Opinion
22-mc-80061-SINGHAL/MCCABE
05-26-2022
MATTHEW ORSO, as successor trustee to Kenneth D. Bell in his capacity as court-ed receiver for Rex Venture Group, LLC, d/b/a ZeekRewards.com, Plaintiff, v. GERARD ST.-SIMON, Defendant, v. WELLS FARGO BANK, N.A., et al., Garnishees.
Gerard St. Simon, pro se.
Gerard St. Simon, pro se.
REPORT & RECOMMENDATION
RYON M. MCCABE, U.S. MAGISTRATE JUDGE
THIS CAUSE comes before the Court upon the Registration of Foreign Judgment against Defendant Gerard St.-Simon, which was referred to the undersigned by United States District Judge Raag Singhal. [DE 1; 14]. Having reviewed Defendant's Claim of Exemption and Request for Hearing (“Claim of Exemption”) and being otherwise fully advised in the premises, the undersigned recommends that the Writ of Garnishment directed to Garnishees Truist Bank and Wells Fargo Bank be dissolved and Defendant's Claim of Exemption be denied as moot in light of the dissolution.
I. DISCUSSION
On August 14, 2017, the United States District Court for the Western District of North Carolina entered a Final Judgment (“the Judgment”) in favor of Plaintiff and against each member of a Defendant Class, including Defendant. [DE 1; 3; 4]. On December 16, 2019, the Judgment was assigned to Movant Nationwide Judgment Recovery. [DE 1; 3; 4]. On January 11, 2022, Movant registered the Judgment in this Court. [DE 1]. On January 17, 2022, Movant filed Motions for Writ of Garnishment After Judgment directed to Garnishees Truist Bank and Wells Fargo Bank. [DE 3; 4]. The unsatisfied amount of the Judgment is $2,510.03 plus post-judgment interest pursuant to 28 U.S.C. § 1961. Id. Thereafter, a Writ of Garnishment was issued to Garnishees Truist Bank and Wells Fargo Bank. [DE 5; 6].
On May 5, 2022, Defendant filed a Claim of Exemption for two statutory exceptions: (i) the funds are his Social Security benefits, and (ii) he is the “[h]ead of family wages” and provides “more than one-half of the support for a child or other dependent and has net earnings of $750.00 or less per week.” [DE 13].
In Florida, the relevant standards for collection of money judgments are set forth in section 77.041(3), Florida Statutes, which provide as follows:
Upon the filing by a defendant of a sworn claim of exemption and request for hearing, a hearing will be held as soon as is practicable to determine the validity of the claimed exemptions. If the plaintiff or the plaintiff's attorney does not file a sworn written statement that answers the defendant's claim of exemption within 8 business days after hand delivering the claim and request or, alternatively, 14 business days if the claim and request were served by mail, no hearing is required and the clerk must automatically dissolve the writ and notify the parties of the dissolution by mail.§ 77.041(3), Fla. Stat. “Florida law requires garnishment statutes . . . to be strictly construed.” Allen v. Robert F. DeLuca, M.D., P.A., 9:18-CV-81265, 2020 WL 1832323, at *2 (S.D. Fla. Mar. 25, 2020), report and recommendation adopted, 18-81265-CIV, 2020 WL 1828510 (S.D. Fla. Apr. 13, 2020) (citation omitted).
Here, Defendant filed his Claim of Exemption in the record on May 5, 2022, with proof that he served his Claim of Exemption no later than May 3, 2022. [DE 13]. Thus, even calculated from the filing date, Plaintiff's response is overdue. Plaintiff therefore failed to comply with section 77.041(3), and the Clerk of Court “must automatically dissolve the writ and notify the parties of the dissolution by mail.” § 77.041(3), Fla. Stat.; Holloway v. City of Orlando, No. 15129, 2017 WL 4773356, at *1-2 (M.D. Fla. Oct. 4, 2017).
II. RECOMMENDATION
For the reasons stated, the undersigned RECOMMENDS that the District Judge DIRECT the Clerk of Court to dissolve the Writ of Garnishment directed to Garnishees Truist Bank and Wells Fargo Bank and DENY AS MOOT Defendant's Claim of Exemption in light of the dissolution.
III. NOTICE OF RIGHT TO OBJECT
The parties shall have fourteen (14) days from the date of being served with a copy of this Report and Recommendation within which to file written objections, if any, with United States District Judge Raag Singhal. Failure to file objections timely shall bar the parties from a de novo determination by the District Judge of an issue covered in the Report and Recommendation and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1.
RESPECTFULLY SUBMITTED.