Saturday, December 29, 2012

When a general denial is not good enough

Moving past the statutory language of Florida's Head of Family garnishment exemption brings me to read a few Florida appellate court decisions on the subject. The first opinion I encounter is Caproc Third Avenue, LLC v. Donisi Insurance, Inc., 67 So.3d 312, 313 (FL 4th DCA, 2011), and I see how easy it might be for a non-lawyer to misread the meaning of the court's decision.

Judgment debtor defendant Donisi filed a sworn affidavit to claim the Head of Family exemption and the creditor's attorney swore an oath to nothing but a general denial.

As the Florida District Court of Appeal, Fourth District, described it:
". . . . Caproc’s attorney, Justin D. Jacobson, Esq., responded by executing an affidavit entitled “Plaintiff’s Denial Under Oath of Defendant’s Affidavit for Exemption from Garnishment Under Florida Statute § 222.12. The attorney’s affidavit stated that he personally appeared before a notary and that, after being duly sworn, pursuant to section 222.12, Florida Statutes (2009), 'Plaintiff hereby denies under oath that the Defendant is entitled to the exemption claimed in the Affidavit for Exemption.' The judgment debtor moved to strike the attorney’s affidavit on the grounds . . . . " [emphasis added]
The trial court judge granted Donisi's Motion to Strike (See note below) Caproc's affidavit and the appellate court agreed that the affidavit was legally insufficient. While the appeals court discussed in some detail the statutory necessity of plaintiff itself to swear the opposing affidavit, I contend this is the least significant aspect of the the opinion.

If Caproc's attorney had produced credible specific evidence that Donisi had falsified his claim of exemption, I doubt that any Florida judge would care much who signed the affidavit. Every good judge would want to hear more, at a formal court evidentiary hearing.

In other words, even if plaintiff Caproc had made the exact same affidavit, I'd argue the affidavit was still legally insufficient.


Note: Judges generally do not take significant action in a case unless one of the parties makes a formal request, either in writing or orally in open court and on the record. If there is a problem with an opposing party's affidavit, a Motion to Strike is one good way to bring it to the court's attention.