From Judgment to Lien: Litigation Lawyers Miami

EventsCongratulations! After a hard fought and probably expensive battle, you’ve been awarded a final judgment in your favor. What, if any, good does that piece of paper do for you? If the judgment debtor owns non-exempt real property that is subject to levy, then your final judgment can operate as a lien on real property that must be satisfied in the event the real property is sold or ownership transferred. But that lien protecting your interest is not automatic. In order to make that lien a reality, the judgment creditor must comply with the requirements of Florida Statutes § 55.10. Although there are several hurdles that a judgment creditor must clear in order to have a valid lien, they are not inordinately high. And, in any event, no lien against real property is valid beyond twenty (20) years from the date on which the judgment or decree on which it rests was entered.

First, in order to properly serve as the basis for a valid judgment lien, the judgment must be a Florida judgment. That is, the judgment must be from a Florida state court or from a United States District Court in Florida. Judgments issued by foreign courts (i.e., courts from outside the State of Florida) may serve as the basis for a valid lien on property within Florida, but only once the foreign judgment is established as a Florida judgment by domestication.

Second, in order to operate as a judgment lien, the judgment must be final. Simply titling the judgment as a “final judgment” is insufficient. To be truly “final,” the judgment must contain conclusive and customary language establishing that judicial labor is at an end and the order is truly dispositive and final. That is, since execution is not permitted on judgments that do not determine with finality the rights and liabilities of the parties, in order to give rise to a valid lien the “final judgment” must not leave questions open for judicial determination. For example, a judgment determining liability but not determining the amount of damages can not serve as the basis for a valid lien under Florida law.

Third, there must be real property within the State of Florida against which the lien will attach. The real property in Florida must be owned by the judgment debtor in such a manner that it is non-exempt and subject to levy. For example, although some exceptions may apply, generally if the judgment debtor’s property is homestead property, owned by the entireties, or subject to a bankruptcy proceeding, then it may not be subject to levy and the judgment lien may not attach to the property. If the judgment debtor owns property outside the state, lien opportunities may still be present there, but only following “domestication” of the Florida judgment in the foreign state.

From Judgment to Lien: Litigation Lawyers Miami

Fourth, in order for any judgment to operate as a lien, a certified copy thereof must be recorded in the official records of the county in which the real property is located. The original judgment need not be recorded, but a plain copy will not suffice. If a final judgment issues from a court in Martin County, it will operate as a lien on non-exempt real property owned by the judgment debtor in Martin County if a certified copy of the final judgment is recorded in the official records thereof. Additionally, though, the Martin County court’s final judgment will also operate as a lien on non-exempt real property owned by the judgment debtor in Broward County if a certified copy of the final judgment is recorded in the official records of Broward County.

Fifth, in order to operate as a lien against non-exempt real property, the recorded judgment must contain the name and address of the person (or entity) that has the lien. That information should ordinarily be included on the judgment form submitted to and entered by the court, along with the name, address and federal taxpayer identification number of the judgment debtor. It is not enough that the final judgment contain the name and address of the judgment creditor’s attorney; it must contain information describing the actual lienholder. However, if it is absent from the face of the order, the judgment holder can comply with the statute by simultaneously recording an affidavit setting forth the information. It is imperative to note, though, that simultaneously means at the same time. A delay of 30 days in filing the curative affidavit has been held to invalidate a lien. In that case, it is best to rerecord a certified copy of the final judgment to accompany the after-filed affidavit.

Now What Happens With Your Lien?

If the foregoing hurdles are negotiated, then the judgment creditor will have a valid lien on non-exempt real property owned by the judgment debtor. The lien will be effective as of the date that the final judgment was recorded in the county’s official records. Once the judgment is properly recorded, the judgment lien takes priority over any liens recorded at a later date and it maintains that priority so long as the lien exists.

Depending on when the judgment was recorded, the initial lien will be for a period of either seven (7) or ten (10) years. “Modern” judgments recorded on or after July 1, 1994 have an initial term of ten (10) years. The term of the lien may be extended for another ten (10) years by, prior to the expiration of the initial term, rerecording a certified copy of the final judgment and simultaneously recording an affidavit with the current name and address of the lien holder. If extended in this manner, the priority position of the lien is unaffected.

If the original judgment lien lapses without an extension being filed, the lien ceases to exist. However, the judgment creditor may nevertheless rerecord the final judgment at a later time creating a new judgment lien. This new lien will not have the same priority as the lapsed lien, though; it will have priority only as to any subsequent liens and will only be effective as to property held by the debtor at the time the new lien is created. And, as noted at the beginning, the maximum life of the lien can only be twenty years from the date the final judgment was entered.

Oftentimes successful litigants find themselves with a judgment but with no ready source of assets from which to satisfy it. Judgment liens against real property provide a powerful means to lay claim to a judgment debtor’s valuable assets for the benefit and protection of the judgment creditor.

From Judgment to Lien: Litigation Lawyers Miami was last modified: February 5th, 2016 by Alexander Barthet

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