United States District Court, M.D. Florida, Tampa Division
REPORT AND RECOMMENDATION
B. McCOUN III UNITED STATES MAGISTRATE JUDGE.
CAUSE is before the Court following a status conference
conducted January 11, 2018.
before the Court is Travelers Casualty & Surety Company
of America's Motion for Final Judgment in Garnishment as
to the IRA Account. (Doc. 874). By the motion, Travelers
seeks final judgment in its favor and an order directing
USAmeriBank to release the funds in the “IRA
Account” ending -1122. It claims disbursement of these
funds is now appropriate given that the Eleventh Circuit has
affirmed the district court's ruling that voided
FTBB's priority lien and given the ruling that this
account is not exempt from garnishment. Id.
garnishee USAmeriBank has filed a limited response in
opposition, asserting it is entitled to a determination of
its attorneys' fees expended on the garnishment issue and
to recoup same from the funds prior to disbursement. (Doc.
Charles W. Kearney also filed a response in opposition. (Doc.
877). Mr. Kearney sets out the procedural history and
disputes that he has elected to forego his legal right to
challenge the Court's rulings on the IRA account. He
maintains his claim of exemption to the IRA funds and asserts
he is entitled to file an appeal of any final judgment in
hearing, Travelers indicated that final judgment is now
appropriate on the entirety of the USAmeriBank funds held
subject to the Writ of Garnishment issued by the Clerk on
July 24, 2015. (Doc. 556, hereinafter “the
The parties agreed that consistent with the statute, the
matter of USAmeriBank's fees should be determined prior
to disbursement of the funds, but such does not necessarily
impede the Court's ability to enter final judgment,
provided, however, the Court defer disbursement and reserve
jurisdiction to determine such fees. In addition, at hearing, Mr. Kearney
requested that disbursement of the funds and enforcement of
any final judgment be stayed pending its anticipated appeal
of the judgment.
proceedings in Florida are governed by Chapter 77 of the
Florida Statutes. Florida Statute § 77.083 states,
“Judgment against the garnishee on the garnishee's
answer or after trial of a reply to the garnishee's
answer shall be entered for the amount of his or her
liability as disclosed by the answer or trial.” Fla.
Stat., § 77.083.
noted above, USAmeriBank is indebted to Mr. Kearney in the
total amount of $1, 158, 037.38. (Doc. 577). There is no
dispute as to the amount being held by USAmeriBank. While Mr.
Kearney and others have raised various legal and factual
issues, including claims of exemption, in opposition to the
garnishment of these accounts, all such issues (apart from
USAmeriBank's claim for fees) have now been resolved by
the accounts (-0056, -3695, -0129, -0302, -0020, and -7939)
held pursuant to the Writ were previously addressed in the
Report and Recommendation entered on March 17, 2016 (Doc.
711) and adopted by the district judge on April 8, 2016 (Doc.
719). Therein, the Court granted Travelers' motion for
summary judgment in part and determined that these six
accounts were not exempt from garnishment.
regard to the seventh account, the nominal IRA account, such
was addressed in the Report and Recommendation entered on
August 26, 2017 (Doc. 865) and adopted by the district judge
on September 21, 2017 (Doc. 872). By that Order, the Court
ruled that the USAmeriBank account ending in -1122 is not
exempt from garnishment.
the matter of priority to the USAmeriBank accounts was
addressed in the proceedings supplementary associated with
this case. In those proceedings, the Court ruled that the
purported assignment of Regions' priority lien position
to the USAmeriBank garnished funds to FTBB, LLC, is voided;
that FTBB, LLC, is prohibited from asserting a priority lien
position to these funds in any pending collection action,
including this case and the Regions case (Case No
8:09-cv-1841); and that Travelers, as against FTBB, be
granted a superior lien position to the USAmeriBank funds.
(Docs. 828, 831). FTBB appealed the ruling, but such was
affirmed by the Eleventh Circuit. (Docs. 837, 873).
the above and upon review of the pleadings and papers filed
in this action, the Court finds that Travelers has satisfied
the procedural and notice requirements of the Florida
Statutes. The various claims of exemption and ownership, as
well as FTBB's claim of priority, have been resolved by
the Court in Travelers' favor, and there remains no
impediment to entry of judgment as to the USAmeriBank
such, the undersigned finds that final judgment in
garnishment is now appropriate on all seven of the accounts
subject to the Writ.
I RECOMMEND that:
Travelers Casualty & Surety Company of America's
Motion for Final Judgment in Garnishment as to the IRA
Account (Doc. 874), as orally amended at ...