91 F. Supp. 3d 1234
M.D. Fla.2015Background
- Regions Bank obtained a final judgment against Bing C.W. Kearney, Jr.; Regions sought post-judgment garnishment of multiple bank accounts at USAmeriBank and Platinum Bank. The final judgment was affirmed on appeal.
- USAmeriBank and Platinum Bank filed answers to garnishments; USAmeriBank’s answer did not list co-owners, while Platinum’s answer identified co-owners and account details.
- Kearney filed claims of exemption and moved to dissolve two writs of garnishment (USAmeriBank and Platinum Bank) largely on statutory-notice and ownership (tenancy by the entireties, TBE) grounds.
- The magistrate judge recommended dissolving both writs and found by clear and convincing evidence that the 056 USAmeriBank account was held as tenancy by the entireties.
- The district court reviewed objections by Regions, held hearings, and sustained Regions’ objections as to notice defects but found the 056 account was not TBE because the signature card unambiguously disclaimed TBE ownership.
- The court denied Kearney’s motion to dissolve both writs based on notice noncompliance, determined the 056 account was not exempt, and left ownership disputes for remaining accounts to be resolved at trial or on summary judgment.
Issues
| Issue | Plaintiff's Argument (Regions) | Defendant's Argument (Kearney) | Held |
|---|---|---|---|
| 1) Whether failure to comply with Ch. 77 notice provisions requires dissolution of writs | Late or deficient mailings do not automatically require dissolution; Regions can cure technical defects and should not be penalized by automatic dissolution | Regions’ late/deficient service deprived Kearney (and co-owners) of statutory notice and due process, warranting dissolution | Court sustained Regions’ objections on notice; denied motion to dissolve for statutory notice noncompliance and allowed cure/remediation rather than automatic dissolution |
| 2) Whether Regions had to serve co-owners not disclosed in USAmeriBank’s answer | Regions complied with §77.055 by serving notices to the parties disclosed in the garnishee’s answer; some co-owners had actual notice and filed affidavits | Failure to serve actual co-owners (who were not disclosed in USAmeriBank’s answer) deprived them of the statutory 20‑day right to move to dissolve | Court found USAmeriBank’s answer controlled statutory triggers; sustained Regions’ objections and denied dissolution for this reason, but emphasized garnishee compliance with §77.06 would trigger proper notice obligations |
| 3) Whether the USAmeriBank 056 account is tenancy by the entireties (TBE) and thus exempt from garnishment | The signature card contains an express disclaimer and clearly indicates a multiple-party account (not TBE); no TBE presumption applies; account is not exempt | The depositors intended the account to be TBE; extrinsic evidence (testimony, communications) shows intent to create TBE | Court held the 056 signature card is unambiguous and contains an express disclaimer of TBE; under Beal Bank and related law, the express disclaimer ends the inquiry — 056 is not TBE and is not exempt |
| 4) Remedy: dissolution vs. curing procedural defects | Automatic dissolution is incorrect; technical violations may be cured (re-service or corrected garnishee answer) | Dissolution is required to protect property and procedural due process rights | Court denied dissolution; allowed Regions opportunity to cure notice defects and proceed to adjudicate ownership disputes for remaining accounts at trial or on summary judgment |
Key Cases Cited
- Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla. 2001) (establishes presumption favoring TBE for husband-and-wife joint accounts absent an express disclaimer on signature card)
- Rudd v. First Union Nat. Bank of Florida, 761 So.2d 1189 (Fla. 4th DCA 2000) (statutory notice requirements in garnishment trigger rights to move to dissolve)
- Cullen v. Marsh, 34 So.3d 235 (Fla. 3d DCA 2010) (strict compliance with garnishment notice statutes may require dissolution in some circumstances)
- Beardsley v. Admiral Ins. Co., 647 So.2d 327 (Fla. 3d DCA 1994) (garnishment final judgments reversed where statutory procedures and factual disputes required further proceedings)
- Wexler v. Rich, 80 So.3d 1097 (Fla. 4th DCA 2012) (signature-card evidence and Beal Bank principles applied in contested account-ownership disputes)
- Gigliotti Contracting N. v. Traffic Control Prods. of N. Fla., 788 So.2d 1013 (Fla. 2d DCA 2001) (denial of intervention without leave to comply with statutory claim process can violate due process)
- Akerman, Senterfitt & Eidson, P.A v. Value Seafood, Inc., 121 So.3d 83 (Fla. 3d DCA 2013) (creditor’s due process rights in garnishment proceedings recognized)
- Brown v. Liberty Loan Corp. of Duval, 539 F.2d 1355 (5th Cir. 1976) (Florida post-judgment garnishment procedures satisfy constitutional due process)