MARINER/TAMPA, LTD., MARINER MANAGEMENT CORPORATION AND ARCHIE BENNETT, JR., APPELLANTS,
v.
WELLS FARGO REALTY ADVISORS FUNDING, INC., AND MONTGOMERY ESTATES, INC., APPELLEES
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The court held that the defendant should receive credit for the full amount of accumulated cash and receivables, not just half, when calculating a deficiency judgment.
A hotel accumulated over $800,000 in cash and receivables while in receivership during foreclosure. These assets were awarded to the buyer, a subsidia…
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PER CURIAM.
This appeal arises from a final judgment of foreclosure and a supplemental deficiency judgment pertaining to a piece of com mercial property in downtown Tampa. We affirm in part and reverse in part.
The parties, by appeal and cross-appeal, have raised a number of issues. We find merit in only one and affirm the trial court otherwise.
In the supplemental proceedings seeking a deficiency judgment it was established that the hotel in question had accumulated cash and receivables in excess of $800,000 while in receivership during foreclosure litigation. These assets were awarded to the buyer at the foreclosure sale together with the property. The buyer was a wholly owned subsidiary of the plaintiff bank and received an assignment of the final judgment prior to the sale.
In the deficiency proceedings the lower court gave credit to the defendant for one-half of the accumulated cash and receivables and entered a deficiency judgment in the amount of $72,182.71. We find no competent and substantial evidence to justify giving credit for less than the entire amount of the cash and receivables.
The appellants concede that although the award of full credit could result in a surplus (as opposed to a deficiency), the sole relief they seek is the vacating of the deficiency judgment. We therefore direct the lower court to vacate the deficiency judgment and enter a judgment in favor of the appellants Mariner/Tampa, Ltd. and Mariner Management Corporation denying a deficiency. This appeal remains pending as to the appellant/cross-appellee Archie Bennett, Jr., by reason of a bankruptcy court stay order. CAMPBELL, C.J., and LEHAN and PATTERSON, JJ., concur.
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Rhoden v. Fed. Deposit Ins. Corp., 619 So. 2d 480 (Fla. 2d DCA 1993)…of the profits. We agree. In a deficiency proceeding, the mortgagor is entitled to full credit for the accumulated cash and receivables that accrued during a period of receivership. Mariner/Tampa, Ltd. v. Wells Fargo Realty Advisors Funding, Inc., 546 So. 2d 757 (Fla. 2d DCA 1989). Mortgaged property remains the property of the mortgagor until he is divested of ownership, normally by the order confirming the sale of the mortgaged property. Tymber Scan Properties Ltd. v. Lutheran Mut. Life Ins. Co. of Waverl…