Section 12E-1.028 - Garnishment by Levy(1) Introduction. Section 409.25656, F.S., authorizes the Department to levy against the personal property of obligors who owe past-due support.(2) Definitions. For purposes of this rule:(a) "Account" includes demand deposits, time deposits, checking or negotiable withdrawal orders, money market funds, mutual funds and any other intangible property subject to garnishment under Florida law.(b) "Current earnings" means earnings received by an obligor from any source: 1. Within 30-days preceding the date a Notice to Freeze is served on the custodian; and,2. At any time during the period when a Notice to Freeze is in effect.(c) "Custodian" means a person other than the obligor, including a business entity, who has control or possession of any personal property owned by, or owed to, an obligor.(d) "Freeze" means a hold placed by a custodian on an obligor's personal property pursuant to a Notice to Freeze that prevents transfer or other disposition of the property from the time the notice is served on the custodian until the Notice to Freeze is released by the Department.(e) "Levy action" means the garnishment procedure authorized by Section 409.25656, F.S., beginning with a Notice to Freeze issued by the Department, and ending with termination of the Notice to Freeze or the Department's allocation of property received from the custodian when the Department issues a Notice of Levy.(f) "Personal property" includes assets, credits, wages or other personal property owned by an obligor, or debts owed to an obligor, which are in the possession or control of a custodian.(g) "Thrift Savings Plan" or "TSP" means a retirement savings and investment plan for Federal employees and military service members established by the Federal Employees' Retirement System Act of 1986.(3) Case Selection. (a) The Department intiates a levy action when:1. The amount of past-due or overdue support is greater than $600 or greater than four times the total monthly support obligation, which includes current support and any payment on arrears;2. Less than 75% of the total monthly support obligation was paid in the three-month period immediately preceding the Notice to Freeze;3. The past-due or overdue support is owed under a Florida support order, or a support order issued by another state or foreign country and registered for enforcement in Florida; and4. The support order is at least six months old.(b) The Department does not intiate a levy action when:1. The obligor receives temporary cash assistance, as defined by Section 414.0252(12), F.S.;2. The obligor receives Federal Supplemental Security Income (SSI) benefits;3. The obligor has filed for bankruptcy under Chapter 7, 11, 12 or 13 of the U.S. Bankruptcy Code;4. Support payments have been paid by income withholding or reemployment assistance benefits (unemployment) within the past 31 days;5. There is a pending levy action at the same financial institution;6. A levy payment of more than $100 has been received in the past six months; or7. The obligor is in compliance with a written agreement entered into under Rule 12E-1.027, F.A.C.(4) Notice to Freeze. (a) After considering the factors and conditions in subsection (3), the Department sends a Notice to Freeze (CS-EF121) to the custodian of the obligor's personal property by certified mail, return receipt requested. The Notice to Freeze (CS-EF121) is incorporated herein by reference, effective 04/20, (http://www.flrules.org/Gateway/reference.asp?No=Ref-11824). If the account is a Thrift Savings Plan, the Department sends the custodian a Thrift Savings Plan Income Withholding Order For State Agencies (TSP-CS-1) and Thrift Savings Plan Cover Sheet (CS-EF287). The Thrift Savings Plan Income Withholding Order For State Agencies (TSP-CS-1) 12/2022 is incorporated herein by reference, effective 09/23, (http://www.flrules.org/Gateway/reference.asp?No=Ref-15853). The Department will not initiate a levy action against an obligor's Thrift Savings Plan account or accounts unless the combined account balance is equal to or greater than $1500.(b) Upon receiving the Notice to Freeze, the custodian may not transfer or dispose of the obligor's personal property, up to the amount of past-due or overdue support stated in the notice, until the freeze is terminated.(c) If the obligor contests the levy by requesting an administrative hearing in writing, or by filing a petition in circuit court within 21 days after receipt of the notice, the Department shall notify the custodian. The freeze remains in effect until final disposition and the custodian may not transfer or dispose of the property until further notice from the Department.(d) When the obligor does not contest the levy, the freeze terminates at the earliest of the following:1. 60 days after the custodian's receipt of the Notice to Freeze;2. When the Department consents to a transfer or disposition of the property; or3. When the custodian receives a Notice of Levy from the Department.(5) Custodian's Response to Notice. (a) The custodian must contact the Department within five days after receipt of the Notice to Freeze or Thrift Savings Plan Income Withholding Order For State Agencies and inform the Department of personal property in the custodian's possession or control, including the type of property, its value or approximate value, and its location. If the custodian does not contact the Department, the Department mails the custodian a Notice to Freeze Second Request for Information (CS-EF280). The Notice to Freeze Second Request for Information (CS-EF280) is incorporated herein by reference, effective 04/20, (http://www.flrules.org/Gateway/reference.asp?No=Ref-11836).(6) Notice of Intent to Levy. (a) The Department sends a Notice of Intent to Levy (CS-EF122) by certified mail, return receipt requested to the obligor providing notice of its intent to levy on the obligor's personal property. The Notice of Intent to Levy (CS-EF122) is incorporated herein by reference, effective 07/22, (http://www.flrules.org/Gateway/reference.asp?No=Ref-14349).(b) The Department may serve the obligor in person with a Notice of Intent to Levy. When the Department serves the notice in person, the Department completes the Affidavit of Service by Hand Delivery (CS-EF128), which constitutes proof of receipt of notice by the obligor. The Affidavit of Service by Hand Delivery (CS-EF128) is incorporated herein by reference, effective 04/20, (http://www.flrules.org/Gateway/reference.asp?No=Ref-11830).(7) Right to Hearing. (a) The obligor and any joint owner may contest the intended levy within 21 days of receipt of the notice by requesting an administrative hearing in writing, or by filing a petition in circuit court.(b) The obligor and any joint owner may request an informal conference with the Department to resolve disputed matters concerning the levy. Rights are not adjudicated at an informal conference and the right to contest the intended levy by requesting a formal or informal hearing is not affected by requesting or participating in an informal conference. A request for informal conference does not extend the 21 days allowed for contesting the intended levy. Mediation pursuant to Section 120.573, F.S., is not available as an alternative remedy.(c) If the obligor requests an administrative hearing in writing, or files a petition in circuit court within 21 days after receipt of the notice, the Department sends the custodian an Extension of Freeze (CS-EF125) to extend the freeze until the contest is resolved. The Extension of Freeze (CS-EF125) is incorporated herein by reference, effective 04/20, (http://www.flrules.org/Gateway/reference.asp?No=Ref-11828). If the levy action is for a Thrift Savings Plan account, the Department sends the custodian a Thrift Savings Plan Income Withholding Order For State Agencies (TSP-CS-1) to indicate a dispute is pending.(d) The Department may not proceed in timely, contested levy actions involving amounts less than $50.00. The Department sends a Release of Freeze/Levy (CS-EF129) by regular mail to notify the obligor the Department is withdrawing the levy action and releasing the freeze. The Department issues a release to the financial institution or a refund to the obligor. The Release of Freeze/Levy (CS-EF129) is incorporated herein by reference, effective 04/20, (http://www.flrules.org/Gateway/reference.asp?No=Ref-11831).(8) Release of Freeze. (a) In the following circumstances, the Department releases a Notice to Freeze, in full or in part, as appropriate: 1. All or part of the personal property belongs exclusively to a joint owner;2. The Notice to Freeze was issued in error or the amount of past-due or overdue support is less than the amount stated in the Notice to Freeze;3. All or part of the personal property constitutes current earnings exempt from levy in accordance with subsection (11) of this rule;4. A writ of attachment, writ of garnishment, or writ of execution involving the same personal property is in effect when the Notice to Freeze becomes effective;5. The obligor has filed bankruptcy under Chapter 7, 11, 12 or 13 of the U.S. Bankruptcy Code;6. There is an interest in the personal property that is superior to the Department's interest; or7. There is a final order that requries the Department to release the Notice to Freeze.(b) If a levy on an account or securities is not appropriate, the Department sends the custodian a Full/Partial Release of Freeze (CS-EF124). The Full/Partial Release of Freeze (CS-EF124) is incorporated herein by reference, effective 04/20, (http://www.flrules.org/Gateway/reference.asp?No=Ref-11827). If the levy action is for a Thrift Savings Plan account, the Department sends the custodian a Thrift Savings Plan Income Withholding Order For State Agencies (TSP-CS-1) to vacate the action.(c) If a partial levy is appropriate, the Department sends the custodian a Notice of Special Account(s) Release (CS-EF132). The Notice of Special Account(s) Release (CS-EF132) is incorporated herein by reference, effective 04/20, (http://www.flrules.org/Gateway/reference.asp?No=Ref-11834). If the levy action is for a Thrift Savings Plan account,, the Department sends the custodian a Thrift Savings Plan Income Withholding Order For State Agencies (TSP-CS-1) to modify the action.(9) Consent to Levy. (a) In accordance with Section 409.25656(7)(d), F.S., if an obligor who receives a Notice of Intent to Levy consents to the levy in writing, the Department shall levy within the time permitted by paragraph (10)(a) of this rule.(c) If the obligor or a joint owner previously filed an action contesting the intended levy, the action to contest must be withdrawn or otherwise disposed of before the Department accepts the Consent to Levy.(d) Upon receiving a signed and approved Consent to Levy, the Department shall levy on the property.(10) Notice of Levy.(a) Unless the obligor and each joint owner, if any, consents to a levy as provided in subsection (9), the Department may send a Notice of Levy (CS-EF123) to the custodian after the latest of the following time periods:1. Thirty days after the date the custodian receives the Notice to Freeze;2. Thirty days after the earlier of the date the Department mails or hand delivers the Notice of Intent to Levy to the obligor in accordance with subsection (6); or3. If the intended levy is contested in accordance with Sections 409.25656(8) and (9), F.S., the date of a final order authorizing the Department to proceed.(b) If the custodian is holding securities, the Department sends the obligor a Notice of Levy on Securities (CS-EF131) by regular mail. The notice informs the obligor of a seven-day period during which the obligor may instruct the financial institution which securities to sell. The Notice of Levy on Securities (CS-EF131) is incorporated herein by reference, effective 04/20, (http://www.flrules.org/Gateway/reference.asp?No=Ref-11833).(d) The custodian is required to transfer the obligor's personal property to the Department, or pay the Department the amount owed by the obligor, up to the amount of past-due or overdue support stated in the notice, and provide with transmittal of any personal property or payment, the obligor's name, social security number and the control number referenced in the Notice of Levy.(e) If the custodian does not pay the Department the amount due within 20 days after receipt of the Notice of Levy (CS-EF123), or within 60 days after receipt of the Thrift Savings Plan Income Withholding Order For State Agencies (TSP-CS-1), the Department mails the custodian a Request for Compliance with Notice of Levy (CS-EF146). The Request for Compliance with Notice of Levy (CS-EF146) is incorporated herein by reference, effective 04/20, (http://www.flrules.org/Gateway/reference.asp?No=Ref-11835).(11) Limits on Levying Against Current Earnings.(a) If the Department determines the freeze on an obligor's account in a financial institution includes the obligor's current earnings as defined in paragraph (2)(b), the Department may not levy from the current earnings an amount that is greater than the limits on garnishment for child support provided by the Consumer Credit Protection Act (CCPA), 15 U.S.C. 1673(b).(b) Funds in an account that are not current earnings are not subject to the limits in paragraph (11)(a).(c) An obligor who claims the Department has frozen exempt earnings must provide the Department with the following proof concerning the current earnings and the account: 1. The pay date or dates of the current earnings received by the obligor;2. The gross amount of the current earnings;3. The amount of mandatory deductions from current earnings for state, federal and local taxes; Social Security taxes; and Medicare taxes;4. The net amount of the current earnings;5. The pay interval for the current earnings, such as weekly, bi-weekly or monthly;6. The amount of current earnings deposited in the account and the deposit date or dates; and 7. The dates and amounts of all debits and withdrawals from the account, from the first date of deposit of current earnings until the date of the freeze.(d) Upon receipt of the proof required by paragraph (11)(c), the Department shall determine if the amount that has been frozen includes exempt earnings. Upon determining that exempt earnings have been frozen, the Department shall notify the financial institution to release the exempt portion of current earnings from the Notice to Freeze.(12) Levy Actions in Two or More Cases.(a) If an obligor has two or more cases that meet the criteria in subsection (3), the Department includes all of the cases in a single levy action. The past-due or overdue support amount owed in each case is added together and the total amount owed for all cases appears on notices issued in accordance with this rule.(b) Upon receipt from the custodian of proceeds from the obligor's personal property, the Department allocates the proceeds among the obligor's cases pro rata, in the same proportion as the total amount of past-due or overdue support owed in each case as of the date the Notice of Levy was issued.(13) FAST Levy; Electronic Notification and Data Exchange.(a) Financial institutions may elect to participate in the Federally Assisted State Transmitted (FAST) Levy service sponsored by the federal Office of Child Support Enforcement. With FAST Levy, the Department notifies participating financial institutions of pending levy actions by periodically transmitting an electronic data file to the federal Office of Child Support Enforcement, instead of serving the financial institution with notices by registered mail for each obligor. The financial institution receives the Department's data by accessing the secure website maintained by the federal office and processes the Department's data to determine the customer accounts levied upon and the amounts of the levies. The financial institution provides the data to the FAST Levy central site, which generates a response file to the Department. Using FAST Levy, participating financial institutions are able to process levy notices from multiple states in a standardized, automated manner.(b) To learn more about Fast Levy, financial institutions may contact the federal Office of Child Support Enforcement at FASTLevy@acf.hhs.gov. The federal Agreement to Receive Electronic Lien/Levy Notices (FAST Levy Financial Institution Profile Form) is incorporated herein by reference, effective 10/21 (http://www.flrules.org/Gateway/reference.asp?No=Ref-13851). Financial institutions that elect to participate in FAST Levy must enter into a memorandum of understanding with the Department that is the same or substantially similar to Memorandum of Understanding, Child Support Garnishment Actions and Electronic Data Exchange (CS-EF314), incorporated herein by reference, effective 10/21 (http://www.flrules.org/Gateway/reference.asp?No=Ref-13852).(14) Levy Actions Against Jointly Owned Property.(a) When a levy action concerns jointly owned property, the Department provides the same notice and opportunity for a hearing to a joint owner as the Department provides to the obligor. 1. The Notice of Intent to Levy informs a joint owner that the joint owner has the same right to contest the levy as the obligor.2. The joint owner may contest the levy action in the same manner as the obligor, as provided by Section 409.25656(8), F.S., within 21 days after receipt of the Notice of Intent to Levy.(b) If the Department is informed that the joint owner has not received the Notice of Intent to Levy provided to the obligor, the Department shall serve the joint owner in person, or send the individual a Notice to Joint Owner Intent to Levy (CS-EF127), and a copy of the Notice of Intent to Levy previously served on the obligor by certified mail, return receipt requested. The joint owner may contest the levy within 21 days after the date of receipt of the Notice to Joint Owner Intent to Levy. The Notice to Joint Owner Intent to Levy (CS-EF127) is incorporated herein by reference, effective 04/20, (http://www.flrules.org/Gateway/reference.asp?No=Ref-11829).(c) The Department may not levy upon the portion of the obligor's jointly owned personal property that the Department determines belongs exclusively to a joint owner. Upon determining that a portion of the personal property belongs exclusively to the joint owner, the Department shall release that portion of the property from the Notice to Freeze.1. The obligor and joint owner have the burden of proving that property subject to a Notice to Freeze belongs exclusively to the joint owner and must provide proof to the Department, which may include the following:a. Documentation of deposits made by the joint owner;b. Documentation that deposits were exclusively from the joint owner's funds;c. Account statements that correspond to the time period of the joint owner's deposits; ord. Any other documentation that proves the personal property belongs exclusively to the joint owner.2. If the obligor and joint owner do not provide proof in accordance with subparagraph 1., the Department shall deny the claim.(d) An agreement between the Department and the obligor and joint owner to partially release a Notice to Freeze on jointly owned property must be in writing and fully executed by all parties to the agreement.Fla. Admin. Code Ann. R. 12E-1.028
Rulemaking Authority 409.2557(3)(i), 409.25656(11) FS. Law Implemented 409.25656 FS.
New 4-3-02, Amended by Florida Register Volume 46, Number 063, March 31, 2020 effective 4/16/2020, Amended by Florida Register Volume 46, Number 210, October 27, 2020 effective 11/12/2020, Amended by Florida Register Volume 47, Number 218, November 9, 2021 effective 11/21/2021, Amended by Florida Register Volume 48, Number 101, May 24, 2022 effective 6/9/2022, Amended by Florida Register Volume 49, Number 168, August 29, 2023 effective 9/14/2023.New 4-3-02, Amended 4-16-20, 11-12-20, 11-21-21, 6-9-22, 9-14-23.