United States District Court, M.D. Florida, Tampa Division
HONORABLE CHRISTOPHER P. TUITE United States Magistrate Judge
matter is before the Court on Travelers Casualty &
Surety Company of America’s Amended Motion for
Proceedings Supplementary, Motion to Void Bing
Kearney’s Fraudulent Transfer of His Interest in
Property, Motion for Leave to File a Notice of Lis Pendens
and Complaint, and Motion to Implead Clayton Kearney and Olga
Kearney. (Doc. 970). The Court heard oral argument on
these motions on December 2, 2019. For the reasons set forth
below, Travelers’ motion is granted in part and denied
October 2011, the Court entered Judgment in favor of
Travelers and against Bing Charles W. Kearney, Jr. (Bing
Kearney) and others in the amount of $3,750,000. (Doc. 244).
Since then, according to Travelers, it has been unable to
collect on the Judgment, despite a number of attempts to do
so. As part of its ongoing collections efforts, Travelers
moved in October 2019 pursuant to Federal Rule of Civil
Procedure 69 and Section 56.29 of the Florida Statutes to
initiate proceedings supplementary with respect to certain
real property, in which Bing Kearney and his son, Clayton
Kearney (Clayton), each held a 50% interest. (Doc. 968). In
its motion, Travelers requested permission to file a lis
pendens against this property, as well as a complaint
seeking a levy and sale of the property in aid of execution
on the Judgment. Travelers also requested that it be allowed
to implead Clayton and that Bing Kearney be enjoined from
alienating his interest in the property while the proceedings
supplementary were pending. Id.
hours of Travelers filing its motion, Bing Kearney recorded a
Quit Claim Deed transferring his interest in the property to
Clayton and his wife, Olga.(Doc. 969-1). In his subsequent
response to Travelers’ motion, Bing Kearney argued that
Clayton purchased the property with insurance proceeds he
received as a result of a motor vehicle accident in which he
was almost killed, and that Bing Kearney’s name had
been included on the title solely so that he could maintain
“parental oversight” of Clayton’s
management of the property while he recovered from his
injuries. (Doc. 969). Bing Kearney further asserted that the
property, now fully owned by Clayton and Olga, was the
couple’s homestead and was therefore protected against
a forced sale by the Florida Constitution. Id.
the change in circumstance outlined in Bing Kearney’s
response, Travelers filed the instant amended motion. (Doc.
970). In this submission, Travelers requests relief similar
to that outlined in its initial motion, except that it now
seeks to implead both Clayton and Olga and to void what it
characterizes as Bing Kearney’s fraudulent transfer of
the property to the couple.
response, Bing Kearney reiterates that he never held a
beneficial interest in the property and that his transfer of
the property to Clayton and Olga simply reflects the correct
chain of title. (Doc. 976). He additionally asserts that,
because his son and daughter-in-law’s homestead
property is exempt from execution, Travelers should be
prohibited from instituting meritless litigation against
supplementary to and in aid of a judgment or execution
“are a useful, efficacious, and salutary remedy at law
enabling [a] judgment creditor not only to discover assets
which may be subject to [its] judgment, but to subject them
thereto by a speedy and direct proceeding in the same court
in which the judgment was recovered.” Grovenor
House, L.L.C. v. E.I. Du Pont De Nemours & Co., 2012
WL 12950042, at *2 (S.D. Fla. July 12, 2012) (italics and
internal quotation marks removed). Federal Rule of Civil
Procedure 69 provides that proceedings supplementary must
accord with the procedure of the state where the court is
located. Fed. R. Civ. P. 69(a)(1). Section 56.29 of the
Florida Statutes governs such proceedings in this state.
purpose of that statute is to provide a mechanism “for
a judgment creditor ‘to ferret out what assets the
judgment debtor may have or what property of his others may
be holding for him, or may have received from him to defeat
the collection of the lien or claim, that might be subject to
the execution.’” Longo v. Associated
Limousine Servs., Inc., 236 So. 3d 1115');">236 So. 3d 1115, 1119 (Fla.
Dist. Ct. App. 2018) (quoting Young v. McKenzie, 46
So. 2d 184, 185 (Fla. 1950)).
When any judgment creditor holds an unsatisfied judgment or
judgment lien . . ., the judgment creditor may file a motion
and an affidavit so stating, identifying, if applicable, the
issuing court, the case number, and the unsatisfied amount of
the judgment or judgment lien, including accrued costs and
interest, and stating that the execution is valid and
outstanding, and thereupon the judgment creditor is entitled
to these proceedings supplementary to execution.
Fla. Stat. § 56.29(1).
terms, section 56.29(1) imposes “two jurisdictional
prerequisites . . . for supplementary proceedings[:] (1) an
unsatisfied writ of execution, and (2) an affidavit averring
that the writ is valid and unsatisfied.” Gen.
Trading, Inc. v. Yale Materials Handling Corp., 119 F.3d
1485, 1496 n.22 (11th Cir. 1997). Once a movant has satisfied
these two requirements, it is entitled to commence
proceedings supplementary, and “the court has no
discretion to deny” that relief. Longo, 236
So. 3d at 1119 (internal quotations and citations omitted).
Kearney effectively conceded at oral argument, Travelers has
met these two requirements here. It has filed the requisite
affidavit attesting that it holds a valid, unsatisfied
judgment and that the Clerk of Court has issued a writ of
execution, which also remains valid and outstanding. (Doc.
970-2). As such, Travelers is authorized to ...