The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
EDMUND ACCARDI,
Appellant,
v.
REGIONS BANK, et al.,
Appellee.
No. 4D20-0662
[December 9, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrea Gundersen, Judge; L.T. Case No. CACE 11-
015830(11).
Mark F. Booth of Rogers, Morris & Ziegler LLP, Ft. Lauderdale, for
appellant.
Starlett M. Massey and Jonathan B. Lewis of Massey Law Group, P.A.,
St. Petersburg, for appellee.
GROSS, J.
Does the one-year statute of limitations specified in section 95.11(5)(h),
Florida Statutes (2018), apply to a motion for a deficiency judgment
brought within an existing mortgage foreclosure action? We hold that
such a motion for deficiency judgment is an “action to enforce a claim of a
deficiency” to which the one-year statute of limitations applies.
Facts
In August 2015, the circuit court entered a final judgment of foreclosure
in favor of Regions Bank against Edmund Accardi’s interest in real
property, specifying the outstanding indebtedness to be $2,632,518.93.
The final judgment retained jurisdiction to enter a deficiency judgment, as
well as other matters. Accardi appealed the final judgment to this court.
While the appeal was pending, the clerk of the circuit court issued a
certificate of sale on December 3, 2015, showing that the bank acquired
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the property via public sale with a bid of $300. In April 2016, the clerk of
court issued a certificate of title naming the bank as the title holder.
We affirmed the final judgment in Accardi v. Regions Bank, et al., 201
So. 3d 743 (Fla. 4th DCA 2016).
The bank sold the subject property on February 21, 2017. In
September 2018, the circuit court granted the bank’s motion to tax
attorney’s fees.
On March 12, 2019, the bank moved for the entry of a deficiency
judgment, which included both the sale deficiency and the attorney’s fees.
In September 2019, the trial court conducted a hearing on the bank’s
motion for deficiency. The court rejected Accardi’s contention that the
bank’s motion was barred by section 95.11(5)(h), Florida Statutes (2018),
which governs the statute of limitations for an “action to enforce a claim
of a deficiency.”
The trial court held a final hearing on the motion for deficiency
judgment in February 2020. The court reaffirmed its prior ruling that the
section 95.11(5)(h) statute of limitations did not bar the bank’s claim.
The court determined that the fair market value of the subject property
on the date of the foreclosure sale was $2,100,000.00. The court deducted
the fair market value from the total indebtedness owed to the bank, added
$25,800 in attorney’s fees, and entered a final judgment in favor of the
bank in the amount of $558,318.93.
Analysis
The bank’s motion for deficiency was barred by a Chapter 95 statute
of limitations because that motion constituted an “action to enforce
a claim of a deficiency” within the meaning of section 95.11(5)(h),
Florida Statutes.
Section 702.06, Florida Statutes (2020), allows a mortgagee to obtain a
deficiency decree within a mortgage foreclosure action or through a
separate lawsuit at common law. See § 702.06, Fla. Stat. (2020) (observing
that a foreclosing mortgagee “shall also have the right to sue at common
law to recover such deficiency, unless the court in the foreclosure action
has granted or denied a claim for a deficiency judgment”); Royal Palm Corp.
Ctr. Ass’n v. PNC Bank, NA, 89 So. 3d 923, 931 (Fla. 4th DCA 2012) (noting
that “[s]ection 702.06 binds a plaintiff to a deficiency decree once the
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plaintiff sets the deficiency process in motion,” but that the statute
expressly provides the complainant the right to sue at common law to
recover such deficiency, except in one limited circumstance).
Here, the bank obtained a deficiency decree by way of a motion within
the existing mortgage foreclosure action. This case involves the
application of the statute of limitations contained at section 95.11(5)(h),
Florida Statutes (2018), which provides:
Actions other than for recovery of real property shall be
commenced as follows:
...
(5) Within one year.—
...
(h) An action to enforce a claim of a deficiency related to a note
secured by a mortgage against a residential property that is a
one-family to four-family dwelling unit. The limitations period
shall commence on the day after the certificate is issued by
the clerk of court or the day after the mortgagee accepts a deed
in lieu of foreclosure.
Because subsection (5)(h) applies to “an action to enforce a claim of a
deficiency,” it is essential to focus on how Chapter 95 defines an “action.”
Section 95.011, Florida Statutes (2018), provides, in pertinent part:
A civil action or proceeding, called “action” in this
chapter . . . shall be barred unless begun within the time
prescribed in this chapter or, if a different time is prescribed
elsewhere in these statutes, within the time prescribed
elsewhere.
(emphasis supplied).
If a motion for deficiency within an existing mortgage foreclosure
lawsuit amounts to a “civil action or proceeding” within the meaning of
section 95.011, then the one-year statute of limitations in section
95.11(5)(h) would apply in this case.
“When the statute is clear and unambiguous, courts will not look
behind the statute’s plain language for legislative intent or resort to rules
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of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of
Health, 898 So. 2d 61, 64 (Fla. 2005). “In such instance, the statute’s
plain and ordinary meaning must control, unless this leads to an
unreasonable result or a result clearly contrary to legislative intent.” Id.
In Salinas v. Ramsey, 234 So. 3d 569 (Fla. 2018), the Florida Supreme
Court closely examined the meaning of the phrase “civil action or
proceeding” in section 95.011. There, the court confronted a question
posed by the Eleventh Circuit Court of Appeals concerning the deadline
for completing post-judgment discovery in aid of collecting on a federal
money judgment. Id. at 570–71. The court held that post-judgment
discovery was permitted for a period of 20 years after a judgment was
entered. Id. at 570.
To reach that holding, the court rejected the notion that post-judgment
discovery amounted to an “action on a judgment” under section
95.11(2)(a). Id. at 571–72; accord Burshan v. Nat’l Union Fire Ins. Co., 805
So. 2d 835 (Fla. 4th DCA 2001).
Next, the court addressed the claim, similar to the one in this case, that
the post-judgment discovery qualified as a “civil action or proceeding”
under section 95.011, enacted in 1974. Salinas, 234 So. 3d at 572–73.
After quoting several definitions of “civil action” and “action,” Salinas
concluded:
These definitions and explanations establish that a “civil
action” is a process that is intended to result in a judgment or
decree and, after the merging of “action” and “suit,” may
include execution as part of the original “action.” In fact, this
Court’s precedent confirms that execution has long been
considered a continuation of the action in which the judgment
was obtained and is “a remedy, not an action.”
Id. at 573.
As the Florida Supreme Court observed, this definition of a “civil action”
is consistent with a long line of authority that post-judgment collection
mechanisms are extensions of the original cause of action. See Burshan,
805 So. 2d at 843 (collecting cases).
Salinas then turned to the definition of “proceeding” in section 95.011,
recognizing that it was broader than the definition of a “civil action”:
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The definitions for “proceeding,” the other expression of
“action” under section 95.011, are broader:
1. The regular and orderly progression of a
lawsuit, including all acts and events between the
time of commencement and the entry of
judgment. 2. Any procedural means for seeking
redress from a tribunal or agency. 3. An act or
step that is part of a larger action. 4. The
business conducted by a court or other official
body; a hearing. 5. Bankruptcy. A particular
dispute or matter arising within a pending case—
as opposed to the case as a whole.
Proceeding, Black’s Law Dictionary (10th ed. 2014). An
explanatory quotation states that “proceeding” is a “more
comprehensive” word than “action” and may cover a number
of concepts, including but not limited to “all ancillary or
provisional steps, such as ... garnishment,” “the execution,”
“proceedings supplementary to execution,” or “the
enforcement of the judgment.” Id. (quoting Edwin E.
Bryant, The Law of Pleading Under the Codes of Civil
Procedure 3–4 (2d ed. 1899) ). In Raymond James Financial
Services, Inc. v. Phillips, 126 So. 3d 186 (Fla. 2013), when
determining whether arbitration is an “action” under section
95.11, this Court found that the most relevant definition of
“proceeding” is “[a]ny procedural means for seeking redress
from a tribunal or agency.” Id. at 190 (quoting Black’s Law
Dictionary 1324 (9th ed. 2009) ). “[R]edress” is “[r]elief” or a
“remedy,” such as money damages. Redress, Black’s Law
Dictionary (10th ed. 2014).
234 So. 3d at 573.
The Florida Supreme Court faced a significant interpretive problem in
Salinas. If a post-judgment collection mechanism amounted to a section
95.011 “proceeding,” then the statute of limitations for the underlying
claim would apply. For example, in a legal action founded on a written
contract that went to judgment, a post-judgment garnishment would have
to be completed within the five-year statute of limitations period. See §
95.11(2)(b), Fla. Stat. (2018).
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To avoid the imposition of a requirement that lawsuits would have to
begin and end within the limitations period, Salinas declined to apply a
broad definition of “proceeding” to discovery in aid of execution:
While “proceeding” can include any step in the process of
obtaining redress, even a single hearing, this understanding
of “proceeding” does not fit the context in which the word
“proceeding” is used in section 95.011. Section 95.011
explains that a civil action or proceeding must be “begun
within the time prescribed” in chapter 95. If “proceeding” in
this context meant any step of a lawsuit, as the judgment
debtor seems to suggest, then the statute would require
any lawsuit to both begin and end within the limitations
period, as the final hearing or trial would be barred if it
occurred after the end of the limitations period, even if
the action began many years earlier. The Legislature,
however, did not say that any civil action must “begin and
end” within the limitations period or that any discrete
proceeding within a lawsuit must occur within the limitations
period. The Legislature chose the word “begun,” signifying
that its concern was with the initiation of a new and
independent procedural means for obtaining a judgment or
seeking redress.
234 So. 3d at 573 (emphasis supplied).
Salinas reaffirms the general rule that post-judgment collection efforts
such as discovery, execution, garnishment, or proceedings supplementary
are neither “civil actions” nor “proceedings” within the meaning of section
95.011. Rather, such collection vehicles are efforts to “effectuate” a
judgment lien already in existence, so the law views them as an extension
of the main case. Burshan, 805 So. 2d at 842–43 (quoting B. A. Lott, Inc.
v. Padgett, 14 So. 2d 667, 669 (Fla. 1943)).
This case departs from the general rule because the Legislature has
spoken through the enactment of section 95.11(5)(h). That statute clearly
establishes a limitation period within an existing foreclosure action—one
year from “the day after the certificate is issued by the clerk of court or the
day after the mortgagee accepts a deed in lieu of foreclosure.” 1 The reason
1 The statute’s reference to “the certificate” is less than precise. Although this
case does not turn on the identity of the certificate, we suspect it refers to the
certificate of title, which would parallel the legal effect of a “deed in lieu of
foreclosure.”
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that the supreme court did not apply the broad definition of “proceeding”
in Salinas—to avoid the requirement that a lawsuit, including post-
judgment collection proceedings, begin and end within the limitations
period of the main claim—is inapplicable here because the deficiency
“proceeding” has its own, specified limitation period independent of the
five-year limitation period in an action to foreclose a mortgage. See §
95.11(2)(c), Fla. Stat. (2018).
Also, the addition of section 95.11(5)(h) was part of a statute making a
comprehensive legislative overhaul of foreclosures. See Laws of Florida
2013, c. 2013–137, § 1. Supporting the plain reading of the statute is the
fact that limiting the new statute of limitations to only separate civil
actions for deficiency makes little sense because such actions are few; the
vast majority of deficiencies occur within an existing foreclosure. Reading
the amendments as a whole, it is apparent that the Legislature did not
intend to exclude motions for foreclosure from the impact of the statutory
change to foreclosure procedure. The amendment to section 702.06
recognizes that motions for deficiency are the typical mechanism for
recovery of a deficiency. That amendment stated, “The complainant shall
also have the right to sue at common law to recover such deficiency,
unless the court in the foreclosure action has granted or denied a
claim for a deficiency judgment.” Laws of Florida 2013, c. 2013–137, §
5. (Additions to statute emphasized). To decide this case differently would
effectively gut the application of the statute that applied a one-year
limitation to all foreclosure deficiency “civil actions or proceedings.”
For these reasons, the bank’s motion for deficiency fell within the broad
definition of a section 95.011 “proceeding” that our supreme court
identified in Salinas, making it an “action to enforce a claim of a deficiency”
under section 95.11(5)(h), so that the one-year statute of limitations
applies.
The clerk of the circuit court issued a certificate of title in April 2016.
The bank did not move for the entry of a deficiency judgment until 2019,
well beyond the one-year statute of limitations.
We distinguish L.A.D. Property Ventures, Inc. v. First Bank, 19 So. 3d
1126 (Fla. 2d DCA 2009), a case cited by the bank. That case involved
primarily a question of personal jurisdiction over judgment debtors.
Considering that issue, the court stated that a motion for deficiency “was
a continuance of the foreclosure proceedings.” Id. at 1128. L.A.D. Property
Ventures was decided in 2009, prior to the 2013 enactment of section
95.11(5)(h), so the court did not have occasion to consider the statute’s
application to a motion for deficiency.
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For these reasons, we reverse the final judgment awarding a deficiency
and remand to the circuit court to enter an amended final judgment for
attorney’s fees and taxable costs only.
Reversed and remanded.
CIKLIN, J., and BELL, CAROLYN, Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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