VERNIE RAY BARNES, APPELLANT,
v.
ESCAMBIA COUNTY EMPLOYEES CREDIT UNION, A FLORIDA CORPORATION, APPELLEE
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Vernie Ray Barnes appealed a deficiency judgment entered against him by Escambia County Employees Credit Union following foreclosure on a mortgage. The court affirmed the deficiency judgment, holding that the petition for deficiency was timely filed within the five-year statute of limitations under Florida law, and that Barnes failed to properly invoke the one-year rule for dismissal due to inactivity.
The court held that the applicable statute of limitations for a deficiency judgment is the five-year period under Florida Statute § 95.11, measured from the date of default on the underlying debt, not a one-year period from the foreclosure judgment. The petition filed on September 7, 1982 was timely. The trial court properly denied the motion for summary judgment because Barnes failed to move for dismissal under the one-year rule for inactivity (Rule 1.420(e)), which requires affirmative action by the moving party.
[1] A deficiency judgment is barred when the action on the debt secured by the mortgage is barred.
[2] The statute of limitations for commencing an action on a note and mortgage is five years.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a deficiency judgment or decree is barred when an action on the debt secured by the mortgage is barred.”
Establishes the general rule that deficiency judgments are governed by the statute of limitations applicable to the underlying debt obligation.
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Join FLexlaw to unlock all legal intelligenceBarnes executed a promissory note and mortgage to the credit union on May 5, 1977. He defaulted on March 31, 1978, and foreclosure proceedings were in…
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WIGGINTON, Judge.
This appeal is from an order denying a motion for summary judgment and awarding to appellee a deficiency judgment. The issue posed for our consideration is whether an action brought by a petition for assessment of a deficiency is barred if not brought within one year from the date of the entry of the final judgment of foreclosure. We affirm.
On May 5, 1977, appellant executed and delivered a promissory note and mortgage securing payment of the note to appellee. Appellant subsequently defaulted under the terms of the note on March 31, 1978, and a complaint for foreclosure was filed on December 26, 1979. Among other things, the complaint prayed that a deficiency judgment be entered for the sum remaining unpaid against appellant. The final judgment in foreclosure was entered on September 5, 1980, and specifically reserved jurisdiction to enter further orders including a deficiency judgment. Following foreclosure sale, a certificate of title to the property was entered on October 15, 1980.
A Petition for Assessment of Deficiency Judgment was filed on September 7, 1982. Although a hearing on the petition was scheduled for November 1982, it was can-celled when former counsel for appellant was invested as circuit judge. The case sat dormant until February 8, 1984, when appellant’s present attorney was substituted as counsel of record. On December 20, 1984, appellant filed his response to the petition, said response containing the affirmative defense that the statute of limitations for deficiency judgment had run in this cause. A motion for summary judgment based on that affirmative defense was filed by appellant, and denied by the court on February 21, 1985. A final deficiency judgment was entered on April 26, 1985, prompting this appeal.
Appellant bases his contention on the holding in Colmes v. Hoco, Inc. of Dade County, 152 So. 2d 524 (Fla. 3d DCA 1963), wherein the court stated:
As to the jurisdiction of the chancellor to entertain the motion for deficiency, it is apparent that having reserved jurisdiction to consider such an issue in the final decree, he certainly had the jurisdiction if there was a timely application made for a deficiency. It appears from the authorities that a timely application for a deficiency would be either the period within the limitation statute for instituting a cause of action under the note and mortgage [see: 22 Fla.Jur., § 417], or the one-year period within which the cause could have been abated pursuant to § 45.19 Fla.Stat, F.S.A., whichever period occurred first.
At 525. Section 45.19 was repealed in 1967 by chapter 67-254 and was replaced by Florida Rule of Civil Procedure 1.420(e) which deals with the failure to prosecute.
Appellee counters that the applicable statute of limitations, section 95.11, Florida Statutes, provides a five-year period for commencing this action, the default on the note and mortgage having been on March 31, 1978, and the deficiency action being commenced following the foreclosure on September 7, 1982, is clearly within the statutory period.
We agree with appellee and affirm. The general rule is that “a deficiency judg ment or decree is barred when an action on the debt secured by the mortgage is barred.” 37 Fla.Jur.2d Mortgages, et Cet-era, § 405 (1982). As noted by appellee, the applicable statute of limitations is section 95.11, providing a period of five years. Since appellee filed its petition within that period, this cause could be dismissed only under the present rule 1.420(e) if good cause is not shown for inactivity in the case for a period of one year. See also Steketee v. Ballance Homes, Inc., 376 So. 2d 873 (Fla. 2d DCA 1979), cert. denied, 385 So. 2d 754 (Fla.1980). However, rule 1.420(e) “is not self-executing. The moving party must seek dismissal prior to resumption of affirmative action toward prosecution of the case.” Equity Capital Company v. 601 West 26 Corp., 223 So. 2d 762 (Fla. 3d DCA 1969).
Since appellant failed to move for dismissal under the rule, the trial court had no reason to dismiss the cause or grant appellant’s motion for summary judgment. The final deficiency judgment and the order denying appellant’s motion for summary judgment are affirmed.
BOOTH, C.J., and SHIVERS, J., concur.
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Frohman v. Bar-Or, 660 So. 2d 633 (Fla. 1995)…that there was no merit to the argument that it would nullify an otherwise valid judgment in mortgage foreclosure proceedings. Id. at 684-85. In reaching this conclusion, the district court relied on Barnes v. Escambia County Employees Credit Union, 488 So. 2d 879 (Fla. 1st DCA 1986), and Withers v. Flagship Peoples Bank, 473 So. 2d 789 (Fla. 1st DCA 1985), [*636] and certified conflict with Ravel and Riesgo. The district court accordingly affirmed the trial court’s order dismissing Financial Security’s motio…1 / 2
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Joleen Chrestensen v. Eurogest, Inc., 906 So. 2d 343 (Fla. 4th DCA 2005)…999, and the foreclosure sale took place on October 19, 1999. Since the deficiency action was filed on August 26, 2003, it was well within the statutory period of five years.4 Eurogest counters that Barnes v. Escambia County Employees Credit Union, 488 So. 2d 879 (Fla. 1st DCA 1986), establishes that the statute of limitations in a deficiency action begins to run on the date of the default of the mortgage note. However, any language to that effect in Barnes [*346] is merely dicta, as the question addressed b…1 / 2
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United States v. Heard Sneed and Willie Inez Sneed, 620 So. 2d 1093 (Fla. 1st DCA 1993)…d failed to establish its lien and indebtedness by not filing a crossclaim or counterclaim and was barred by the statute of limitations to establish any indebtedness on the part of the Sneeds, citing Barnes v. Escambia County Employees Credit Union, 488 So. 2d 879 (Fla. 1st DCA 1986). The questions presented by the United States are (1) whether the United States had a superior right to the surplus proceeds; (2) whether Barnes v. Escambia County Employees Credit Union, 488 So. 2d 879 (Fla. 1st DCA 1986), is a…1 / 3
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Colmes v. Hoco, 152 So. 2d 524 (Fla. 3d DCA 1963)
- Gieger-Jones Constr. Co., Inc. v. Bank OF W. Orange, 223 So. 2d 762 (Fla. 4th DCA 1969)
- Equity Cap. Co. v. 601 W. 26 Corp., 223 So. 2d 762 (Fla. 3d DCA 1969)
- Steketee v. Ballance Homes, Inc., 376 So. 2d 873 (Fla. 2d DCA 1979)