NORWEST BANK OWATONNA, N.A., APPELLANT,
v.
JAMES DELMAR MILLARD, APPELLEE
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The court held that the trial court abused its discretion by not awarding the full deficiency amount sought, as no equitable principles or facts justified the reduced award.
[1] A trial court's discretion in granting a deficiency decree is a sound judicial discretion, subject to review on appeal and requiring support by established equitable prin…
[2] When a deficiency decree is entered for less than the amount due, the judgment must be supported by established equitable principles and the record must disclose sufficie…
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Join FLexlaw to unlock all legal intelligenceNorwest obtained a foreclosure judgment and sought a deficiency decree, providing uncontradicted evidence of the property's fair market value. The tri…
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DOWNEY, Judge.
Appellant, Norwest, was awarded a final judgment of foreclosure in the amount of $233,943.62 inclusive of principal, interest, attorney’s fees and costs. Upon motion for a deficiency decree, Norwest adduced un-contradicted evidence that the fair market value of the property was $64,000 and prayed for a deficiency of $161,931.63. However, the trial court granted a deficiency of only $47,210.43 and Norwest appealed.
The rule is well established in Florida and set forth in Carlson v. Becker, 45 So. 2d 116, 116 (Fla.1950), that:
While ordinarily the granting of a deficiency decree is discretionary with the court, this is not an absolute and unbridled discretion, but a “sound judicial discretion,” which must be supported by established equitable principles as applied to the facts of the case, and the exercise of which is subject to review on appeal.
A corollary of the rule is announced in Trustees, Etc. v. Indico Corp., 401 So. 2d 904, 906-907 (Fla. 1st DCA 1981):
Suffice it to say that when a deficiency decree is entered for less than the amount due and owing the judgment must be supported by established equitable principles and the record must disclose sufficient facts and circumstances to justify the judgment.
The most recent exposition of the rule appears in CSI Services, Ltd. v. Hawkins Concrete Construction Co., 516 So. 2d 337, 338 (Fla. 1st DCA 1987), wherein the court said:
The burden to prove that the fair market value of the collateral was less than the debt will be upon the secured party. If the secured party meets this burden, he will be allowed to recover a deficiency judgment in an amount equal to the total debt minus the fair market value of the collateral as ultimately determined.
In the present case the trial judge did not state any legal or equitable principle justifying his refusal to follow the general rule. Thus, the award is an abuse of discretion mandating a reversal of the order and a remand for entry of a deficiency decree for the difference between the fair market value of the property and the amount owed to Norwest.
WALDEN and GUNTHER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Thunderbird, Ltd. v. Great Am. Ins. Co., 566 So. 2d 1296 (Fla. 1st DCA 1990)…ction at law on the guaranties, Great American had the burden of proving that the value of the assets it received through foreclosure was less than the total indebtedness which appellants partially guaranteed. Norwest Bank Owatonna, N.A. v. Millard, 522 So. 2d 546 (Fla. 4th DCA 1988); CSI Services, Ltd. v. Hawkins Concrete Construction Co., 516 So. 2d 337 (Fla. 1st DCA 1987). While the foregoing is a correct statement of the law, we disagree with appellants that Great American’s action in placing before the…
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Dane D. Morgan v. Kelly, 642 So. 2d 1117 (Fla. 3d DCA 1994)…00. However, the correct formula to calculate a deficiency judgment is the total debt, as secured by the final judgment of foreclosure, minus the fair market value of the property, as determined by the court. Norwest Bank Owatonna, N.A. v. Millard, 522 So. 2d 546 (Fla. 4th DCA 1988) (citing CSI Servs., Ltd. v. Hawkins Concrete Constr. Co., 516 So. 2d 337, 338 (Fla. 1st DCA 1987)). See R.K. Cooper Constr. Co. v. Fulton, 216 So. 2d 11 (Fla.1968); Liberty Business Credit Corp. v. Schaffer/Dunadry, 589 So. 2d 45…
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Liberty Bus. Credit Corp. v. Schaffer/Dunadry, 589 So. 2d 451 (Fla. 2d DCA 1991)…en to prove that the fair market value of assets received is less than the total indebtedness is upon the secured party. Thunderbird, Ltd. v. Great American Ins. Co., 566 So. 2d 1296, 1298 (Fla. 1st DCA 1990); Norwest Bank Owatonna, N.A. v. Millard, 522 So. 2d 546, 547 (Fla. 4th DCA 1988). The amount bid at a judicial sale “may be considered by the court as one of the factors in determining a deficiency under the usual equitable principles.” § 45.031(8), Fla.Stat. (1989). In foreclosure cases, there is a lega…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carlson v. Becker, 45 So.2d 116 (Fla. 1950)
- The Trs. OF Cent. States Se. & Sw. Areas v. Indico Corp., 401 So. 2d 904 (Fla. 1st DCA 1981)
- CSI Servs., Ltd. v. Hawkins Concrete Constr. Co., 516 So. 2d 337 (Fla. 1st DCA 1987)