County Civil Court: CONTRACTS –
garnishment of wages – debtor can waive statutory exemptions to garnishment of
wages – trial court erred in not recognizing parties’ contract in which the
debtor agreed to waive any garnishment defenses under Florida Statutes, section
222.11 - order reversed. Portfolio Acquisitions, LLC v. Deardorff, Appeal No. 06-0011AP-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
PORTFOLIO ACQUISITIONS, LLC,
vs. Appeal No. 06-0011AP-88B
Judge Myra Scott McNary
Erik S. Kardatzke, Esquire
Attorney for Appellant
ORDER AND OPINION
THIS CAUSE came before the Court on appeal, filed by Portfolio Acquisitions, LLC (Portfolio), from the Order Denying Plaintiff’s Motion for Entry of Final Judgment with Execution Withheld, entered December 21, 2005. Upon review of the Initial Brief, the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.
The record shows that Portfolio, pursuant to an assignment from Direct Merchants Credit Card Bank, filed a complaint against Stephen Deardorff (Deardorff) seeking to recover on an unpaid credit card debt. Portfolio and Deardorff entered into a Stipulation for Entry of Final Judgment Execution Withheld that provided Deardorff would pay a principle sum of $ 9,619.14, plus interest, attorney’s fees, and costs. Pertinent to this appeal, # 6 of the Stipulation states: “In the event of Defendant(s) default under the terms of the Stipulation and Plaintiff obtains an execution order, the Defendant(s) hereby agree(s) to waive any garnishment defenses that are waivable under Florida Statute 222.11.” The trial court refused to approve the Stipulation finding that it violated public policy against waiving garnishment exemptions in debtor-creditor relationships.
The sole issue raised on appeal is
whether the trial court erred in refusing to enter a final judgment approving
the parties’ Stipulation. In addressing
this issue, the Court finds that Florida Statute, section 222.11(2)(b), states
that exemptions applicable to the garnishment of wages “may not be attached or
garnished unless such person has agreed
otherwise in writing.” (emphasis
added). In applying the plain and
ordinary meaning of the words used, the Court finds that this section clearly
anticipates that a party subject to a garnishment action may enter into a
contract giving up the protections afforded by the statutory exemptions. See Gallagher v.
In this case, the terms of the Stipulation
are clear and were not contested by either party. Indeed, as noted above, Deardorff declined to
defend the trial court’s ruling on appeal.
The Court finds that, under these facts, applying the exemption waivers
set forth in section 222.11(2)(b) will not lead to an unreasonable result and
concludes that the trial court erred in not entering final judgment based on
the terms of the parties’ Stipulation. The Court finds that this conclusion is
consistent with its decision in MRC Receivables Corp. v. Klatz, Appeal
No. 06-0025AP-88A (
Therefore, it is,
ORDERED AND ADJUDGED that the Order Denying Plaintiff’s Motion for Entry of Final Judgment with Execution Withheld is reversed and this cause is remanded for action consistent with this Order and Opinion.
ORDERED in Chambers, at
DAVID A. DEMERS
Circuit Judge, Appellate Division
ANTHONY RONDOLINO PETER RAMSBERGER
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Judge Myra Scott McNary
Erik Stanley Kardatzke, Esquire
 The Court notes that the Appellee, Stephen Deardorff, failed to file an Answer Brief even after being directed to do so. However, the Court cannot not reverse the trial court based solely on Deardorff’s failure to file an Answer Brief and must review this case on the merits of the Initial Brief and the appellate record. See State, Board of Optometry v. Florida Society of Opthalmology, 538 So.2d 878, 888 (Fla. 1st DCA 1988)(explaining that appellate court must review case on the merits even when no answer brief is filed).