Can a creditor take my paid off car in florida that is in my name and my husbands name for a debt is mine

Asked over 1 year ago - Fort Lauderdale, FL

the car is a 2006 pt crusier

Attorney answers (3)

  1. Michael David Bruckman

    Contributor Level 10

    1

    Lawyer agrees

    Answered . Unfortunately, there is not an easy answer to this question. It will probably depend on how your motor vehicle is titled, whether or not a tenancy by the entirety exists in the property, and the further availability of any exemptions if there is no tenancy by the entirety.

    Two cases are relevant to determine your answer. First, Beal Bank, SB v. Almand and Associates, etc., et al., 780 So. 2d 45 (Fla. 2001) is the seminal case on the issue of tenancy by the entirety. The theory is that property owned by both husband and wife should not be subject to creditor's claims that are from one spouse alone, because it will destroy the unity of the marriage.

    A tenancy by the entirety is created when these six "unities" are present:
    1) unity of possession (joint ownership and control); 2) unity of interest (the interests in the property must be identical); 3) unity of title (the interests must have originated in the same instrument); 4) unity of time (the interests must have commenced simultaneously); 5) survivorship; and 6) unity of marriage (the parties must be married at the time the property became titled in their joint names). Because of the sixth unity, TBE is a form of ownership available only to married couples. (See "Are Florida Laws on Tenancy by the Entireties in Personalty as Clear as We Think?" by Anne Buzby-Walt, Fla. Bar Journal 2011).

    The Beal Bank case gave married couples a presumption of this ownership interest on bank accounts, requiring the creditor to disprove it in court. It would allow accounts with either an "or" or an "and" between spouse's names to get that benefit.

    Then came the case of In re Daniels, 309 B.R. 54 (Bankr. M.D. Fla. 2004), which applied Beal Bank to all personal property, stating, “Where the required unities are present, the court concludes that Beal Bank’s presumption can and should be extended to include all marital personal property, not just financial accounts.”

    Unfortunately,"...[i]n the Daniels case, the court found that a motor vehicle titled in the name of a debtor “or” his nondebtor spouse was not owned as tenants by the entireties, regardless of their intent, because of the specific statute describing how to create interests in vehicles or mobile homes in Florida. The Daniels court concluded that Beal Bank did not override F.S. §319.22. Therefore, in order to title a vehicle or mobile home as a TBE, it is necessary to state the names of both spouses with the conjunctive 'and.'" (quoting "Are Florida Laws on Tenancy by the Entireties in Personalty as Clear as We Think?" by Anne Buzby-Walt, Fla. Bar Journal 2011, citations omitted). It's not a certainty every state judge will follow this case, but you should assume they will from your position.

    So, if your car is titled with an "and", and you meet all of the unities, you can claim an exemption on your vehicle if they attempt to place a lien on it. If it's titled with an "or", then a lien is possible, especially if the value of your vehicle is high enough. You'd be allowed to exempt $1000 of value from creditor's claims in a single motor vehicle. Fla. Stat. Ann. § 222.25(1). If your 1/2 interest in the vehicle exceeds this value, they may place a lien on your 1/2 interest.

    Creditors may attempt to do this anyway, in order to scare you into paying them, regardless of the value of the vehicle. Remember, they know the vehicle is more valuable to you (usually) than them, and the threat of taking it will sometimes cause a debtor to agree to pay.

    I would suggest talking to an attorney regarding this matter if the creditor gets aggressive.

    Answering this question does not create an attorney client relationship, and these communications are not... more
  2. Jaitegh Singh

    Contributor Level 7

    Answered . This question really hinges on the title of the car. Under tenancy by the entirety (TBE), the debt of one spouse cannot deprive the other spouse of property that is jointly owned. There are a number of factors that may also break TBE. This is something that should be consulted with an attorney. There are also a number of options with regards to keeping the car if TBE is broken. You can also find some information about TBE on my blog... http://www.jtsinghlaw.com/1/post/2013/01/t-by-e...

    Singh Law, P.A.
    Ft. Lauderdale - Miami - West Palm Beach
    (954) 586-6000

    DISCLAIMER: This answer is provided solely for informational purposes only. This answer does not constitute legal... more
  3. Jeffrey David Solomon

    Contributor Level 11

    Answered . Florida has a specific statute as to car titles. The title must be in the name of Husband and Wife, not Husband or Wife. This is a stricter standard than as to other assets to be considered as tenancy by the entireties.

    The questions and answers posted on AVVO are for general information and should not be treated as legal advice or... more

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