Asset/Debt Protection

Geoffrey P. Golub spells out some very basic asset protection rules here:  “If you are married you should own everything in both of your names.  And you should owe everything in only one of your names.  So your homesteaded house, car, bank accounts, etc… should all be owned in both of your names.”

Further, he says, “The assets should all be owned as tenancy in the entireties.  If all your debt is only in one of your names then the creditors cannot take your car, your house, and your bank accounts, etc…”

For further guidance, feel free to contact his office by telephone at 321-757-6848 or after hours, you may be able to catch Geoff working at 321-750-1107.

The following are some resources that I’ve found valuable in this area of my practice:

 Berlin v. Pecora (Fla. 4th DCA, 2007)

Bret Berlin, as personal representative of the Estate of Jerome Berlin (Berlin), appeals the final declaratory judgment in a partnership dispute which found that Michael Pecora (Michael) and his wife, Arlene Pecora (Arlene) held the limited partnership interest in Signature Grand, Ltd. and the stock of Deux Michel, Inc. and Grand Partners, Inc. as tenants by the entireties. We affirm. In 1982, Michael formed a limited partnership with Berlin called Signature Gardens, Ltd. The general partner of this limited partnership is a corporation, Deux Michel, Inc. The stock in Deux Michel, Inc. was issued equally to Michael, Berlin, and Michael Selig (Selig). Selig was bought out by Deux Michel, Inc. in 1989. In 1993, Michael and Berlin formed the limited partnership Signature Grand, Ltd. The general partner of this limited partnership is the corporation Grand Partners, Inc. The Grand Partners, Inc. stock was issued equally to Michael and Berlin. Arlene worked as director of sales for the limited partnerships, Signature Gardens, Ltd. and Signature Grand, Ltd. for one year before each facility opened in approximately 1984 and 1995, respectively. She did not work for either entity again until November 2001. On April 28, 2003, Berlin fired Arlene and the next day Michael shot and killed Berlin and then shot and killed himself. Michael left a suicide letter for Arlene and a letter directed to the comptrollers of Signature Gardens, Ltd. and Signature Grand, Ltd., appointing Arlene to act in his absence as president and CEO of Grand Partners, Inc. and Deux Michel, Inc. Arlene filed a complaint alleging that she and Michael had jointly owned the corporate stock and limited partnership interests as tenants by the entireties and therefore those interests immediately passed to her as the surviving spouse upon Michael’s death. At a non-jury trial Arlene maintained that she and her husband had an understanding that they would hold bank accounts, stock and real estate jointly as tenants by the entireties. She testified that their ownership interests in Signature Gardens, Ltd., Deux Michel, Inc., and Grand Partners, Inc. were purchased through their joint bank accounts. Other witnesses testified to conversations they had with Berlin and Michael in which Arlene was identified as a limited partner or joint tenant in the businesses.At the end of the trial, the trial court judge orally ruled that Arlene and Michael had owned the limited partnership interest in Signature Grand, Ltd. and the stock in the corporations, Deux Michel, Inc. and Grand Partners, Inc. as tenants by the entireties. The court later entered a Final Declaratory Judgment in favor of Arlene and granted Arlene’s motion to tax costs. On appeal, Berlin argues that the trial court erred because it overlooked the corporate documents. Berlin cites to several documents as evidence that both corporations established stock ownership in Michael alone. These documents include the minutes of Deux Michel, Inc. showing that Michael owned 200 shares; a February 1984 resolution and stock certificate showing an additional hundred shares issued to Michael, individually; July 1993 minutes of Grand Partners, Inc. reflecting Michael owning 200 shares in the company; and K-1 tax schedules for Deux Michel, Inc. and Grand Partners, Inc. showing Michael as the shareholder. “[C]orporate records provide a prima facie evidentiary basis for determining ownership of corporate stock.” Sackett v. Shahid, 722 So. 2d 273, 275 (Fla. 1st DCA 1998). However, [I]t is within the trial judge’s province, when acting as trier of both fact and law, to determine the weight of the evidence, evaluate conflicting evidence, and determine the credibility of the witnesses, and such determinations may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence, or to constitute an abuse of discretion. Jockey Club, Inc. v. Stern, 408 So. 2d 854, 855 (Fla. 3d DCA 1982). The above mentioned documents provide evidence that Michael was the only recognized name mentioned with stock ownership in the companies. Nevertheless, these documents are contradicted with testimony at trial that the stock was held jointly; evidence and testimony that Michael and Arlene made purchases through a joint account; and other documents admitted at trial indicating joint ownership, thereby providing competent and substantial evidence for the trial court’s ruling. One additional document cited by Berlin is a 1997 Guarantor Affidavit and Spousal Disclaimer. This document was made to provide security for a loan from BankAtlantic to Signature Grand, Ltd. In the document, Michael listed his stock interests in Grand Partners, Inc. and Duex Michel, Inc. and his partnership interests in Signature Grand Ltd. and Signature Gardens, Ltd. Arlene acknowledged in the affidavit that the assets were owned solely by Michael and disclaimed any interest in the assets. The premise behind the affidavit comes into doubt in light of the testimony by Susan Imbrigiotta, the Vice President of Commercial Real Estate Lending for BankAtlantic. She testified that she was the original loan officer for the 1997 loan transaction with Signature Grand, Ltd. She explained that this loan transaction required a Guarantor Affidavit and Spousal Disclaimer, which is used when the guarantor signing on the loan is married and his or her spouse is not personally signing on the loan; both spouses then must sign the Affidavit. She admitted that the relevant part of the financial affidavit attached to the Affidavit in BankAtlantic’s file was that of Berlin, not Michael. Therefore, Arlene disclaimed only Berlin’s interests in Grand Partners, Inc., Signature Grand, Ltd., Deux Michel, Inc., and Signature Gardens, Ltd. Based on the above, there was competent substantial evidence to find the affidavit was not intended to divest Arlene of her ownership interests in the companies. Berlin also argues that Arlene failed to prove any of the elements necessary to establish a tenancy by the entirety. Arlene argues that her entireties interest arose as a result of her investments in the corporate assets from her joint bank account with Michael. Under a tenancy by the entirety, “[u]pon the death of one spouse, the surviving spouse continues to be seized of the whole. Thus . . . after death of one spouse the surviving spouse continues to hold the entire estate . . . .” Cacciatore v. Fisherman’s Wharf Realty Ltd. P’ship, 821 So. 2d 1251, 1254 (Fla. 4th DCA 2002). Property held as a tenancy by the entireties possesses six characteristics: (1) unity of possession (joint ownership and control); (2) unity of interest (the interests in the account 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; (6) unity of marriage (the parties must be married at the time the property became titled in their joint names). Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 52 (Fla. 2001) (footnote omitted). Arlene’s main argument and the one that the trial court agreed with, is that the tenancy by entirety was created through the use of a joint account to buy the interests. Bank accounts are afforded the same presumption of tenancy by the entireties as is real property. Beal Bank, 780 So. 2d at 58. Property purchased with joint funds may create a tenancy by the entirety in that property so long as the unities are met. For example, in Winterton v. Kaufmann, 504 So. 2d 439 (Fla. 3d DCA 1987), the court found that after the husband died, the wife owned bonds that were purchased with joint funds and kept in a joint safe deposit box. See also Estate of Fields v. Fields, 581 So. 2d 1387, 1388 (Fla. 3d DCA 1991) (“The bearer bonds, purchased with joint funds and maintained in the couple’s joint safe deposit box, passed to the wife upon the husband’s death. The bearer bonds were held by the spouses as tenants by the entirety; ownership vested in the wife as the survivor.”). Once tenancy by the entirety property is established, its subsequent transfer to another asset does not terminate the unities of title or possession. See Passalino v. Protective Group Sec., Inc., 886 So. 2d 295, 297 (Fla. 4th DCA 2004) (“Transferring the proceeds of the sale of entireties property to a trustee for the benefit of the husband and wife does not terminate the unities of title or possession . . . .”); Lerner v. Lerner, 113 So. 2d 212 (Fla. 2d DCA 1959). Here, the six characteristics needed to prove the tenancy by the entirety are largely based upon the assumption that joint funds were used in the inception of the companies, even though the proof of the use of joint funds is illustrated only by checks dated after the inception of the companies and witness testimony “[U]nless a tenancy by the entireties is clearly expressed in the instrument, the parties must prove they intended to create a tenancy by the entireties.” Hurlbert v. Shackleton, 560 So. 2d 1276, 1279 (Fla. 1st DCA 1990); Morse v. Kohl, Metzger, Spotts, P.A., 725 So. 2d 436, 438 (Fla. 4th DCA 1999). The trial court heard testimony from witnesses as well as the admission of several documents in which it found that the intention was to create a tenancy by the entirety. This is a factual question which the court ultimately determined by competent substantial evidence in favor of Arlene. See Sitomer v. Orlan, 660 So. 2d 1111, 1115 (Fla. 4th DCA 1995) (“Whether the parties created a tenancy by the entireties in a bank account — whether they were each taking the whole of the account — is a question of fact.”) Because substantial competent evidence supported the trial court’s finding that Arlene and Michael held their ownership interests as tenants by the entireties, this court cannot reverse that finding. The trial court also properly granted Arlene’s motion to tax costs. Affirmed. (Stevenson, J., and Belanger, Robert E., Associate Judge, concur.)

Buckeye Retirement Co., LLC, Ltd. v. Nassau Land & Trading Co., Inc.

943 So.2d 223(Fla. 1^st DCA 2006)

(PER CURIAM.) Appellant seeks review of a final order dissolving a writ of garnishment based on the conclusion that appellant had failed to rebut the presumption that the bank account garnished was intended by appellee William H. Kavanaugh and his wife to be held as a tenancy by the entireties and that, therefore, the account was not subject to garnishment for a debt owed by Mr. Kavanaugh individually. Appellant concedes that Kavanaugh and his wife held the account as tenants by the entireties, urging that we address another issue not reached by the trial court. What appellant apparently fails to comprehend is that, having concluded that appellant had failed to prove that the account was not held by the entireties, it was unnecessary for the trial court to reach the other issue. Because appellant failed to rebut the presumption that the account was intended to be held by the entireties, the Kavanaughs were entitled to have the writ dissolved. See Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 53 (Fla. 2001) (“when property is held as a tenancy by the entireties, only the creditors of both the husband and wife, jointly, may attach the tenancy by the entireties property; the property is not divisible on behalf of one spouse alone, and therefore it cannot be reached to satisfy the obligation of only one spouse”) (citations omitted). Accordingly, we affirm. Moreover, because this appeal is devoid of any arguable merit, we grant Kavanaugh’s motion for attorneys’ fees, made pursuant to section 57.105, Florida Statutes (2005). See Dunn v. Kean, 928 So. 2d 383, 383 (Fla. 1st DCA 2006). We remand to the trial court, with directions that it determine the appropriate amount of fees to be awarded for Kavanaugh’s lawyers’ services in this appeal should the parties be unable to agree. AFFIRMED and REMANDED, with directions. (WEBSTER, VAN NORTWICK, and PADOVANO, JJ., CONCUR.)

Cacciatore v. Fisherman’s Wharf Realty Ltd. Partnership ex rel. Emalfarb Investment Corp.

821 So.2d 1251(Fla. 4^th DCA 2002)

(OWEN, WILLIAM C., JR., Senior Judge.) The trial court determined that a stock certificate titled in the joint names of appellant and his wife was owned by them as joint tenants, not as tenants by the entirety, and thus, appellee, the holder of a judgment against appellant, was entitled to have the sheriff levy on appellant’s interest in the certificate.1 We conclude that as between debtor and creditor the holding and rationale of Beal Bank, SSB v. Almand & Associates, 780 So. 45 (Fla. 2001), should be extended to create a presumption of tenancy by the entireties in the stock certificate. Accordingly, we reverse the order appealed and remand with directions. After its judgment against appellant had been affirmed,2 appellee sought an order authorizing the sheriff to levy writ of execution on a stock certificate for 510 shares of Nantucket Enterprises, Inc., which certificate designated “Phillip F. Cacciatore, Jr. and Elaine Cacciatore, his wife” as owner. Initially, appellee had sought to prove that appellant was the sole owner of the 510 shares of stock, and that his wife had no interest therein. Although there was evidence both pro and con on that issue, the trial court resolved that matter against appellee’s position, finding that the stock was held by appellant and his wife jointly. No issue is raised on this appeal concerning that finding. As its fall back position, appellee argued to the trial court that, even if the court found appellant and his wife owned the certificate jointly, the court nonetheless would have to find as a matter of law that their ownership was as joint tenants and not as tenants by the entireties since there was no evidence before the court as to the intent of appellant and his wife to create an estate by the entireties in the certificate. In support of that argument appellee cited Florida case law3 holding that personal property taken in the joint names of a husband and wife, unlike real property when title was so taken, created no presumption that a tenancy by the entireties was intended but required the owners to prove that intent. The trial court, apparently accepting that argument, entered the order appealed determining that appellant and his wife owned the stock as joint tenants, not as tenants by the entirety, and directed the sheriff to levy and execute on appellant’s one-half interest in the certificate. In Beal Bank, the court answered the following certified question (as rephrased by the court) in the affirmative: I. In an action by the creditor of one spouse seeking to garnish a joint bank account titled in the name of both spouses, if the unities required to establish ownership as a tenancy by the entireties exist, should a presumption arise that shifts the burden to the creditor to prove that the subject account was not held as a tenancy by the entireties? Beal Bank, 780 So. 2d at 48. The court there was dealing with bank accounts titled in the names of both spouses and, thus, its ultimate holding dealt specifically with joint bank accounts. Nonetheless, in reaching that holding the court expansively reviewed and discussed Florida case law, including the cases relied upon by appellee, to point out the disparity that existed in Florida as to the presumption of an estate by the entireties when a husband and wife took title to real property in their joint names and the absence of any such presumption when a husband and wife acquired and held personal property in their joint names. Having recognized the existence of such a disparity, the court cogently pointed out sound reasons why it should be eliminated.4 Of greater importance, and significant to our decision today, we think the court’s opinion, fairly read, indicated that the time had come to eliminate that disparity and to accord to personal property in general (not just bank accounts) the same presumption of tenancy by the entireties when jointly owned by husband and wife as that accorded real property jointly owned by husband and wife. In this respect, the court said: Although we understand the considerations that originally led to this Court’s decision not to adopt a presumption of a tenancy by the entireties in personal property similar to that in real property, we conclude that stronger policy considerations favor allowing the presumption in favor of a tenancy by the entireties when a married couple jointly owns personal property. In fact, other jurisdictions apply a presumption in favor of a tenancy by the entireties to both real property and personal property. Id. at 57 (footnote omitted). Consistent with that view, we hold that where a judgment creditor of one spouse seeks to levy under writ of execution against a stock certificate titled in the name of both spouses, if the unities required to establish ownership as a tenancy by the entireties exist, a presumption of such tenancy arises that shifts the burden to the creditor to prove that the stock was not so held. We believe the soundness of such holding is enhanced by our recognition, as a matter of common knowledge, that the alienation of a stock certificate held in spouses’ joint names, just as title to real property held in spouses’ joint names, requires greater formality than does alienation of the content of the joint banks accounts present in Beal Bank. Appellee argues that irrespective of whether the holding of Beal Bank is limited solely to joint bank accounts, or is viewed as applicable to personalty in general, it does not support a presumption of tenancy by the entireties in the stock involved here. Pointing to the court’s explicit holding, at 780 So. 2d at 58, appellee argues that the court intended the presumption to arise only if husband and wife hold title in accordance with the unities of possession, interest, title and time and with right of survivorship. Thus, the argument continues, the presumption of tenancy by the entireties in the instant stock certificate could not arise because the words “with right of survivorship” were not present. We think it clear that the holding in Beal Bank does not require, in order for the presumption to arise, the presence of the words “with right of survivorship,” any more than it requires the presence of words describing each of the other unities characteristic of a tenancy by the entireties. Rather, the presumption arises from taking title in the spouses’ joint names. The creditor then has the burden to prove by the preponderance of the evidence that one of the necessary unities (including, if such be the case, the right of survivorship) did not exist at the time the certificate was acquired. When husband and wife take title to property as a tenancy by the entireties, each is seized of the estate thus granted per tout et non per my. See First Nat’l Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777, 780 (Fla. 1971). Upon the death of one spouse, the surviving spouse continues to be seized of the whole. Thus, survivorship, in the generally accepted sense that after death of one spouse the surviving spouse continues to hold the entire estate, is the very essence of the unique nature of a tenancy by the entireties. It would be redundant to add the words “with right of survivorship” when describing the interest of a husband and wife who intend to take title to property as tenants of an estate by the entireties. Thus, we further hold that for the presumption to arise in connection with ownership of a stock certificate issued in the joint names of a husband and wife the words “with right of survivorship” are not required to be appended. The order appealed is reversed. Upon remand, the trial court shall reconsider the judgment creditor’s motion in light of this court’s opinion. For that purpose, the court may conduct such further hearings, including the taking of additional evidence, as the court in its discretion may deem appropriate. REVERSED. (STEVENSON and GROSS, JJ., concur.) 1The order likewise directed levy on appellant’s interest in two jointly titled automobiles, but this appeal involves only the portion of the order pertaining to the stock. 2See Cacciatore v. Fisherman’s Wharf Realty Ltd. P’ship, 778 So. 2d 1076 (Fla. 4th DCA 2001). 3Appellee cited to the trial court some or all of the cases it likewise cites here for that position: First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla. 1971); Cadle Company v. G&G Associates, 741 So. 2d 1257 (Fla. 4th DCA 1999); Amsouth Bank of Florida v. Hepner, 647 So. 2d 907 (1st DCA 1994); Hurlbert v. Shackleton, 560 So. 2d 1276 (Fla. 1st DCA 1990); In re: Bundy, 235 B.R. 110 (M.D. Fla. 1999). 4“[T]he effect of our decisions … was to set up both an obstacle course for litigation and a trap for the unwary ….” 780 So. 2d at 57.