STEFANO VERSACE v. URUVEN, LLC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STEFANO VERSACE, an individual,

BRUNO VERSACE, an individual, and ROBERT RE, an individual,

Appellants,

v.

URUVEN, LLC,

a Florida limited liability company,

Appellee.

No. 4D21-2311

[October 12, 2022]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Joseph George Marx, Judge; L.T. Case No. 50-2017-CA-

006820-XXXX-MB.

Alejandro Brito and Cecilia S. Miranda of Brito, PLLC, Coral Gables, for

appellants.

Leon F. Hirzel and Alec P. Hayes of Hirzel Dreyfuss & Dempsey, PLLC,

Miami, for appellee.

WARNER, J.

Appellant challenges the trial court’s order permitting garnishment of

a bank account designated on the signature card as a tenants by the

entirety account with his wife. He claims that based on Beal Bank, SSB v.

Almand and Associates, 780 So. 2d 45 (Fla. 2001), the bank account is not

subject to garnishment for his individual debt. Appellee contends that the

account is not held as tenants by the entireties, because the six unities of

title are not present.

We agree with appellant that Beal Bank controls. Beal Bank held that

where a bank signature card expressly designates the account as held as

tenants by the entireties between husband and wife, this “ends the inquiry

as to the form of ownership.” 780 So. 2d at 60. Thus, appellant and his

wife’s account held expressly as tenants by the entireties is not subject to

garnishment for the judgment against appellant. We reverse.

Appellee obtained a judgment against appellant and secured the

issuance of a writ of garnishment against Bank of America, claiming that

appellant had accounts with the bank. The bank answered that it had

three accounts in appellant’s name, among others, including an account

in the name of appellant and his wife. The bank set aside the monies in

the account in appellant’s and his wife’s name subject to the writ.

Appellant filed a claim of exemption and motion to dissolve the writ as to

that account, claiming that the account was held as tenants by the

entireties. Appellee responded that the account did not meet the six

unities of title 1 necessary to be a tenancy by the entireties account.

Specifically, appellee asserted the account lacked the unity of time,

because the account was originally opened by the wife alone. Not until a

few years later did appellant and the wife sign a new signature card, which

expressly stated that the account was held as tenants by the entireties.

The court held a hearing and then granted the writ of garnishment as

to all accounts, thus rejecting appellant’s claim of exemption for the

account designated by the signature card to be held by appellant and the

wife as tenants by the entireties. Appellant appeals this order.

Because the issue we address is one of law, our review is de novo. See

Kane v. Stewart Tilghman Fox & Bianchi, P.A., 197 So. 3d 137, 141 (Fla.

4th DCA 2016) (“The classification of monies sought in a garnishment

proceeding is a question of statutory interpretation that is reviewed de

novo.” (citation and internal quotation marks omitted)); Arnold, Matheny

& Eagan, P.A. v. First Am. Holdings, Inc., 982 So. 2d 628, 632 (Fla. 2008)

(applying de novo standard of review where the issue on appeal required

interpretation of statutory provisions of Florida garnishment law).

The type of account held by a husband and wife determines whether it

can be garnished by a creditor of either. Because a tenancy by the entirety

belongs to neither party, but “each spouse is seized of the whole,” see Beal

Bank, 780 So. 2d at 53, it cannot be garnished by a creditor of one spouse.

However, in a joint tenancy with right of survivorship each party owns his

or her separate share of the property such that a creditor of one joint owner

may attach that owner’s share of the account to satisfy that owner’s debt.

Id.

In Beal Bank, the supreme court recognized the confusion in the law

with respect to tenancies by the entireties in personal property, stating:

1 Creation of a tenancy by the entireties requires the unities of possession,

interest, title, time, as well as survivorship and marriage. See Beal Bank, 780

So. 2d at 52.

2

Over the past fifty years, Florida jurisprudence has continued

to struggle with the application of common law real property

ownership concepts to modern banking relationships. . . .

....

Indeed, jurists and legal commentators have labeled the law

regarding tenancies by the entireties in personal property to

be “relatively conflicting and confusing” and “a state of

morass.”

Id. at 56–57 (footnotes omitted). This was particularly true, because banks

frequently did not provide on their signature cards for the type of account

which was being opened. Id. at 56. The court sought to adapt the common

law to facilitate the changes in modern banking. The court then adopted

two rules to end the confusion. First,

[A]s between the debtor and a third-party creditor (other than

the financial institution into which the deposits have been

made), if the signature card of the account does not expressly

disclaim the tenancy by the entireties form of ownership, a

presumption arises that a bank account titled in the names of

both spouses is held as a tenancy by the entireties as long as

the account is established by husband and wife in accordance

with the unities of possession, interest, title, and time and

with right of survivorship. The presumption we adopt is a

presumption affecting the burden of proof pursuant to section

90.304, Florida Statutes (2000), thus shifting the burden to

the creditor to prove by a preponderance of evidence that a

tenancy by the entireties was not created.

Id. at 58 (footnotes omitted).

Second, with respect to an express designation on a signature card that

the account is held as a tenancy by the entirety:

Although we recede from Hector Supply Co., we agree with the

statement in Hector Supply Co. that an express designation on

the signature card that the account is held as a tenancy by the

entireties ends the inquiry as to the form of ownership. Hector

Supply Co., 254 So. 2d at 781. Following Hector Supply Co.,

other courts have excluded extrinsic evidence where the

account documents clearly indicated the legal form of

3

ownership. See Morse v. Kohl, Metzger, Spotts, P.A., 725 So.

2d 436, 437 (Fla. 4th DCA 1999) (holding that extrinsic

evidence is inappropriate when both husband and wife signed

the signature card, which specifically and clearly designated

the account as one held as tenants by the entireties); Sheeler

v. United States Bank of Seminole, 283 So. 2d 566, 566 (Fla.

4th DCA 1973) (holding no further inquiry necessary where

clear from the terms of the bank signature card that an estate

by the entireties was expressly created).

Beal Bank, 780 So. 2d at 60 (emphasis supplied). By modifying the

common law with respect to bank accounts held by spouses, the court

hoped “to bring greater predictability and uniformity to the common law

governing accounts held at financial institutions and to eliminate the

confusion that has arisen from our prior decisions in this area[.]” Id. at

62.

In a footnote in Beal Bank, the court suggested to the Legislature that

it enact a statutory presumption of tenancy by the entirety in bank

accounts held in the name of two spouses. 780 So. 2d at 62 n.24. The

Legislature did more than that in in 2008 by amending section 655.79(1),

Florida Statutes, to provide: “Any deposit or account made in the name of

two persons who are husband and wife shall be considered a tenancy by

the entirety unless otherwise specified in writing.” Thus, consistent with

Beal Bank, an express designation of an account as a tenancy by the

entireties would create a tenancy by the entireties as a matter of statutory

law, regardless of the presence or absence of the common law

requirements of unities.

Appellees argue that Beal Bank does not apply, because it did not deal

with an account in which the unity of time was not present, thus

precluding the account from being treated as a tenancy by the entireties.

We disagree. In a footnote, the Beal Bank court stated that while some

commentators suggested the unity of time should be omitted from the

unities required to establish a tenancy by the entirety, the issue was not

raised, and the court declined to consider it. 780 So. 2d at 52 n.6. But

this does not mean that Beal Bank would still allow a party to challenge

the account’s form for failing any of the unities. Beal Bank did not qualify

its statement that an express designation of tenancy by the entireties

“ends the inquiry.” Id. at 60. In contrast, the court required an

examination of the unities where no such express designation exists. In

the latter case, the presumption of a tenancy by the entirety arises “as long

as the account is established by husband and wife in accordance with the

unities of possession, interest, title, and time and with right of survivorship.”

4

Id. at 58 (emphasis supplied). Thus, the court made a clear distinction

between accounts which state expressly they are held as tenants by the

entirety and ones that do not, and only those that do not have an express

designation require an examination of the unities in the formation of the

account. Of course, section 655.79(1) now eliminates even that showing,

as all spousal bank accounts are considered as held by tenancies by the

entireties unless otherwise specified in writing. 2

The language in Beal Bank is clear and direct. The express designation

of a tenancy by the entireties on a signature card of a bank account

establishes the account as such, and no further inquiry should be made.

This was reinforced by section 655.79(1), which makes the signature card

conclusive. No one need establish all the common law unities of tenancy

by the entireties when a third party creditor seeks to garnish such an

account. 3

This does not leave the creditor without remedies as to such an

account. As the Beal court noted,

[this] decision in no way limits creditors’ ability to protect their

interests against debtors who seek to shield assets from

creditors. Concerns such as preventing fraud on creditors or

fraudulent transfers, however, are more properly addressed

by those statutes that prevent fraudulent transfers. . . .

Id. at 59 (footnote omitted).

Appellant also challenges the trial court’s issuance of a writ of

garnishment as to two other accounts held jointly with right of

survivorship with other parties. To ascertain what interest each account

holder had in the account requires an analysis of the evidence provided at

the hearing. As we have no transcript of the hearing, we are required to

2 In another footnote in Beal Bank, the court noted that it did not address another

account, titled the Merrill Lynch Account, because the wife’s name was added

later to the account. 780 So. 2d at 49 n.2. The Fifth District opinion in Beal

Bank, SSB v. Almand & Associates, 710 So. 2d 608 (Fla. 5th DCA 1998), had held

it was subject to garnishment. This does not signify approval of the result, nor

can we glean whether the wife was simply added later or, as here, an entirely new

signature card was executed. In any event, that was most likely a stock account,

not a bank account, and Beal Bank only addressed bank accounts.

3 See Anne Buzby-Walt, Are Florida Laws on Tenancy by the Entireties in

Personalty as Clear as We Think?, 85 Fla. Bar J. 52 (Sept./Oct. 2011) 15

(“Presumably [according to Section 655.79(1] there is no longer a requirement to

establish the unities in the case of bank accounts.”).

5

accept the trial court’s rulings as supported by the evidence and affirm.

See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.

1979).

We thus reverse the trial court’s issuance of the writ of garnishment as

to the account held as a tenancy by the entirety between appellant and his

wife. We affirm the order allowing garnishment of the accounts held jointly

with others.

Affirmed in part; reversed in part; and remanded with instructions.

MAY and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

6