If you win a lawsuit for money, you will get a copy of the court’s judgment stating the amount of money the losing party must pay to you. The losing party is called the judgment debtor/defendant, and you, the winner, are called the judgment creditor/plaintiff.
If the judgment debtor does not pay, you are entitled to have the Sheriff seize the judgment debtor’s property. The seizing of property by the Sheriff is called a levy. Once the Sheriff has levied on the property, the Sheriff will then advertise and sell it, and pay you out of the money the Sheriff receives from the sale IF the sale brings enough money to pay all concerned. This process is called an execution. There are a number of steps you must take.
What steps do I have to take?
STEP 1: Once you get your judgment, there are two things you should do. First, obtain a judgment lien by recording aJudgment Lien Certificate with the Department of State, which establishes priority of lien on the judgment debtor/defendant’s personal property. Next, you should obtain a certified copy of your final judgment for recording with the Clerk of the Court in the county where the real property is located. We will explain below why it is a good idea and how you do it.
STEP 2: In order to have the Sheriff levy upon (seize) the judgment debtor’s property, you must first locate the property. The Sheriff will not do this for you. Remember that there are many kinds of property the Sheriff can seize in your behalf. Land and buildings are called real property. Movable things, like cars, boats, furniture, and jewelry are called personal property.
There are some kinds of property the Sheriff cannot levy upon. The main kind of property the Sheriff cannot seize is a person’s home. A person’s homestead is exempt from execution. The judgment debtor may also select personal property worth up to $1000.00 and one motor vehicle worth up to $1000.00 as exempt property. Only people have exemptions. If your judgment is against a corporation or a partnership, the Sheriff can seize all the property in the name of the corporation or partnership. Of course, the Sheriff an only levy on property the judgment debtor truly owns, not property owned by someone else, such as leased property.
STEP 3: Once you have located the property, you take a copy of your judgment to the Clerk of the Court that issued the judgment and ask for a document called a Writ ofExecution. This writ directs the Sheriff to seize property of the judgment debtor/ defendant, which is subject to levy under your Writ of Execution, you then deliver the writ to the Sheriff’s Office in the county in which the property is located. You must also give the Sheriff written instructions called Instructions For Levy. These instructions specifically describe the property (real or personal) and tell the Sheriff where it is located.
The Sheriff will require from you a cost deposit to pay the statutory Sheriff’s fees and cost of levy. You will get your deposit back if the execution is successful and the Sheriff’s sale brings enough to pay all costs. You are responsible for all costs of levy and sale if the Sheriff’s sale does not bring sufficient money to cover the costs. After the costs have been paid, your deposit will be returned to you.
STEP 4: On personal property levies, before the property can be sold, you have to check the Department of State’s internet website at www.sunbiz.org to see if there are any judgment liens filed under the name of the judgment debtor. You must also check for creditors who have filed UCC security interests in the name of the judgment debtor at www.FloridaUCC.com. You then give the Sheriff, pursuant to Chapters 55 and 56 of the Florida Statutes, a signed Affidavit in which you list the names, addresses, and filing dates of everyone who has filed a judgment lien or UCC security interest. Do not confuse this affidavit with the creditor’s affidavit/Sheriff’s certification which covers Writs of Execution docketed and indexed with the Sheriff prior to October 1, 2001, and is required through the g race period of September 30, 2003. Although you are required to check for UCC security interest on record, the Sheriff does not pay UCC security interest from the proceeds of the sale. You must also notify all of these people of the time and place of sale by certified mail prior to the first date of publication. These notices (Sheriff’s levy and Sheriff’s sale) will be sent to you by the Sheriff for your compliance. The Sheriff will ask for an Affidavit of Compliance of Mailing in order to proceed with the sale.
STEP 5: once the notices have been sent by the levying judgment creditor/plaintiff, the Sheriff in a newspaper within your county must properly advertise the sale. At the designated time and place, the Sheriff will sell the property at a public Sheriff’s sale auction. The highest bidder for cash in hand pays the amount of their bid to the Sheriff and becomes the owner of the property advertised and sold at Sheriff’s sale, subject to taxes, prior recorded liens, and any other encumbrances that have been properly recorded against this property.
STEP 6: The Sheriff will pay out the money received from the sale in this order:
First, the Sheriff pays the Sheriff’s fees and costs of levy and sale. If the sale brings enough money to pay all costs, you will get your entire deposit back..
Second, the Sheriff pays you, the levying judgment creditor/plaintiff, $500.00 liquidation costs pursuant to Florida law (whether you spent that much or not) if the Sheriff’s sale brings enough to pay all costs of levy, sale, and liquidation cost.
Third, if somebody obtained a judgment lien before you did (by properly filing with the Department of State pursuant to Florida law effective October 1, 2001), the Sheriff pays that person before paying you because the filing of the judgment lien certificate sets the priority of lien holders in regard to personal property levies. If others have filed before you, the Sheriff must pay every lien holder in the order of filing.
If the Sheriff runs out of money before getting to you, you get nothing more. This explains why it is such a good idea to obtain a judgment lien as soon as possible. If no judgment liens have ever been filed, the Sheriff will pay you first and anything left over will go back to the judgment debtor. Therefore, it is still a good idea to file as soon as possible. If you do not, there is always a chance that somebody might file their judgment lien certificate prior to your filing and come in ahead of you.
How do I obtain a judgment lien on the debtor's personal property?
You can obtain a judgment lien on all the judgment debtor’s personal property located anywhere in the state by filing a Judgment Lien Certificate with the Department of State. To get the proper form, you must go on the Internet to the department’s website: www.sunbiz.org. You can download the form from the website or have the form mailed to you. Once you have filled out the form, you can either file it electronically using a major credit card or mail it to the department with the filing fee. Electronic filing is recommended to avoid delay in getting your judgment lien recorded.
CAUTION: These liens do not last forever. They lapse, meaning they are removed after 5 years. If there are liens ahead of you, you will move toward the front of the line as the others lapse. But your lien will eventually lapse, too. Because of this, do not procrastinate waiting for another creditor/plaintiff to levy on the debtor’s property for you. After 5 years, you can file again (one time only) for a second Judgment Lien Certificate, which will establish a new priority of lien holders.
How do I obtain a judgment lien on the debtor's real property?
You can obtain a judgment lien on the judgment debtor/defendant’s real property by recording a certified copy of your judgment in the real estate recording section of the county in which the property is located with the Clerk of Court. These liens last for 10 years and they can be continued for another 10 years. At the time you request a levy, the Sheriff will require an up to date title search on the real property, which reveals the priority of liens recorded on the real property.
NOTE: Pursuant to the new law effective October 1, 2001, the Sheriff no longer dockets and indexes Writs of Executions. The execution is presented to the Sheriff of the county where the property is located at the time the levy is requested. After levy and sale or payment of the Writ of Execution, the Sheriff will make his return to the Clerk of Court of issuance. IT IS THE RESPONSIBILITY OF THE JUDGMENT CREDITOR/ PLAINTIFF to update the database of the Department of State with an Amended Judgment Lien Certificate. The Sheriff’s documents will be sent to the Clerk of Court of the court of issue to keep the case file current.
NOTE: One (1) Writ of Execution is issued from the court of issuance and sent to the Sheriff where the property is located for levy process. If there is property in another county also, when the first levy is completed and proceeds from the sale indicate a deficiency or the levy is unsuccessful, the original Writ of Execution may be removed from that Sheriff’s file by written request of the levying judgment creditor/plaintiff and sent to the Sheriff of the county in which the additional property of the judgment debtor/defendant is located to request another levy process until the Writ of Execution is satisfied in full either by levy and sale or by satisfaction of the writ by the judgment debtor/defendant.
If you need information on filing of judgment lien certificates, call the Department of State at: 1-850-245-6039.
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