Regions Bank v. Hyman

• Decision Date: 07 March 2015
• Docket Number: Case No. 8:09–CV–1841–T–17MAP.
• Citation: 91 F.Supp.3d 1234
• Parties: REGIONS BANK, etc., Plaintiff, v. Larry S. HYMAN, etc., et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

91 F.Supp.3d 1234

REGIONS BANK, etc., Plaintiff
v.
Larry S. HYMAN, etc., et al., Defendants.

Case No. 8:09–CV–1841–T–17MAP.

United States District Court, M.D. Florida, Tampa Division.

Signed March 7, 2015.

91 F.Supp.3d 1237

Allison Doucette, John A. Anthony, Stephenie Biernacki Anthony, Edmund S. Whitson, III, Megan Marlowe Greene, Anthony & Partners, LLC, Tampa, FL, for Regions Bank, etc.

Herbert Roy Donica, Donica Law Firm, PA, Tampa, FL, for Larry S. Hyman, etc.

ORDER

ELIZABETH A. KOVACHEVICH, District Judge.

This cause is before the Court on:

Dkt. 218	Claim of Exemption
	Dkt. 255	Motion to Dissolve Writs of Garnishment
	Dkt. 273	Response
	Dkt. 289	Transcript of Motion Hearing of 7/8/2013
	Dkt. 347	Status Report
	Dkt. 356	Amended Status Report
	Dkt. 363	Transcript of Evidentiary Hearing of 8/20/2013
	Dkt. 382	Report and Recommendation
	Dkt. 384	Objections (Regions Bank)

91 F.Supp.3d 1238

A Final Judgment was entered in favor of Plaintiff Regions Bank (“Regions”), and against Defendants. (Dkt. 177). The Final Judgment has been affirmed on appeal. (Dkt. 444, 455). Regions Bank sought to collect the judgment by garnishing Defendant Kearney's bank accounts. USAmeribank filed an Answer and Platinum Bank filed an Answer (Dkt. 212, Dkt. 249). Plaintiff Regions filed a Reply to Platinum Bank's Answer. (Dkt. 261).

Defendant Bing Charles W. Kearney, Jr. (“Kearney”) moved to dissolve two writs of garnishment, (USAmeribank Writ and Platinum Bank Writ) (Dkt. 255). Plaintiff Regions Bank opposed the Motion to Dissolve (Dkt. 273).

The assigned Magistrate Judge conducted a Motion Hearing on July 8, 2013, and also took testimony of witnesses Bing Kearney, Justin Rowlson, and James M. Reed.(Dkt. 289). An evidentiary hearing was conducted on August 20, 2013, at which testimony was taken from Bing Kearney, William Lance Ponton, Yazmin Tolzman, Wendy Blankenhorn, and Camilla Gabertini. The assigned Magistrate Judge has entered a Report and Recommendation in which it is recommended that the two writs of garnishment be dissolved. As to the USAmeribank Writ, the assigned Magistrate Judge found that based on Plaintiff's noncompliance with notice provisions of the garnishment statutes, the writs should be dissolved, applying Zivitz v. Zivitz, 16 So.3d 841, 847 (Fla. 2d DCA 2009), Cullen v. Marsh, 34 So.3d 235 (Fla. 3d DCA 2010) ; Rudd v. First Union Nat. Bank of Florida, 761 So.2d 1189, 1192 (Fla. 4th DCA 2000) (reversed ruling that motion to dissolve was premature and remanding to allow debtor to file motion to dissolve and assert exemptions). The assigned Magistrate Judge further found that the Answer of USAmeribank was deficient and deprived the other owners of their statutorily required notice. The assigned Magistrate Judge further found that when Plaintiff Regions was advised of the other owners of the six accounts, Plaintiff did not serve them, and this failure further justifies granting the dissolution of the writ. Based on the recommendation to dissolve the two writs of garnishment, the assigned Magistrate Judge found it was not necessary to address the Claims of Exemption, but did so in the interest of completeness. The assigned Magistrate Judge found that the signature card form is ambiguous and confusing as to the form of ownership, such that he could not find that the Kearneys expressly chose the joint-tenancy box. The assigned Magistrate Judge further found by clear and convincing proof that when the Kearneys opened the 056 account, they intended to open a tenancy by the entireties account.

As to the Platinum Bank Writ, the assigned Magistrate Judge found that Plaintiff Regions did not serve the notice required by Sec. 77.055, F.S., on the owners disclosed by the Answer of Garnishee. The assigned Magistrate Judge concluded that the account owners disclosed in the Answer were foreclosed from timely moving

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to dissolve the Writ, and therefore the Platinum Bank Writ should be dissolved. See Beardsley v. Admiral Ins. Co., 647 So.2d 327 (Fla. 3d DCA 1994) (prior panel affirmed denial of motion to dissolve writ; the factual dispute as to exempt status of funds should proceed to trial; reversing final judgment and remanding for compliance with statutory procedures). The accounts at Platinum Bank are held in the names of Clayton Kearney and Bing Kearney.

Judgment Debtor Kearney moved to dissolve the writ for failure to comply with the requirements of the garnishment statutes. Clayton Kearney filed an Affidavit in support of the Motion to Dissolve on the same day that the Motion was filed, stating that he is the owner of the funds in the accounts, and Bing Kearney is not.

Plaintiff Regions Bank has filed Objections to the Report and Recommendation.

In the Status Report, Plaintiff Regions Bank advises:

USAmeribank

The Writ of Garnishment remains at issue as to judgment debtor Kearney, but not as to judgment debtors Seeger or Harris. Kearney, Harris and Seeger filed Claims of Exemption, but no money is owed to Seeger or Harris. Discovery confirmed money owed to Kearney. The Amended Status Report states that the Writ remains at issue as to Kearney, but not as to Seeger or Harris.

Bank of Tampa

The Writ of Garnishment remains at issue as to Kearney, Harris and Seeger pending discovery; no exemption has been filed and no motion to dissolve was filed. The Amended States Report states that the Writ is not at issue as to Kearney, Harris and Seeger.

Wells Fargo

The Writ of Garnishment remains at issue as to Kearney, Harris and Seeger pending discovery. Harris filed an untimely of exemption. Seeger and Kearney have not filed Claims of Exemption. The Amended Status Report states that the Writ is not at issue as to Kearney, Harris and Seeger.

Platinum Bank

The Answer of Platinum Banks states It is indebted to Kearney, but not to Harris or Seeger. Discovery confirmed the indebtedness to Kearney but not to Harris and Seeger. The Amended Status Report states that the Writ remains at issue as to Kearney, but not as to Harris and Seeger.

I. Standard of Review

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1) ; Williams v. Wainwright, 681 F.2d 732 (11th Cir.1982), cert. denied, 459 U.S. 1112, 103 S.Ct. 744, 74 L.Ed.2d 964 (1983). In the absence of specific objections, there is no requirement that a district judge review factual findings de novo. Garvey v. Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir.1993). However, a district judge must make a de novo determination of those portions of the report and recommendation to which an objection is made. 28 U.S.C. § 636(b)(1)(C). District judges must “give fresh consideration to those issues to which specific objections have been made by a party.” Jeffrey S. by Ernest S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir.1990) (internal citations omitted). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper–Houston v. S. Rwy. Co., 37 F.3d 603, 604 (11th Cir.1994) ; Castro Bobadilla v. Reno, 826 F.Supp. 1428, 1431–32 (S.D.Fla.1993), aff'd, 28 F.3d 116 (11th Cir.1994).

91 F.Supp.3d 1240

II. Discussion

A. Sequence of Events

As to Defendant Bing Kearney, Jr., the docket for this case includes the following:

1. USAmeribank Writ

Dkt. 199	Order granting issuance of Writ, filed 5/16/2013
Dkt. 206	Writ to USAmeribank returned executed, filed 5/20/2013, (Writ served on 5/17/2013)
Dkt. 211	Certificate of Service filed 5/28/2013 (Writ, Motion, Notice)
Dkt. 212	Answer of USAmeribank, filed 5/24/2013

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