Presentation on theme: "Ann Perko, Esq., Florida Legal Service, Inc. Filing Fee Webinar Ann Perko, Esq., Florida Legal Service, Inc. Original broadcast: June 29, 2009."— Presentation transcript:
Ann Perko, Esq., Florida Legal Service, Inc. Filing Fee Webinar Ann Perko, Esq., Florida Legal Service, Inc. Original broadcast: June 29, 2009
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Filing Fee Webinar Civil Filing Fee Waiver for Indigent Parties Restored in SB 1718
Success! After five years of hard work by the legal services community and with the help of the Florida Bar, waiver was restored in SB 1718, a comprehensive fee restructuring bill designed to increase funding for the courts.
Effective Date The portion of SB 1718 restoring waiver of civil filing fees for indigent clients goes into effect on July 1, 2009.
Application for Indigent Status: Your client’s process of applying for indigent status in F.S. 57.082 should not change. However, once your client is found indigent, the filing fee will be completely waived under new language in F.S. 57.081(1).
New language in F.S. 57.081(1): legal right to waiver of filing fee 57.081 Costs; right to proceed where prepayment of costs and payment of filing fees waived. (1) Any indigent person, except a prisoner as defined in s. 57.085, who is a party or intervenor in any judicial or administrative agency proceeding or who initiates such proceeding shall receive the services of the courts, sheriffs, and clerks, with respect to such proceedings, despite his or her present inability to pay for these services. Such services are limited to filing fees; service of process; certified copies of orders or final judgments; a single photocopy of any court pleading, record, or instrument filed with the clerk; examining fees; mediation services and fees; private court-appointed counsel fees; subpoena fees and services; service charges for collecting and disbursing funds; and any other cost or service arising out of pending litigation. In any appeal from an administrative agency decision, for which the clerk is responsible for preparing the transcript, the clerk shall record the cost of preparing the transcripts and the cost for copies of any exhibits in the record. Prepayment of costs to any court, clerk, or sheriff is not required and payment of filing fees is not required in any action if the party has obtained in each proceeding a certification of indigence in accordance with s. 27.52 or s. 57.082.
New language in 57.082(1): indigency application procedure 57.082 Determination of civil indigent status. (1) APPLICATION TO THE CLERK. A person seeking appointment of an attorney in a civil case eligible for court- appointed counsel, or seeking relief from payment of filing fees and prepayment of costs under s. 57.081, based upon an inability to pay must apply to the clerk of the court for a determination of civil indigent status using an application form developed by the Florida Clerks of Court Operations Corporation with final approval by the Supreme Court.
Payment Plan: New language in 57.082(6) provides that filing fees that are waived should not be included in a payment plan. If there are other costs that your client is unable to pay up front, those costs should be included in a payment plan.
New language in 57.082(6) (6) PROCESSING CHARGE; PAYMENT PLANS.A person who the clerk or the court determines is indigent for civil proceedings under this section shall be enrolled in a payment plan under s.28.246 and shall be charged a one- time administrative processing charge under s. 28.24(26)(c). A monthly payment amount, calculated based upon all fees and all anticipated costs, is presumed to correspond to the persons ability to pay if it does not exceed 2 percent of the persons annual net income, as defined in subsection (1), divided by 12. The person may seek review of the clerks decisions regarding a payment plan established under s. 28.246 in the court having jurisdiction over the matter. A case may not be impeded in any way, delayed in filing, or delayed in its progress, including the final hearing and order, due to nonpayment of any fees or costs by an indigent person. Filing fees waived from payment under s. 57.081 may not be included in the calculation related to a payment plan established under this section.
Delay of Case: Aside from the filing fee, any remaining costs can not required to be paid up front. The law was amended to provide that the case may not be impeded in any way… due to nonpayment of any fees or costs by an indigent person. F.S. 57.082(6)
Recovery of Fees by Prevailing Party The law was amended to provide that if a prevailing party is awarded costs in an action, that those costs should be applied to filing fees or costs that have not been paid. F.S. 57.081(3) If an applicant prevails in an action, costs shall be taxed in his or her favor as provided by law and, when collected, shall be applied to pay filing fees or costs that have not been paid. Family Law Cases- F.S. 61.535 This raises a lot of questions
New and Increased Fees New Counterpetition Fee of $295 in response to AG opinion finding (see 34.041(1)(c)) Increased civil fees in F.S. 28.241(1)(a) to $395 with exception of family related cases which remain at $295 (see F.S. 28.241(1)(b)) Graduated foreclosure filing fees up to $1900 based on value of property (see 28.241(2)(d)) Increased probate fees (see F.S. 28.2401) Make sure your client doesn’t pay these fees!
Fees other than filing fees Service of process fees – going up to $40 due to SB 412 (effective date also 7/1/09) Mediation fees (see F.S. 44.108) Parenting class fees Payment plan fees All should go onto payment plan, but clerks are stuck administering payment plans and only keeping $25
Parent Coordination Fees New language in SB 904 prevents indigent people from being charged Parenting Coordination Fees they cannot afford. F.S. 61.125(6)(b)If a party is found to be indigent based upon the factors in s. 57.082, the court may not order the party to parenting coordination unless public funds are available to pay the indigent party’s allocated portion of the fees and costs or the nonindigent party consents to paying all of the fees and costs. Effective Date 10/1/09
Forms and Procedures We don’t expect any new forms for the indigency application Continue following the basic procedures set out in 57.081 and 57.082, and don’t let fees and costs be a barrier to your client’s access to courts
Client Access to Court Checklist: Did the clerk find your client indigent? If not, ask for judicial review of the denial of status of indigency. Was the filing fee completely waived? Make sure the filing fee is not in the payment plan & ask for judicial review if payment plan is incorrect. Is $25 administrative fee being required to be prepaid prior to filing? If so, ask to build into payment plan. Are other costs being asked for up front, such as sheriff’s service of process, mediation fees, parenting class fees? If so, ask for them to be put into payment plan. Is income being imputed to clients with no income? If so, ask for judicial review of payment plan. Is spouse’s income being considered as accessible to client when they are separated/in DV situation? If so, ask for judicial review. Is the progress of the case being held up for lack of payment (refusing to file the case, set hearings or give final orders)? If so, appeal. Is the client facing illegal collection threats or practices? If so, appeal.
Potential Problems Domestic Violence Injunctions are still available to all victims for no charge (see AG opinion issued June 19, 2009 finding no authority for clerks to charge for DV injunctions More stringent review of Indigency Application, possibly more frequent denials Using spouse’s income as household income even when not available to other spouse
Let us know what’s going on Please email me at email@example.com if you have any problems with waiver of filing fees or any other cost firstname.lastname@example.org Use the appeal/judicial review procedures if your client’s indigency application is denied unfairly