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I am a Florida resident. I was sued by a credit card company

 
JD 1992's Avatar
  • Answered by:JD 1992
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I am a Florida resident. I was sued by a credit card company for default of payment. A final Judgment was issued against me on 02/17/2011.

Plaintiff filed a motion for continuing writ of garnishment on 04/02/2012. An Order of Continuing writ of Garnishment was obtained on 04/20/2012 and a Writ of Continuing Garnishment was issued on 04/26/2012. My employer and I were served on 06/12/2012. My employer (Garnishee) answered on 06/14/2012. I answered on 06/19/2012 with a CLAIM OF EXEMPTION AS HEAD OF HOUSEHOLD. I also filed a sworn affidavit of Head of Household on 06/22/2012.

The Plaintiff's attorney responded on 06/26/2012 denying the facts set forth in my affidavit.

I would like to file an EMERGENCY MOTION TO DISSOLVE THE WRIT based on two arguments.

Firstly, I am indeed a Head of Household as defined by the Florida Statutes. I, my wife and young son (8yrs old) live in one household and I provide over 50% of my son's support.

Secondly, a party's attorney is legally insufficient to execute a sworn affidavit under Florida Statute 222.12. An affidavit denying the facts set forth in my Affidavit of Head of Household must be executed by the party who sued out the process and not the party's attorney. The plaintiff must deny under oath the facts set forth by the debtor. See Caproc Third Ave., L.L.C. v. Donisi Ins Inc., and Donisi, 4D09-4792 JUNE 1, 2011: FOURTH DISTRICT COURT of APPEAL

Can you assist me with the wording of the EMERGENCY MOTION TO DISSOLVE THE WRIT? Also, are other motions, affidavits or supporting documents required to finalize this case?

Sincerely,

 

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State/Country relating to question: Florida

Submitted: 326 days ago.
Category: Consumer Protection Law
Value: $79
Status: CLOSED
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Expert:  JD 1992 replied325 days and 23 hours ago.

I watched this question for a while and since nobody picked up I didn't want to leave you hanging.

We can't provide wording for you because that would cross the line from providing legal information to providing legal advice. I'd be glad to help you by answering any questions you have and also by discussing what else you might need.

In addition, are you interested in getting the lawyer kicked off the case? If so, we can discuss that as well.

I will be logging off in just a few minutes but can pick up and continue in the morning or I can opt out and see if anybody else picks up to help you with the wording, although I am pretty sure that won't happen because of the website rules and the law.

Customer replied325 days and 21 hours ago.

I understand your wording limitations.


I am doing this Pro Se. Maybe you can help me with the process. I am going to File a motion to dissolve the writ tomorrow.

Should I also ask for final judgment or something that gives me definite closure of the case?

Accepted Answer

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Expert:  JD 1992 replied325 days and 11 hours ago.

Other than an Objection to Write of Garnishment or a Motion to Quash/Dissolve Writ of Garnishment there really is no way to do anything else. The reason is that there is no procedure.

Once a final judgment was obtained the only way to do anything "final" is to either pay the judgment itself or somehow get the judgment declared invalid and that is almost impossible to do.

There really is no magic language that has to be used in a motion like you're going to file. You simple set forth the exemption you are claiming that makes the garnishment invalid, cite to the

I'm sure you're aware but just in case the code that cover this can be found at http://law.justia.com/codes/florida/2005/TitleVI/ch0077.html

There is a form to use to claim your exemptions, I'm sure it is very similar to what you have already filed since it is almost teh same as the one in the rules, at http://www.pinellasclerk.org/aspInclude2/SmClaimsPdfs/CTCIV228.pdf

The lawyer may have put himself into a but of a bind as well. The rules prevent him from being a witness in a case where he is the lawyer. Rule 4-3., which can be found at http://www.law.cornell.edu/ethics/fl/code/FL_CODE.HTM
clearly states that a lawyer can't be a witness yet that is exactly what the lawyer is doing by signing an affidavit as to questions of fact. You can use that as 1) a reason to strike the affidavit, although it is doubtful the judge will strike it, 2) a reason to disqualify the lawyer from being the lawyer in the case, or 3) the grounds for a complaint to the State Bar against him.

Please ask any question you have in this thread as I'm sure you have more and don't know if anything I have provided was of any help.

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Expert TypeLawyer
Category: Consumer Protection Law
Pos. Feedback: 98.5 %
Accepts: 1857
Answered: 6/28/2012

Experience: Began practicing in 1992 and handled many cases and trials for consumers

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