Branch Banking and Trust Company v. Oswald P. Carrerou

Case: 17-14404 Date Filed: 05/08/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-14404

Non-Argument Calendar

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D.C. Docket No. 8:15-cv-01462-JSM-AAS

BRANCH BANKING AND TRUST COMPANY,

a North Carolina banking corporation, as successor-in-

interest to Colonial Bank, successor by merger to Citrus

and Chemical Bank,

Plaintiff - Appellee,

versus

OSWALD P. CARREROU,

individually,

CRYSTAL CENTRE, LLC,

a Florida limited liability company,

DONALD K. STEPHENS,

individually,

BANK OF AMERICA, N.A.,

Defendants - Appellants.

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Appeal from the United States District Court

for the Middle District of Florida

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(May 8, 2018)

Case: 17-14404 Date Filed: 05/08/2018 Page: 2 of 5

Before MARTIN, JILL PRYOR, and NEWSOM, Circuit Judges.

PER CURIAM:

On behalf of himself and his wife, Oswald Carrerou appeals the district

court’s final judgment of garnishment against his retirement accounts—assets that

would ordinarily be exempt from attachment under Florida law—based on his

failure to timely file a claim of exemption and a motion to dissolve a writ of

garnishment pursuant to Fla. Stat. §§ 77.041, 77.07(2). On appeal, Carrerou argues

that the district court misinterpreted Florida’s garnishment statutes and that his

untimely filings resulted from “excusable neglect.” After careful review, we

affirm. 1

In federal court, the procedure on execution of a judgment “must accord

with the procedure of the state where the court is located[.]” Fed. R. Civ. P.

69(a)(1). Florida law provides that once a judgment is rendered in its favor, an

entity has a right to seek a writ of garnishment. See Fla. Stat. § 77.01. Certain

property is exempt from attachment, including retirement accounts. See Fla. Stat.

§§ 77.041(1); 222.21(2)(a). Importantly here, a Florida judgment creditor is

required to send the judgment debtor two garnishment-related notices. First, the

creditor must notify the debtor that if an exemption from garnishment applies, he

“must complete a form for claim of exemption and request for hearing”—and, in

1

“We review a district court's interpretation of a statute de novo.” Burlison v. McDonald's

Corp., 455 F.3d 1242, 1245 (11th Cir. 2006).

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particular, the debtor “must” do so within 20 days after receipt of the notice or he

“may lose important rights.” Fla. Stat. § 77.041 (emphasis added). Second, the

creditor must notify the debtor that he “must move to dissolve the writ of

garnishment within 20 days” after the date on the certificate of service. Fla. Stat. §

77.055 (emphasis added). As to the latter, failure to timely file the motion to

dissolve “shall result in the striking of the motion as an unauthorized nullity by the

court, and the proceedings shall be in a default posture as to the party involved.”

Fla. Stat. § 77.07(2).

In this case, it is undisputed that the accounts at issue are retirement

accounts that are exempt from attachment under Florida law. It is also undisputed

that both the claim of exemption and the motion to dissolve were filed late—

approximately two months and one month, respectively. The district court denied

the untimely filings and entered final judgment in garnishment in favor of the

creditor, BB&T.

On appeal, Carrerou contends that nothing in the statutory text states that an

untimely filing will automatically cause a debtor to lose his exemption rights.

Rather, he argues, the “may lose” and “default posture” language implies that the

debtor will have an opportunity to correct the deficiency and cure the default.

Florida courts, though, have considered Carrerou’s precise arguments and rejected

them. See Zivitz v. Zivitz, 16 So. 3d 841 (Fla. 2d DCA 2009) (holding that the

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untimely filing of an exemption claim prevented the debtor from receiving the

benefit of the exemption and required a decision in favor of the garnishor).

Carrerou criticizes Zivitz for failing to adequately consider Florida’s public

policy favoring liberal interpretation of exemption statutes to prevent debtors from

becoming public charges. But as the Zivitz court emphasized, under Florida law

“[g]arnishment proceedings are statutory in nature and require strict adherence to

the provisions of the statute.” Zivitz, 16 So. 3d at 847; see also Akerman Senterfitt

& Eidson, P.A. v. Value Seafood, Inc., 121 So. 3d 83, 86 (Fla. 3d DCA 2013) (“It

is fundamental that garnishment statutes must be strictly construed.”). Statutory

language “should be given its plain and ordinary meaning,” Zivitz, 16 So. 3d at

847, and here the statutes clearly state that the exemption claim and motion to

dissolve “must” have been filed within the specified time periods. See Fla. Stat. §§

77.041, 77.055; see also Zivitz, 16 So. 3d at 846 (“[S]ection 77.041 repeatedly used

the word ‘must’ when identifying the actions a garnishment defendant must

proactively take to protect wages, money, or property from garnishment.”). As the

Zivtiz court explained, when read in context, the “may lose important rights”

language in Section 77.041 merely accounts for instances in which the debtor

ultimately does not qualify for an exemption and thus never had “important rights”

to lose. See Zivitz, 16 So. 3d at 847. It does not “negate the necessity for timely

compliance with the statutory time frame.” Id. Therefore, here—as in Zivitz—by

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failing to timely file the claim of exemption and motion to dissolve, Carrerou

forfeited his exemption claim and his opportunity to dissolve the writ as to the

retirement accounts.

Carrerou’s “excusable neglect” argument is also unpersuasive. Carrerou

received proper notice of the statutory filing deadlines and his one- and two-month

delays were significant, especially considering the relatively short time frame in

which garnishment proceedings must occur under Florida law. Moreover, as the

Zivitz court observed, permitting debtors to exceed the clearly stated statutory

deadlines would not only “render meaningless the time requirements established in

the statute for filing claims of exemptions” but would also “prolong garnishment

proceedings and would go against the long-established principle that courts should

avoid construing a statute in a manner that renders a portion of the statute

meaningless.” Zivitz, 16 So. 3d at 847.

* * *

For the foregoing reasons, the district court’s judgment is AFFIRMED.

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