A loan

[samgiaalymic]

I am owed $3,500.00 by a man and woman that has sent me numerous emails saying that I would be paid but I have not been paid. Emails ALL admist to this loan that was given to her in New Jersey because she lived here. They since have moved to Florida but the money was given to them when they resided in New Jersey. I would like to file a small claims because I am not getting my money, and the emails are 100% on my side, but can I file these papers in New Jersey, even though they are residing in Florida now. I have waited a long time and the law states that I have 6 years to file any thing against them. I don't think I need a lawyer for this, but if I have to get one I will. I have been very patient with them and have listened to story after story, but with no payment. Can anyone tell me if I can file these paper for small claims court in New Jersey. They have purchased a home in Florida and I do have the address.

 

[fredrikklaw]

Long Arm Statutes!

First and foremost, you might want to look up your state's statute of limitation for commencing such actions, because 6 years does not sound right at all! And no; you do not need an attorney for what will be a pretty straight forward case for you; and yes, you can file in New Jersey since the cause action arose in the locale.

But the main hurdle to overcome in your case is the determination as to whether a New Jersey state court can exercise personal jurisdiction over a non-resident defendants and the proscribed methods for service of process on a non-resident defendant. For this, you have to consult your state's Long Arm Statutes Handbook which sets out the specific grounds on which New Jersey can force a non-resident defendant to defend against an action filed in New Jersey.

Now, assuming you have both subject matter and personal jurisdiction, you go ahead and file your case and notify the defendants in Florida proper, and then it's, game on! I cannot imagine the defendants either answering your summons, making any kind of a response, or otherwise appear in the case in any earthly way, in which case you will apply to the court for entry of defendants default and a default judgment in your favor.

This is where things get really interesting because all you will have now is a piece of paper that shows judgment in your favor for so many dollars and cents which you will have to collect from these good folks in sunny Florida, and you have to do it on your own. SOLO.

But good fortune smiled on you and the defendants shot themselves in all 10 toes the moment they purchased that property in Florida, and you have the U.S. Constitution to thank for your good tidings. The U.S. Constitution's Full Faith and Credit clause enables a judgment creditor to cross state lines and present to a Sister State for a forced execution of a judgment with the same weight and authority as if the judgment was obtained in that sister state.

So should you prevail and obtain a favorable judgment, just pop down to Florida and present your claim to a court and demand its execution at which time the defendants newly acquired property becomes fair game and can be levied against.

Now, who was it who said "you can run, but you cannot hide"?

fredrikklaw

 

[army judge]

Not so fast, counsel, not so fast.

You can't levy against a homestead in FL.

Well, you can if you're from the gubbmint or you hold the mortgage!

But, it isn't that easy for the mortgage holder, either!

OJ didn't (and neither do others) flee to FL just for it's weather and it's lack of income taxes.

This link will describe how incredibly complicated it is to levy against property and what properties are exempt from levy.

http://www.clerk.co.okeechobee.fl.us/PDF Files/How To Collect a Judgment In Florida.pdf



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[fredrikklaw]

Thank You For The Tip!

Thank you (Army Judge) for the correction and also the info-link re levying against Florida properties which I shall definitely visit for some edification on the subject of Homestead which I have to admit I know absolutely nothing about; not even a word.

So would it be right to compare it to the reasons for forming an L.L.C., a Corporation, or a Living Trust? And are all real estate properties in Florida afforded this hands-off provision as a matter of course and automatically or is it something created eons ago by the original purchaser of the piece of real estate which is then grandfathers in down through the years as the property changes ownership?

The reason I ask this is because I read the post over again and did not see any mention of a homestead.

Well, looks like I have some (extra) reading to do.

fredrikklaw

 

[army judge]

fredrikklaw, no worries. I use the term homestead as used in the statute. It means simply, one's home. Certain real and personal property are exempted by statute. Everyone can exempt one home, even if that home is worth $20,000,000. As I recall, you can also exempt furnishings, an automobile, clothing, etc.. As I said, Texas and Florida have more than their share of millionaires.

No, this does limit liability, but not in the way that an LLC does. It was meant to save a person from losing their home to gambling and/or bad debts.

Most U.S. states passed laws granting special protections to family homesteads during the 19th century. The head of a "family" had to reside on land with his or her dependents. Creditors were prevented from seizing the homestead for non-payment of debts. Thus, immediate family members could enjoy those protections even after the death of the family head. this strategy was promoted as a means to deter family poverty and homelessness. The statutes, however, often befuddle contemporary jurists.
Nevertheless, they are upheld today in Texas, Florida, Pennsylvania, California, Iowa, Oklahoma, Kansas, New Mexico, and even Alaska.

Texas has by far the most liberal homestead exemption. It is constitutionally conveyed.

http://www.h-net.org/~rural/threads/dischomesteadlaw.html

http://www.clerk.co.okeechobee.fl.us/PDF Files/How To Collect a Judgment In Florida.pdf

 

[fredrikklaw]

Thanks Again!

Thank you again ArmyJudge for taking the time to expand on your previous post and I genuinely appreciate the nutshell explanation of Homestead as to its core benefit and deterrent hands-off values, depending of course on what side of the property line we stand.

It would be quite interesting to find out California's Homestead statutes.


fredrikklaw

 

[army judge]

fl, I think CA has a dollar limit on the homestead, something like $60k.

I never worry about sides, fl.
Whoever butters my bread, I stand with them.

You're welcome.

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