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Cognovit Provisions

Problems with Enforcing Your Out of State Judgment in Florida:

It may be unenforceable in Florida if it was obtained through a cognovit (confession of judgment) provision.

Cognovit Provisions

There are not many reasons Florida Courts will not recognize a judgment obtained in another state. But a judgment obtained through a cognovit provision, if challenged, will not be recognized in Florida. A cognovit provision is defined in legal documents as a clause in an agreement in which one party authorizes the entry of judgment against himself or herself in the event of his or her breach or default. Technically, Florida Statute section 55.05 states that any general release of error, made before suit is brought is null and void. In addition, a power of attorney given to the bank or other person to confess a judgment is also not enforceable in Florida.

Some states, such as Delaware, Maryland, Ohio and Virginia allow various types of cognovit provisions. In Virginia, for example, a judgment will enter against a debtor on a Note just by the Note holder (given Power of Attorney) submitting the note with the proper cognovit provision.   Service on the debtor in such a case never occurs and the judgment will enter.

Florida, however, will likely not enforce these types of judgments if the debtor moves to Florida. The Florida courts have held that public policy prohibits the enforcement of such judgments in Florida and also under Florida Law.

So what happens when the creditor brings this type of judgment to Florida? First, the debtor may challenge the foreign judgment obtained with a cognovits provision as void. Further, even if not challenged by the debtor, the creditor may think it is home free. However, the judgment is likely void in Florida and thus it is possible the judgment obtained out of state with a cognovit provision, could be challenged at any time under Florida Rule of Civil Procedure 1.540(b)(4).   The creditor must be careful to watch the expiration of the statute of limitations in the foreign state since if the creditor has to redo the judgment, the time for filing a new suit may have expired.

Ultimately, if the creditor intends to enforce its judgment in Florida, personal service should occur and a cognovit provision should not be used to obtain the judgment.

Theodore J. Hamilton, Esq. 

Post Author: Wetherington Hamilton

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