OMG- The Sheriff Broke Into My House And Is Taking All My Stuff!
People with potential judgments are often concerned about their household furniture. An attorney defending a judgment creditor sent me an email question concerning an aggressive collection action. The creditor took his client’s deposition as a first step in collecting a civil judgment He said the client testified under oath that while most of his household furnishings were owned jointly with his non-debtor spouse, he did own some antiques which he had inherited from his grandparents. Nothing happened for a couple weeks after the deposition.
One day, while away from home on Christmas vacation, the debtor received an urgent call from a neighbor. The neighbor said that a sheriff and deputies had parked a van in front of the debtor’s house, had broken into the house, and were taking things out of the house. The neighbor also reported that the sheriff showed him a court order authorizing the break in with a title from the collection lawsuit. The creditor’s attorney had obtained a court order at an ex-parte hearing where the debtor’s attorney did not have the opportunity to appear. There was no advance notice to the debtor or to the debtor’s attorney of the hearing or the sheriff’s taking of the debtor’s property.
The debtor’s attorney asked me if there was any law authorizing the creditor to cause a sheriff to break in to a debtor’s home when the debtor was not present without any notice to the opposing counsel. I asked the question to Mr. Mitch Dinkins who is a well-known collection attorney in south Florida. Mr. Dinkins states that judges have discretion to issue break orders ex-parte with no notice. He is not aware of any appellate decisions or statutes authorizing this practice although he believes that the Florida attorney general office issued an opinion supporting the practice. Most judges, he says, will authorize surprise break-in orders when the creditor attorney emphasizes the moveable nature of the debtor’s valuable personal property.
In this particular case I think the creditor acted properly, albeit aggressively, because the debtor had already testified that he owned, and maintained in his house, valuable personal property owned individually. Most married debtors state that all furniture and other belongings in their homestead is owned jointly with their non-debtor spouse. In that case, a creditor would probably not invade a home without notice to take property the debtor has already claimed to be owned as tenants by entireties. A non-debtor spouse, or the debtor, might have a cause of action against a creditor who seized what he knew to be exempt entireties property. The lesson is that if a creditor asks you who owns the stuff in your house, be careful how you answer the question.
