WAYNE E. DENNIS, APPELLANT,
v.
JEFFREY G. PEARL, APPELLEE
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The court held that the trial court correctly entered an order of indemnification, finding the assuming grantee primarily liable and the original mortgagor secondarily liable.
[1] A party who assumes a mortgage becomes the primary obligor, rendering the original mortgagor secondarily liable as between themselves.
[2] A trial court may enter a deficiency decree following a foreclosure sale when the sale proceeds are insufficient to satisfy the mortgage lien.
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Join FLexlaw to unlock all legal intelligenceFollowing a foreclosure sale that resulted in a deficiency due to waste, the plaintiff sought a deficiency decree. The trial court found both the orig…
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PER CURIAM.
Subsequent to the entry of a final judgment of foreclosure, there was a sale of the real property upon which the mortgage lien attached. Because of "waste,” the property at judicial sale failed to sell at a price sufficient to make the plaintiff whole. The plaintiff then sought a deficiency decree. The court took extensive testimony and determined that there was a deficiency of $50,000 and that both parties to this appeal were jointly and severally liable to the plaintiff in foreclosure for the deficiency. Their liability was based upon that certain mortgage given by the appellee, Jeffrey G. Pearl, to the plaintiff when he purchased the property from him and by the assumption of liability for said mortgage by the appellant, Wayne E. Dennis, when he purchased the property from Pearl. Thereafter, the trial court, determining the rights as between Pearl and Dennis, held that Pearl was entitled to indemnification from Dennis and could recover from Dennis the full amount of any sums Pearl paid in satisfaction of the deficiency judgment awarded the original plaintiff. This appeal is taken from the judgment of indemnification. We affirm.
Appellant urges procedural error in concluding the matter at a deficiency hearing. Even if such occurred, it would at most be harmless under the record in this case. Liberty Mutual Insurance Company v. United Services Automobile Association, 212 So. 2d 813 (Fla. 3d DCA 1968); In Re Johnson, 157 Fla. 26, 24 So. 2d 711 (1946); Section 59.041, Florida Statutes (1985).
While there can be no question that Pearl and Dennis are jointly and severally liable to the plaintiff in foreclosure, a different situation arises as between themselves. Dennis by assuming the plaintiffs mortgage when he purchased the property from Pearl was, as between Messrs Pearl and Dennis, the primary obligor and Pearl is only secondarily liable. See Ackley v. Noggle, 97 Fla. 640, 121 So. 882 (1929); Brownson v. Hannah, 93 Fla. 223, 111 So. 731 (1927); 37 Fla.Jur.2d, Mortgages and Deeds of Trust, Sec. 440. Therefore, the trial court correctly entered the order appealed.
Affirmed.
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Citator
Cited By
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Hogg v. Kenland Bend S. Condo., Inc., 504 So. 2d 532 (Fla. 3d DCA 1987)…PER CURIAM. Affirmed. § 59.041, Fla.Stat. (1983); see In re Johnson, 157 Fla. 25, 24 So. 2d 711 (1946); Dennis v. Pearl, 500 So. 2d 344 (Fla. 3d DCA 1987); Liberty Mut. Ins. Co. v. United Servs. Auto. Ass'n, 212 So. 2d 813 (Fla. 3d DCA 1968), cert. denied, 222 So. 2d 747 (Fla.1969).…
Authorities Cited
- Brownson v. Hannah, 93 Fla. 223 (Fla. 1927)
- Ackley v. Noggle, 97 Fla. 640 (Fla. 1929)
- In re the Adoption of Mary Ester Johnson, 157 Fla. 25 (Fla. 1946)
- Liberty Mut. Ins. Co. v. United Servs. Auto. Ass'n, 212 So. 2d 813 (Fla. 3d DCA 1968)