TOBY W. MERRILL, APPELLANT,
v.
RUSSELL K. NUZUM, III, APPELLEE
DANIEL S. PEARSON, Judge. We reverse the final judgment entered in favor of the appellee on his petition for the determination of a deficiency following a mortgage foreclosure sale. We hold that the amount of the deficiency was an unliquidated amount and that, therefore, despite the appellant’s default in the foreclosure action, she was entitled to notice of the trial to determine the deficiency; that the notice given to the appellant of the trial to determine the deficiency was inadequate; and that the trial court abused its discretion when it refused to continue the trial to enable the appellant to prepare. See Heritage Casket & Vault Ind. v. Sunshine Bank, 428 So. 2d 341 (Fla. 1st DCA 1983). We reject the appellee’s contention that his resale of the property subsequent to his purchase of it at the foreclosure sale preclusively fixed the fair market value of the property at the time of the foreclosure sale and thus rendered the amount of the deficiency liquidated. While the sale of the property after the foreclosure sale is evidence of the value of the property at the time of the foreclosure sale, see Matson v. Gulfstream Bank, N.A. (Fla. 4th DCA 1985) (Case Nos. 83-1690 and 83-1999, opinion filed May 8, 1985), it is clearly not the only evidence of value which may be received. The appellant was entitled to challenge the appellee’s contention that the subsequent sale represented fair market value at the time of the foreclosure by showing, inter alia, that the subsequent sale was not an arm’s length transaction or that, even if it were, events between the time of the foreclosure sale and the subsequent sale substantially altered the value of the property. Because she was deprived of that opportunity, the matter is reversed and remanded for a new trial to determine the deficiency.1 Reversed and remanded. . Our decision makes it unnecessary to decide appellant’s other claim that the deficiency judgment improperly includes the cost of certain items. Because appellant has never been heard on this issue in the trial court, we assume that appellant’s participation will aid the trial court in resolving this dispute correctly.
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Ellis E. Neder, Jr. v. Greyhound Fin. Corp., 592 So. 2d 1218 (Fla. 1st DCA 1992)…was essentially a proceeding to recover indebtedness remaining after a foreclosure sale. The amount of the successful sale bid does not render the amount of the deficiency liquidated, since other evidence of value may be received. Merrill v. Nuzum, 471 So. 2d 128 (Fla. 3d DCA 1985). We also note that recovery against Neder was based upon alleged fraud and that nowhere in the complaint or pleadings was the amount of damages set out. If on remand the trial court determines that the default judgment should stan…
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Cmty. Bank OF Homestead v. Valois, 570 So. 2d 300 (Fla. 3d DCA 1990)…ting). The majority opinion conflicts with this court’s opinions in S/D Enterprises, Inc. v. Chase Manhattan Bank, 374 So. 2d 1121 (Fla. 3d DCA 1979), Fara Mfg. Co. v. First Fed. S & L Ass’n, 366 So. 2d 164 (Fla. 3d DCA 1979), and Merrill v. Nuzum, 471 So. 2d 128 (Fla. 3d DCA 1985), the first district’s recent opinion in Thunderbird Ltd. v. Great Am. Ins. Co., 566 So. 2d 1296 (Fla. 1st DCA 1990), the fifth district’s opinion in Flagship State Bank v. Drew Equip. Co., 392 So. 2d 609 (Fla. 5th DCA 1981), and t…1 / 2
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First Union Nat'l Bank OF Fla. v. Goodwin Beach P'ship, 644 So. 2d 1361 (Fla. 5th DCA 1994)…2d 300 (Fla. 3d DCA 1990). The selling price of the property to D.D.I., Inc. shortly after the foreclosure sale is evidence of the property’s fair market value. However, the trial court did not have to accept it as determinative. Merrill v. Nuzum, 471 So. 2d 128 (Fla. 3d DCA 1985). Fair market value is defined for such purpose as “the amount that would be paid for the property to a willing seller, not compelled to sell, by a willing buyer, considering all reasonable uses to which the property is adapted.” S…
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- Heritage Casket & Vault IND., Inc. v. Sunshine Bank, 428 So. 2d 341 (Fla. 1st DCA 1983)