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. NCO Financial Systems, Inc. v. McClintock, Appeal No. 06-0044AP-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
NCO FINANCIAL SYSTEMS, INC.,
as assignee of Citibank,
vs. Appeal No. 06-0044AP-88B
PAUL W. McCLINTOCK, JR.,
Judge Myra Scott McNary
Erik S. Kardatzke, Esquire
Attorney for Appellant
ORDER AND OPINION
THIS CAUSE came before the Court on appeal, filed by NCO Financial Systems, Inc., as assignee of Citibank (NCO), from the Order Denying Plaintiff’s Motion for Entry of Final Judgment with Execution Withheld, entered June 21, 2006. 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 NCO, pursuant to an assignment from Citibank, filed a complaint against Paul W. McClintock, Jr. (McClintock) seeking to recover on an unpaid credit card debt. NCO and McClintock entered into a Stipulation for Entry of Final Judgment Execution Withheld that provided McClintock would pay a principle sum of
$ 9,126.25, 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, McClintock 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.
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
Paul W. McClintock, Jr.