it to turnover payments under F.S. §679.607(1), “except as the rights and obligations under this paragraph are otherwise adjudicated under applicable law in a legal proceeding to which the secured party and account debtor are joined as parties.” As noted, unless and until a court enters a final order to the contrary, the account debtor is required to pay its accounts or payment intangibles to the secured party who sent the notice.

One Potential Effect of New Law

The aggressive use of the act’s new creditor rights benefits might encourage more bankruptcy filings judgment defendants whose revenue flows from payments coming from third parties. The judgment lien against a judgment defendant’s account or payment intangible becomes perfected for a five-year period the moment the judgment creditor properly files an authorized and properly completed judgment lien certificate with the Florida secretary of state that is accepted.^[23] Further, 90 days after the filing of the judgment lien certificate, the judgment creditor’s lien in the defendant’s right to receive payments as accounts or payment intangibles generally cannot be avoided as a preference under federal bankruptcy law, specifically §547 of Title 11 of the U.S. Code.

Moreover, the service of a complaint or petition by the judgment lien creditor against the account debtor prohibits that payor from paying its vendor who is a judgment debtor. This initiation of legal action may severely cut off the judgment debtor’s cash flow and result in a Ch. 11 filing. However, in Ch. 11, the debtor-in-possession can assert a demand for turnover under 11 U.S.C. §542(b), which generally entitles the company to recapture its receivable payments.^[24] Thus, counsel to a defendant that depends upon timely collections of payment entitlements and is facing a likely money judgment may want to discuss with his or her client sooner rather than later the impact of the act and whether some type of bankruptcy protection is warranted.

Clarifications to Better Recognize and Effectuate a Judicial Lien Against Certificated Vehicles and Vessels

In addition to the expansion of a judgment creditor’s rights to go after certain intangible property of a judgment defendant, the act 1) creates a new subsection (6) under the proceedings supplementary protocols of F.S. §56.29(b), requiring the trial court to enter an order directing the Florida Department of Highway Safety and Motor Vehicles (DHSMV) to show a creditor’s judgment lien certificate on a title certificate for any non-exempt motor vehicle or vessel owned by a judgment defendant; and 2) clarifies the process to obtain notation of a judgment lien on a title certificate of a motor vehicle or vessel. The changes in F.S. Ch. 319, the certificate of title statute, also aid a judgment creditor’s ability to recover against non-exempt vehicles or vessels owned by the judgment defendant. A judgment lien creditor must utilize the levy, notice and sale procedures of F.S. Ch. 56 (which are beyond the scope of this article) in order to realize upon its judgment lien against the defendant’s car or boat.

This portion of the act affecting cars and boats owned by judgment defendants fills a gap that allowed a judgment defendant to frustrate the judgment creditor’s efforts at recovery in situations in which a defendant owns an expensive car or boat with little or no debt. Florida law requires the judgment lien to be noted on the title certificate if the judgment creditor seeks to enforce the lien against someone other than the owner. However, until the act, there was no statutorily approved procedure for a judgment creditor to add this notation to the title certificate. As a result, creditors were uncertain as to how to obtain a court order requiring DHSMV to add the notation — whether through filing a separate action or by initiating a proceeding supplementary to the execution. This ambiguity enabled a judgment debtor to sell luxury automobiles and boats free of an otherwise valid judgment lien, because without the notation of the lien on the official certificate giving notice to third parties of the judgment lien, the judgment creditor generally could not enforce the lien against creditors or a subsequent purchaser.^[25]

To resolve the dilemma, the act indicates two ways to obtain notation of a judgment lien on a title certificate: 1) the statute establishes a process in which a judgment creditor may directly request the DHSMV to note a judgment lien on a vehicle or vessel’s title certificate;^[26] and 2) the new law clarifies that judgment creditors may request a court order in proceeding supplementary to execution, rather than in a separate action.^[27] By providing clarity and creating a streamlined process, the act closes a loophole that allowed debtors to evade payment. However, new subsection 55.205(a)(5) states that the “enforceability…against creditors or subsequent purchasers is determined as provided under s. 319.27(2) or s. 328.14, as applicable,” which are part of the certificate of title statutory scheme.

Transition Rule

Finally, F.S. §55.208, provides a transition rule that addresses that act’s application to existing judgment liens as distinguished from those acquired after the effective date. In this regard, the new law makes it clear that all judgment lien certificates effective as of September 30, 2023, are perfected as of October 1, 2023, with respect to payment intangibles and accounts and the proceeds thereof. The transition provision also confirms that pre-existing, perfected security interests or other liens retain their priority in the same intangible property of the judgment defendant.

Conclusion

In summary, Florida has modernized and expanded the remedies of a judgment creditor in its efforts to collect against a judgment defendant and clarified the protocols for the judgment creditor to ensure its judgment lien is more likely to be effective against the defendant’s car or boat, subject to the protocols and limitations. The act also provides certain “checks and balances” that apply to the affected parties and generally requiring court supervision of a creditor’s lien enforcement actions against the now attachable intangible property. Time will tell whether these changes will have any material impact on a judgment creditor’s post-judgment collection actions.

This column is submitted on behalf of the Business Law Section, Mark Stein, chair, and Daniel Etlinger, editor.