Q: How to ask for sporadic payment records for an employee/contractor in a post judgment subpoena more than 1099/W2?
Realtors in FL are considered employees by the state but have contracts & are treated as a contractor by the "employer"/brokerage. Per their license & FL DBPR agents are designated employees. Per FL by virtue of their professional license agents can establish business accounts & can act/appear as a business entity without filing any additional DBA..Agents generally are given 1099 for tax purposes. All state recognized real estate transactions:(including pending ones) are "owned" by the brokerage & not the agent nor could the agent change brokerages & take a "portfolio" of pending real estate transactions with them.
A show cause hearing is set for the overdue fact sheet. Sending a subpoena to the brokerage for business records as it relates to the debtor's past, current & pending transactions for more information than just 1099's. Will be asking for records (besides normal) for "event or real estate transaction logs or databases for past, current and pending."
A: There is a post judgment process to obtain earning and asset information. If it has not already been done, you need to serve the debtor with a Fact Information Sheet. If they fail to provide the information, the next step is to subpoena the person to provide the information or appear for deposition. If that fails, then you have to resort to the court system for subsequent orders. Your best bet will be to consult with an attorney to assist you with the collections process. Best of Luck! Jennifer
A: This is a hearing to show cause why the judgment debtor should not be held in contempt of court? And you are preparing to get a subpoena duces tecum, so as to require the records custodian of the brokerage to appear at that hearing and bring with [the records custodian] certain records? Why are payments received by the judgment debtor from the brokerage pertinent? In other words, what sort of a lawsuit was it that resulted in the judgment?
A: I agree, the proper process is serve the fact information upon them via process server/sheriff and then ask the court for contempt if the information is not provided. You are entitled to bank records etc which will show the transfers from broker; you do not need to subpoena the brokerage (and likely will not be able to). "Realtors in FL are considered employees by the state but have contracts and are treated as a contractor by the "employer"/brokerage"" is incorrect as realtors are independent contractors (1099) of the brokerage as commission workers and do not receive W-2s (being one myself as well as attorney). The only people who may be employees are the brokerage staff, but commission realtors are not.
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