Sylvia Higgins and Collier Higgins v. Dyck O'Neal, Inc.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

SYLVIA HIGGINS and NOT FINAL UNTIL TIME EXPIRES TO

COLLIER HIGGINS, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

Appellants,

CASE NO. 1D15-4784

v.

DYCK-O'NEAL, INC.,

Appellee.

__________________________/

Opinion filed June 9, 2016.

An appeal from the Circuit Court for Duval County.

Lawrence P. Haddock, Judge.

Austin Tyler Brown of Parker & DuFresne, P.A., Jacksonville, for Appellants.

Susan B. Morrison, Tampa, for Appellee.

THOMAS, J.

Appellants, Collier Higgins & Sylvia Higgins, seek review of an order

denying their motion for relief from a Final Default Judgment, wherein the trial

court determined that Appellants were indebted to Appellee, Dyck-O’Neal, Inc.

Appellants argued below and reassert here that the trial court lacked subject matter

jurisdiction and thus erred in denying their motion for relief, based in part on our

decision in Reid v. Compass Bank, 164 So. 3d 49 (Fla. 1st DCA 2015). Appellants

argue that Appellee was precluded from filing an action at law seeking damages

based on Appellants’ failure to satisfy their promissory note on the property at

issue, because Appellees had filed a prior foreclosure action which included a

prayer for a deficiency judgment, and the trial court in that action reserved

jurisdiction to enter a deficiency judgment. We agree with Appellants, and for the

reasons stated herein, we reverse the trial court’s denial of Appellants’ motion for

relief from judgment.

Facts

In 2009, Freedom Mortgage Corporation (Freedom) sued Appellants in

Duval County to foreclose the mortgage on Appellants’ property. It is undisputed

that in its complaint, Freedom included a request for a deficiency judgment against

Appellants, if the proceeds were insufficient to pay Freedom’s claim. In

September 2009, the trial court entered a Final Summary Judgment in Foreclosure

that retained jurisdiction “for the purpose of making any further orders as may be

necessary and appropriate herein, including but not limited to all claims for

deficiencies.” (Emphasis added.) After the foreclosure sale, the Judgment and

Note was assigned to Appellee.

Almost five years later, Appellee filed a new Complaint in law against

Appellants in Duval County, seeking damages as a result of Appellants’ failure to

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satisfy the promissory note on the property. Appellants did not respond to the

Complaint, and Appellee moved for default, which was granted. Appellee filed a

motion for final default judgment along with supporting affidavits. The trial court

ultimately entered a Final Default Judgment against Appellants, totaling

$89,724.15.

Approximately 11 months later, Appellants filed a motion for relief from

judgment pursuant to rule 1.540(b), Florida Rules of Civil Procedure, asserting the

final judgment was void, as it was entered without subject matter jurisdiction,

citing Compass Bank. Appellee filed a memorandum of law in opposition to

Appellants’ motion for relief from judgment, asserting in part that our decision in

Compass Bank which discussed the relevant issue here was dicta. Following a

hearing, the trial court denied Appellants’ motion for relief from judgment, and

this appeal followed.

Analysis

Appellants argue here that Appellee was prevented from filing an action at

law, based on the prayer for a deficiency judgment in the prior foreclosure action,

where the prior foreclosure court unequivocally reserved jurisdiction to enter a

deficiency judgment. It is undisputed that the argument on appeal concerns an

issue of law, which is reviewed de novo. Compass Bank, 164 So. 3d at 52 (citing

Fla. Ins. Guar. Ass'n, Inc. v. Bernard, 140 So. 3d 1023, 1027 (Fla. 1st DCA 2014)).

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In addressing the legal issue presented here, we return to the analysis of this

court’s decision in Compass Bank:

Prior to June 7, 2013, section 702.06, Florida Statutes, which is

entitled “Deficiency decree; common-law suit to recover deficiency,”

provided:

In all suits for the foreclosure of mortgages heretofore or

hereafter executed the entry of a deficiency decree for

any portion of a deficiency, should one exist, shall be

within the sound judicial discretion of the court, but the

complainant shall also have the right to sue at

common law to recover such deficiency, provided no

suit at law to recover such deficiency shall be

maintained against the original mortgagor in cases

where the mortgage is for the purchase price of the

property involved and where the original mortgagee

becomes the purchaser thereof at foreclosure sale and

also is granted a deficiency decree against the original

mortgagor.

(Emphasis added). Section 702.06 was amended in 2013 to read:

In all suits for the foreclosure of mortgages heretofore or

hereafter executed the entry of a deficiency decree for

any portion of a deficiency, should one exist, shall be

within the sound discretion of the court; however, in the

case of an owner-occupied residential property, the

amount of the deficiency may not exceed the difference

between the judgment amount, or in the case of a short

sale, the outstanding debt, and the fair market value of

the property on the date of sale. For purposes of this

section, there is a rebuttable presumption that a

residential property for which a homestead exemption for

taxation was granted according to the certified rolls of the

latest assessment by the county property appraiser, before

the filing of the foreclosure action, is an owner-occupied

residential property. The complainant shall also have

the right to sue at common law to recover such

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deficiency, unless the court in the foreclosure action

has granted or denied a claim for a deficiency

judgment.

See Ch. 13–137, § 5, Laws of Fla. (Emphasis added).

In addressing Appellant's argument, a review of the case law

construing section 702.06 is instructive. In Younghusband v. Ft.

Pierce Bank & Trust Co., 100 Fla. 1088, 130 So. 725, 727 (1930), the

supreme court held that “[i]f no deficiency judgment is entered in

foreclosure sale, it is clear that a suit at law for any amount still due is

available to the holder.” In Cragin v. Ocean & Lake Realty Co., 101

Fla. 1324, 135 So. 795, 797 (1931), the supreme court set forth that a

plaintiff “having applied for and obtained a deficiency decree in their

favor in the court of equity, could not, under the act of 1927, go into a

court of law and maintain therein suits for the recovery of the balance

due on the notes.” In Provost v. Swinson, 109 Fla. 42, 146 So. 641,

643 (1933), a case relied upon by Appellant, the supreme court set

forth, “When the complainant filed his bill in equity to foreclose the

mortgage and therein prayed for a deficiency decree, he elected that

forum in which to have his right adjudicated and became bound by

that choice.”

In Belle Mead Development Corp. v. Reed, 114 Fla. 300, 153 So. 843,

844 (1934), another case relied upon by Appellant, the supreme court

explained that in August 1928, the appellee executed three promissory

notes payable to the McElroys. It was alleged that the notes were

assigned and delivered before maturity to the appellant, the plaintiff in

the case. Id. The appellant filed suit for the foreclosure of the

mortgage, praying for a deficiency decree. Id. A foreclosure decree

was obtained, the property was sold, and the proceeds were applied to

the payment of the debt. Id. The appellant asked for a deficiency

decree which was “resisted” by the “defendant,” and the chancellor

refused to enter a deficiency judgment. Id. The appellant subsequently

filed an action at law to recover on the promissory notes, and the trial

court “struck those pleas.” Id. The supreme court, in affirming, set

forth, “In the case at bar there was a special prayer for affirmative

relief [for a deficiency decree]. The complainant thereby elected that

forum in which to have its rights adjudicated and became bound by

that choice.” Id. The supreme court further set forth, “After

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specifically praying for a deficiency, the complainant may waive the

relief prayed for in that regard, but it does not avoid the choice of the

forum by not applying for the deficiency decree.” Id.

In Reid v. Miami Studio Properties, 139 Fla. 246, 190 So. 505, 505

(1939), a case relied upon by Appellee in support of its argument that

the action at law was permissible, the supreme court noted that the

complainant, in his bill to foreclose, prayed for a deficiency decree in

the event the property at issue did not bring enough to pay the amount

of the indebtedness and costs. The Chancellor did not enter a

deficiency decree and did not consider this phase of the prayer for

relief. Id. The supreme court explained that the sole question

presented was “whether or not under the facts stated the plaintiff Reid

can now maintain an action at law to recover the amount of the

deficiency judgment which he prayed for in the foreclosure but which

prayer was not considered.” Id. The supreme court noted that the

defendant contended that the question should be answered in the

negative because “the plaintiff in error elected his forum and is bound

by the result of his election.” Id. at 505–06. The defendant relied upon

Provost and Belle Mead in support of its argument. Id. at 506. The

supreme court set forth:

We understand the law to be that where there is no prayer

for a deficiency and where one is not sought or entered in

the foreclosure proceeding the law courts may be

resorted to to recover one. Since the entry of a deficiency

decree under Section 5751, Compiled General Laws of

1927, is within the sound discretion of the Chancellor

and if entered, the one in whose favor it is entered may

resort to a suit at law to recover it, we see no basis for the

logic that he is precluded from an action at law to recover

one if the chancellor is importuned to enter it and

declines to consider the question or to make any ruling

thereon.

The cases relied on by defendant in error have been

examined. They involve other factual situations affecting

deficiencies but we do not consider that they rule the

question we have here nor are we convinced that the

elements essential to constitute an election of remedies

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are present.

In fine, we understand Section 5751, Compiled General

Laws of 1927, to mean that if a deficiency decree is

asked for in a foreclosure and granted, that settles the

question of what forum may be sought for relief but if

not asked for or if asked for and overlooked or not

considered, the right of the claimant is not affected.

He may sue at law and recover such portion as he

may prove himself entitled to.

Id. (Emphasis added).

In Crawford v. Woodward, 140 Fla. 38, 191 So. 311, 311 (1939), the

supreme court, relying on Provost, Cragin, and Belle Mead and

finding Reid distinguishable, determined that the plaintiff could not

maintain an action at law after the foreclosure where the plaintiff

prayed for a deficiency decree, notwithstanding the facts that the

plaintiff later stated in the confirmation of the foreclosure sale that

“Complainants are not asking for a deficiency decree” and none was

rendered by the chancellor.

In Luke v. Phillips, 148 Fla. 160, 3 So.2d 799, 799 (1941), the

supreme court addressed the plaintiff's contention that Reid overruled

Belle Mead. The supreme court, without setting forth the facts of the

case, set forth, “[T]he instant case is ruled by Reid ... wherein we

pointed out that the facts of that case were distinct from those in the

Belle Mead ... case and that line of cases which were not inferentially

or otherwise overruled.” Id.

In McLarty v. Foremost Dairies, 57 So.2d 434, 434 (Fla.1952), the

supreme court considered a petition for writ of certiorari to review a

judgment of the Duval County Circuit Court which affirmed the

judgment of the Civil Court of Record for Duval County. The

supreme court explained that the respondent was the owner and holder

of a note secured by chattel mortgage and brought suit in Volusia

County against the petitioner to foreclose the mortgage. Id. In the suit

to foreclose, the respondent prayed for a deficiency decree. Id. No

further action was taken with regard to the prayer for deficiency. Id.

The personal property mortgaged was sold pursuant to a final decree

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entered in the foreclosure proceedings and after crediting the proceeds

of the sale to the note, there remained due and owing to the plaintiff

$1,548.41. Id. “At no time during the entire proceedings was any

request made for a deficiency nor was the matter called to the

attention of the Court in any way.” Id. The only time or place where

the matter of deficiency appeared in the proceedings was the prayer

for deficiency contained in the bill of complaint. Id. The respondent

“[i]n due course” filed suit in Duval County for the balance due under

the note after crediting the proceeds of the foreclosure sale. Id. The

petitioner, the defendant below, pleaded as a defense the foreclosure

suit and the prayer for deficiency contained in the bill of complaint.

Id. It was the contention of the petitioner that the respondent “having

prayed for a deficiency without obtaining one, could not sue upon the

note to recover the balance due upon the mortgage note.” Id.

The supreme court found that the case was controlled by Reid and

Luke and noted the alleged confusion between those cases and the

cases of Crawford and Belle Mead. Id. The supreme court explained

that although the facts in Luke did not state that a deficiency decree

was prayed for, its review of the record in that case showed that the

bill to foreclose the mortgage contained a prayer for a deficiency

judgment. Id. at 435. It also explained that the facts of the case at hand

were identical to the facts of Luke where the “sale of the mortgage

property and disbursements were approved and confirmed by the

Chancellor but no deficiency decree was entered or requested.” Id.

After noting that its holding in Reid was reaffirmed in Luke, the

supreme court set forth, “If the opinion in Reid ... as affirmed in Luke

... is in conflict with any other holdings with reference to the subject

matter, such holdings, or opinions, are over-ruled to the extent of such

conflict.” Id. The supreme court found no departure from the essential

requirements of the law in the case before it. Id.

Thereafter, in First Federal Savings & Loan Association of Broward

County v. Consolidated Development Corp., 195 So.2d 856, 858 (Fla.

1967), the supreme court addressed McLarty, Reid, and Luke. In First

Federal Savings, the petitioner brought a foreclosure suit in Palm

Beach County and prayed for a deficiency decree if the proceeds of

the mortgage sale were less than the amount due on the mortgage. Id.

at 857. The final decree of foreclosure expressly reserved jurisdiction

in the court for the determination of any motion for a deficiency

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decree. Id. The petitioner then brought an action to recover the

deficiency in Broward County and represented to the foreclosure court

in Palm Beach County that inasmuch as no motion had been made

there for a deficiency decree, there was no longer a need for retention

of jurisdiction of the cause in that court. Id. The foreclosure court

entered an order terminating jurisdiction. Id. The Broward County

court dismissed the case before it, ruling that the petitioner, after

having selected its forum in Palm Beach County, should not be

permitted to subject the respondents to further harassment and

expense. Id. The dismissal was appealed to the Fourth District Court

of Appeal. Id. After noting that the abandonment of jurisdiction in

Palm Beach County did not occur until twenty-six days after the

action at law was filed in Broward County, the supreme court

explained that the Fourth District decided the case “on the principle

that a court may not switch its jurisdiction, or power, on and off as

one would an electric light.” Id. at 857–58. The supreme court also

noted the Fourth District's determination that “[f]or the purposes of

deficiency decrees vel non this power is not for the benefit of the

court; hence, it cannot waive its jurisdiction in that regard. It may

refuse or refrain from exercising the power, but the chancellor cannot

abjure a court of equity of its innate or inborn jurisdiction by mere

words of jacitation.” Id. at 858. The Fourth District concluded that the

Palm Beach County Circuit Court still had jurisdiction of the subject

matter and the question of a deficiency decree and held that the

dismissal in Broward County constituted a dismissal without prejudice

to the plaintiff's right to have the question of deficiency determined by

the Palm Beach County Circuit Court. Id.

On first examination of the petition for certiorari, the supreme court

concluded that argument should be heard on the matter because of

apparent conflict with its prior decisions. Id. The supreme court

summarized some of its prior decisions, including Reid, McLarty, and

Luke. Id. It distinguished Reid because in the case at hand “the request

[for a deficiency decree] was made in the complaint and apparently

was not immediately considered but was deferred as the court retained

jurisdiction to settle any motion for deficiency.” Id. The supreme

court set forth, “So it may be said that the request for deficiency was

neither considered nor overlooked. Here again on the salient facts the

plaintiff was not at this point free to seek an adjudication elsewhere,

hence a conflict was not developed.” Id. The supreme court stated of

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McLarty, “[T]here was a prayer for a deficiency but thereafter request

for that relief was ignored.” Id. It found that the holding in Luke was

essentially the same as the one in Reid. Id. The supreme court was

ultimately unable to discover the conflict that would vest jurisdiction

with it because “there appears to be no inconsistency between what

was held here and what was decided in the cited cases.” Id. It set

forth, “There has been no disturbance of the rule that if a deficiency is

sought and the relief is overlooked or not considered, the one entitled

to the recovery of the balance of the debt left over after the proceeds

of the mortgage sale have been credited may sue for the remainder at

law.” Id. at 859. The court found, however, that the “principle would

have to be stretched out of form to condone what the plaintiff

undertook in this case.” Id. It concluded that the Fourth District's

decision was sound and did not disrupt the law that “appears firmly

established.” Id.

In support of its argument on appeal that its action at law was

permissible, Appellee relies not only on Reid but also upon the plain

language of section 702.06, both before and after the 2013

amendment. While we agree that the plain language of both versions

of section 702.06 supports an argument that a party may file an action

at law to recover a deficiency so long as a trial court has not actually

ruled upon a request for a deficiency judgment in the foreclosure case,

cases such as Belle Mead and First Federal Savings suggest

otherwise. We note also that any question as to whether Reid permits

a party to file an action at law after including a prayer for a deficiency

judgment in a foreclosure complaint and after the trial court reserves

jurisdiction to consider such a request was resolved by the supreme

court in First Federal Savings. There, as here, the foreclosure

complaint contained a prayer for a deficiency decree, and the

foreclosure judgment expressly reserved jurisdiction to rule upon a

deficiency request. As the supreme court noted in First Federal

Savings, there was not a reservation of jurisdiction in Reid. As such,

Appellee's reliance upon Reid is misplaced.

Notwithstanding the fact that First Federal Savings supports the

argument that a party is not entitled to pursue an action at law on a

promissory note where that party includes a prayer for a deficiency

judgment in its foreclosure complaint and the trial court reserves

jurisdiction to enter a deficiency judgment, we have determined that

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affirmance is warranted in this case based upon the circumstances

presented. Unlike the situation in First Federal Savings where the

foreclosure court entered an order terminating its jurisdiction, the trial

court in this case granted Appellee's motion to consolidate the

foreclosure case and the action at law. Therefore, in contrast to the

Palm Beach County Circuit Court in First Federal Savings, the trial

court in this case still had jurisdiction in the foreclosure case.

Although Appellant cites case law for the proposition that

consolidated cases maintain their independent status with respect to

the rights of the parties involved, Appellant does not contend on

appeal that the trial court erred in granting Appellee's motion to

consolidate or in denying his motion to dismiss the action at law. We

note also that although Appellant moved to dismiss the action at law

prior to Appellee moving for consolidation, the record does not

contain any argument put forth below by Appellant in opposition to

consolidation. As such, any question as to whether consolidation was

proper is not before us.

Compass Bank, 164 So. 3d at 52-57 (footnotes omitted).

Regardless of whether this prior analysis on the merits of the issue was dicta

in Reid, we now adopt this analysis in our holding here. And we disagree with our

sister court’s holding in in Garcia v. Dyck-O’Neal, Inc., 178 So. 3d 433 (Fla. 3d

DCA 2015), that the revised relevant statutory language compels a different result.

The facts in Garcia are very similar to this current appeal. In 2009,

BAC Home Loans Servicing brought a successful foreclosure action against Garcia

and others, and the prayer for relief included the court taking jurisdiction for the

purpose of a deficiency judgment. 178 So. 3d at 434. The final judgment of

foreclosure reserved jurisdiction to adjudicate any claim seeking a deficiency

judgment. Id. After the foreclosure sale, the appellee was assigned the judgment

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and note, and filed a separate action in the same county as the foreclosure action

against Garcia seeking the deficiency. Id. Garcia did not respond, the clerk’s

default was entered in September 2014, and the appellee moved for entry of a final

default judgment. Id. Garcia filed a motion to dismiss, arguing that the trial court

lacked subject matter jurisdiction of the deficiency action because BAC sought

deficiency relief and the foreclosure court expressly retained jurisdiction to

adjudicate the deficiency. Id. The trial court rejected this argument, and Garcia

appealed, relying on First Federal Savings and Compass Bank.

The Third District found that the portions of the opinions relied upon by

Garcia were dicta and, in relevant part, held:

A. First Federal Savings' Dicta

In First Federal Savings, the plaintiff obtained a judgment of

foreclosure in Palm Beach County; the foreclosure court retained

jurisdiction to determine a deficiency judgment. The plaintiff then

filed an action in Broward County to recover the deficiency. On

plaintiff's motion, the circuit court in Palm Beach County terminated

its jurisdiction. The Broward County circuit court, however, dismissed

the case because the Palm Beach County circuit court originally had

retained jurisdiction. First Fed. Sav., 195 So.2d at 857.

The Fourth District Court of Appeal held that the Palm Beach County

circuit court should not have abandoned its jurisdiction. Initially, the

Florida Supreme Court granted certiorari review based on an apparent

conflict among the districts. In discharging the writ of certiorari,

however, the Florida Supreme Court determined that no conflict

existed after all. In its conclusion, the Florida Supreme Court's

glancing reference to the rule for recovering a deficiency judgment

does not constitute the holding of the case. First Fed. Sav., 195 So.2d

at 859.

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...

C. Statutory Authority Eclipses Dicta

When the clear and unambiguous language of a statute commands one

result, as here, while dicta from case decisions might suggest a

different result, we must apply the statute so as to give effect to

legislative intent. Citizens Prop. Ins. Corp. v. Perdido Sun Condo.

Ass'n, Inc., 164 So.3d 663, 666 (Fla.2015). In determining legislative

intent, we first look to the language of the statute. State v. Hackley, 95

So.3d 92, 93 (Fla.2012) (“The first place we look when construing a

statute is to its plain language—if the meaning of the statute is clear

and unambiguous, we look no further.”).

We need look no further than the plain language of section 702.06.

The dicta in First Federal Savings and Compass Bank does not carry

the weight of authority of section 702.06 as it is now constituted. The

remedial nature of the 2013 amendment to section 702.06 militates

against our further interpreting an inconsistent body of case law.

178 So. 3d at 435-36 (footnotes omitted).

We respectfully disagree with the Third District’s opinion, which does not

dissuade us from adopting this court’s analysis in Compass Bank. In particular, we

cannot ignore that part of the supreme court’s First Federal Savings’ holding that

its certiorari jurisdiction was unadvisedly granted, based on the fact that the Fourth

District’s underlying opinion in First Federal Savings did not disrupt the law that

appeared firmly established, and the facts of the case were specifically

distinguishable from Reid, as that prior Florida Supreme Court opinion did not

involve a reservation of jurisdiction like First Federal Savings. Furthermore, we

cannot read the statutory language to effect a monumental change in the law,

which would allow a mortgagee to sue to foreclose on the mortgaged property,

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successfully request the court to reserve jurisdiction to enter a deficiency judgment

in the event of a shortfall after the sale of the property, and then after the court

reserves jurisdiction at the request of the mortgagor (or the successor), then permit

the mortgagor to seek a deficiency judgment at common law. The statute

expressly prohibits such a result if the original suit in foreclosure results in an

order granting or denying the deficiency judgment. In our view, when the original

court in foreclosure reserves jurisdiction to grant or deny the deficiency judgment,

the statute cannot be logically or fairly read to permit the plaintiff in the original

action to disregard the court’s reservation of jurisdiction, and file another action at

law. When the court in the foreclosure action has been requested to grant a

deficiency judgment and has reserved jurisdiction to do so, the plaintiff is bound

by that court’s ultimate exercise of jurisdiction to rule on the matter.

We agree with the federal district court in Wells Fargo Bank, N.A. v. Jones,

2014 WL 1784062 (M.D. La. May 5, 2014), that to interpret this statute as read by

the Third District and asserted by Appellee would permit forum shopping and

contravene the Florida Supreme Court case law to the contrary, which the statute

does not specifically abrogate. In Jones, like here, the lender had sought a

deficiency judgement in the original foreclosure action, that court had reserved

jurisdiction to render such relief, but the lender then sought a deficiency judgment

at common law in federal court, disregarding its earlier request for relief in the

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Florida state court which still retained jurisdiction to grant relief. The court in

Jones stated: “This Court finds that the Florida law providing the lender with ‘the

right to sue at common law to recover such deficiency’ was never meant to apply

to the present situation.” We agree, and further note that the statute cannot be

reasonably read to allow a lender to seek a deficiency judgment in the original

foreclosure action, where the court is granted the discretion to deny such relief, and

retains jurisdiction to do so, and then grant the lender the right to forum shop and

file yet another action based on contract principles where the subsequent court is

not authorized to deny relief in common law, absent unusual circumstances.

Absent specific direction from the legislature, such a reading is not justified.

Rather, we read the revised statutory language as simply clarifying and reiterating

long-standing judicial holdings that if the original foreclosure court ignores a claim

for a deficiency judgment, or one is not sought there, the lender may seek relief at

common law.

As we acknowledged in Compass Bank, “While we agree that the plain

language of both versions of section 702.06 supports an argument that a party may

file an action at law to recover a deficiency so long as a trial court has not actually

ruled upon a request for a deficiency judgment in the foreclosure case, cases such

as Belle Mead and First Federal Savings suggest otherwise.” 164 So. 3d at 56

(emphasis added). We now hold that while the statutory language may “support”

15

such an argument, it does not persuade us that the legislature intended to actually

overrule Florida Supreme Court decisions that address the issue more specifically

and hold to the contrary. Thus, we fully agree with our prior opinion that

Appellee’s reliance on Reid is misplaced, and we hold that a party is not entitled to

pursue an action at law on a promissory note where that party includes a prayer for

a deficiency judgment in its foreclosure complaint and the trial court reserves

jurisdiction to enter a deficiency judgment. Accordingly, we reverse the trial

court’s denial of Appellants’ motion for relief from judgment and remand for the

trial court to void the default judgment.

REVERSED and REMANDED.

LEWIS, J., CONCURS; MAKAR, J., DISSENTING WITH OPINION.

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MAKAR, J., dissenting.

A final judgment of foreclosure entered against Sylvia and Collier Higgins

resulted in their home being sold at auction. Dyck-O’Neal, Inc., which was

assigned the judgment and underlying note, sued in a separate proceeding to collect

the deficiency between the amount due on the note and the property’s value. A

final judgment of default was entered against the Higgins because they failed to

respond in the deficiency proceeding. A year later, the Higgins sought to void the

default judgment, claiming the trial court lacked jurisdiction because the

foreclosure court had reserved jurisdiction to consider a request for a deficiency

judgment in that proceeding.

The trial court properly denied the Higgins’ request because the Legislature

had just recently enacted a clearly worded statute that established a “right to sue”

for a deficiency judgment “unless the court in the foreclosure action has granted or

denied a claim for a deficiency judgment.” § 702.06, Fla. Stat.; Ch. 2013-137,

Laws of Fla. Because the “court in the foreclosure action” had neither “granted”

nor “denied” the claim for a deficiency judgment in that proceeding, Dyck-O’Neal

had a clear statutory “right to sue” separately for a deficiency judgment. The

statute contemplates this precise situation, i.e., where a foreclosure court has been

presented, but not acted upon, a request for a deficiency judgment; in such a case,

the complainant has the “right to sue” to recover the deficiency. The statute doesn’t

17

say the complainant must sue in the same court as the foreclosure action; instead,

the plain words of the statute envision the possibility of two separate proceedings,

perhaps in two different courts.

The plain, unambiguous language of the statute has not escaped judicial

notice. Every Florida court addressing the issue of whether section 702.06

jurisdictionally bars a separate suit for a deficiency judgment has said

unequivocally that it does not. Instead, the only statutory jurisdictional bar is if the

“court in the foreclosure action has granted or denied a claim for a deficiency

judgment.” § 702.06, Fla. Stat. The Third District, in two cases with facts like this

one, have viewed the 2013 statutory language as “clear,” “plain,” and

“unambiguous.” Dyck-O’Neal, Inc. v. Weinberg, 41 Fla. L. Weekly D329 (Fla. 3d

DCA Feb. 3, 2016) (reversing an order dismissing for lack of jurisdiction based on

“unambiguous” and “plain language of the statute”); Garcia v. Dyck-O’Neal, Inc.,

178 So. 3d 433, 436 (Fla. 3d DCA 2015) (“When the clear and unambiguous

language of a statute commands one result, as here, . . . we must apply the statute

so as to give effect to legislative intent.”); see also Cheng v. Dyck-O’Neal, Inc., 41

Fla. L. Weekly D1076b (Fla. 4th DCA May 6, 2016) (agreeing with Third District

decisions “that section 702.06, Florida Statutes, is unambiguous”). As summarized

by the Third District in Garcia:

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According to the statute, unless the foreclosure court has granted or

has declined to grant a deficiency judgment, a plaintiff may pursue

deficiency relief in a separate action. In the instant case, the

foreclosure court did not grant or decline to grant the deficiency

judgment claim; therefore, the trial court below had jurisdiction to

consider Dyck–O'Neal's deficiency claim.

178 So. 3d at 436. Likewise, the Fourth District in Cheng concluded that the

“foreclosure judgment’s reservation of jurisdiction does not preclude a separate

suit to recover the deficiency where the foreclosure court has not granted or denied

a claim for a deficiency judgment.” Cheng, 41 Fla. L. Weekly D1076b. The clarity

of the 2013 statutory language decides this case; affirmance is required.

Two additional points are warranted. First, the lengthy discussion of

erstwhile caselaw in Reid v. Compass Bank, 164 So. 3d 49, 57 (Fla. 1st DCA

2015), is dicta, immaterial, and misplaced. Because it is dicta, it has only

persuasive value; but it has failed to persuade both the Third and Fourth Districts.

It is immaterial because the 2013 statutory language at issue trumps whatever

perceived inconsistency the panel in Reid may have imagined with prior

precedents. See Garcia, 178 So. 3d at 436 (“Statutory Authority Eclipses Dicta”).

In addition, the caselaw recited cannot be said to be inconsistent with the 2013

revision. Rather, though the older caselaw is not entirely consistent, it appears that

a complainant had the right to pursue an action at law for a deficiency judgment if

a deficiency is not sought or entered in the foreclosure proceeding. See Reid v.

Miami Studio Props., 190 So. 505, 506 (Fla. 1939); see also First Fed. Sav. & Loan

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Ass’n of Broward Cnty. v. Consol. Dev. Corp., 195 So. 2d 856, 859 (Fla. 1967)

(“There has been no disturbance of the rule that if a deficiency is sought and the

relief is overlooked or not considered, the one entitled to the recovery of the

balance of the debt left over after the proceeds of the mortgage sale have been

credited may sue for the remainder at law.”).

Second, whatever disagreement may exist about the efficiency of allowing a

separate proceeding to pursue a deficiency judgment is best left to the Legislature,

which has recently addressed and settled the matter. As the Third District said: “In

our view, the Legislature drafted a clear statute that resolved the courts’ struggle

with the issue in this case.” Garcia, 178 So. 3d at 436. If the statutory “right to sue”

in section 702.06 results in significant problems—which appears unlikely given the

right in some form has existed for over 75 years—the legislative branch may wish

to address them.

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