SCHENEMAN
v.
BARNETT
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The Florida Supreme Court reviewed an order denying a deficiency decree after a chattel mortgage foreclosure. The court held that while the decision to grant a deficiency decree is within the court's discretion, it must be based on equitable principles and supported by the record. The case was remanded for further testimony.
The denial of a deficiency decree is within the sound judicial discretion of the court, but this discretion must be exercised based on established equitable principles and supported by the record. The court found the record insufficient to justify the denial in this case.
“the entry of a deficiency decree "for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court"”
Establishes the statutory basis for the court's discretion in awarding deficiency decrees.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff foreclosed on a chattel mortgage but was denied a deficiency decree for the remaining amount owed. The trial court's order denying this …
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PER CURIAM.
This appeal is from that portion of an order entered in a suit to foreclose a chattel mortgage, denying plaintiff a deficiency decree for the amount remaining due and owing to him after foreclosure sale.
Under the provisions of Section 702.06, Florida Statutes 1949, F.S.A., the entry of a deficiency decree "for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court". This is not an absolute and unbridled discretion, but one which must be supported by established equitable principles as applied to the facts of the particular case, and the exercise of which is reviewable by this court. Carlson et ux., v. Becker, Fla., 45 So. 2d 116; Cragin v. Ocean & Lake Realty Co., 101 Fla. 1324, 133 So. 569, 573, 135 So. 795; Taylor v. Prine, 101 Fla. 967, 132 So. 464.
While the decree of the court below comes to us with a presumption of validity, the equitable considerations justifying a refusal to grant any portion of the deficiency should be made clearly to appear in the record for the reason that, once the jurisdiction of the equity court is invoked to determine this question, its *642 decision thereon is final (but subject, of course, to review on appeal), and the matter then becomes res adjudicata. Coffrin v. Sayles, 128 Fla. 622, 175 So. 236; Reid v. Miami Studio Properties, 139 Fla. 246, 190 So. 505; Atlantic Shores Corp. v. Zetterlund, 103 Fla. 761, 138 So. 50, 54.
In the instant case, we think the ends of justice would be best subserved by re-opening the case for the taking of additional testimony on the question of the denial vel non of a deficiency decree.
Accordingly, the order denying a deficiency decree is reversed and the cause remanded for further proceedings consistent herewith.
Reversed and remanded with directions.
SEBRING, C.J., and CHAPMAN, ADAMS and ROBERTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Scheneman v. Barnett, 53 So. 2d 641 (Fla. 1951)…53 So. 2d 641 (1951) SCHENEMAN v. BARNETT et ux. Supreme Court of Florida, Division B. April 6, 1951. Walter J. Migoski, Miami, for appellant. Benjamin E. Carey, Miami, for appellees. PER CURIAM. This appeal is from that portion of an order entered in a suit…
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Foley Lumber Co. v. Koester, 61 So. 2d 634 (Fla. 1952)…rule that the decision of the court below is presumed to be correct and should not be disturbed on appeal, U.S. Fidelity & Guaranty *640 Co. v. Marshall, 148 Fla. 286, 4 So. 2d 337, Harmon v. Harmon, Fla., 40 So. 2d 209, Scheneman v. Barnett, Fla., 53 So. 2d 641, yet where the lower court misapprehends the legal effect of the evidence as an entirety, the findings of the court should not be sustained. See Newman v. Smith, 77 Fla. 633, 82 So. 236. For the reasons hereinabove stated, the judgment appealed fro…
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Kissling v. McCARTHY, 100 So. 2d 434 (Fla. 3d DCA 1958)…of the opinion that the record in this case fails to show sufficient •facts and circumstances to justify the Chancellor in awarding to plaintiffs a lesser amount than that found to be due and owing to them.” Also, in Scheneman v. Barnett, Fla.1951, 53 So. 2d 641, presenting a similar situation, the Supreme Court said: “While the decree of the court below comes to' us with a presumption of validity, the equitable considerations justifying a refusal to grant any portion of the deficiency should be made clear…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cragin v. Ocean & Lake Realty Co., 133 So. 569 (Fla. 1931)
- Taylor v. Prine, 101 Fla. 967 (Fla. 1931)
- Carlson v. Becker, 45 So.2d 116 (Fla. 1950)
- Atl. Shores Corp. v. Olof Zetterlund and Jeannette Zetterlund, 103 Fla. 761 (Fla. 1931)
- Reid v. Miami Studio Props., Inc., 139 Fla. 246 (Fla. 1939)
- Milo O. Coffrin v. Sayles, 128 Fla. 622 (Fla. 1937)
- Scheneman v. Barnett, 53 So. 2d 641 (Fla. 1951)