LPP MORTGAGE LTD. F/K/A LOAN PARTICIPANT PARTNERS, LTD., ETC., APPELLANT,
v.
CARLOS CACCIAMANI, APPELLEE
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LPP Mortgage appealed a summary judgment dismissing its guaranty claim against Cacciamani. The court reversed, holding that pursuit of foreclosure and a separate guaranty action are not inconsistent remedies, and LPP Mortgage could pursue the guaranty claim despite earlier representations about not seeking a deficiency judgment on the mortgage.
A suit on a guaranty and a foreclosure action are not inconsistent remedies; therefore, pursuit of one remedy without complete satisfaction is not a bar to pursuit of the other. LPP Mortgage could pursue the guaranty claim because it did not receive complete satisfaction from the foreclosure.
[1] A suit on a guaranty and a foreclosure action are not inconsistent remedies, and therefore pursuit of either of those remedies without satisfaction is not a bar to the pu…
[2] A party is not barred from pursuing a claim on a guaranty after a foreclosure action if the foreclosure action did not result in complete satisfaction of the debt.
Previewing 2 of 4 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 suit on a guaranty and a foreclosure action are not inconsistent remedies, and therefore pursuit of either of those remedies without satisfaction is not a bar to the pursuit of the other”
Establishes the core legal principle that foreclosure and guaranty claims may be pursued sequentially or alternatively without one barring the other.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn July 2001, LPP Mortgage sued Cacciamani for recovery on a note and mortgage securing a $262,000 SBA loan. The trial court initially ordered LPP Mor…
The full statement of facts, procedural history, and disposition for this case are member content.
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FLETCHER, Judge.
LPP Mortgage Ltd. appeals from a summary final judgment entered in favor of Carlos Cacciamani in an action to recover on a guaranty. We reverse.
In July of 2001, LPP Mortgage filed an action against Cacciamani, his dissolved corporation, Cacciamani Architectural Corporation, and his condominium association. The complaint contained two counts. Count I sought to reestablish a note dated April 10, 1993 executed by the corporation to the Small Business Administration1 for a $262,000 loan. Count II sought foreclosure of a mortgage executed by Cacciama-ni personally securing the note with his Grove Square condominium.
The trial court entered an order on December 19, 2001 which ruled on several motions to dismiss filed by the defendants. The order denied the motions, but contained certain language which later resulted in confusion. The order stated: “Furthermore, the Court has noted the representation made by Plaintiff at hearing, that the Plaintiff was not seeking any deficiency judgment after the foreclosure of. the mortgage which is the subject of Count II. Hence, the demand for deficiency judgment in the last paragraph of the Complaint is hereby stricken.”
LPP Mortgage was subsequently allowed to amend its complaint to include a claim based on a separate guaranty given by Cacciamani on the loan. About this time, LPP Mortgage bought the condominium at a foreclosure 'sale ordered in a separate action instituted by the first mortgagee. The defendants argued that the amended complaint should be dismissed with prejudice because the plaintiff now owned the mortgaged property and it had previously represented that it would not seek a deficiency judgment.
The trial judge denied the dismissal motion with prejudice. Instead, the plaintiff was ordered to delete the count for foreclosure. The order further indicated that the “amended complaint shall be for a cause of action on the Guaranty, stating with specificity the amount of damages sought.” The plaintiff amended its complaint in accordance with the trial judge’s instructions and the case proceeded. When LPP Mortgage subsequently moved for summary judgment, the defendants again contended that plaintiffs claim was barred by the December 19, 2001 order. The successor judge who heard argument on the motion accepted defendants’ argument and entered judgment in favor of Cacciamani.
Cacciamani claims the December 19, 2001 order memorialized LPP Mortgage’s election to forego seeking a deficiency judgment and, in denying the motion for summary judgment, the trial court was properly holding LPP Mortgage to its word. This argument, however, does not take into account the fact that the same trial judge who entered the December order subsequently permitted amendment of the complaint to add a claim under the separate guaranty. The initial claims were not predicated on the guaranty, but solely on the note and mortgage. As stated in Gottschamer v. August, Thompson, Sherr, Clark & Shafer, P.C., 438 So. 2d 408, 409 (Fla. 2d DCA 1983), “a suit on a guaranty and a foreclosure action are not inconsistent remedies, and therefore pursuit of either of those remedies without satisfaction is not a bar to the pursuit of the other.” See also Syfrett v. Amsouth Bank of Florida, 588 So. 2d 46 (Fla. 1st DCA 1991). LPP Mortgage did not receive complete satisfaction in the foreclosure action and was, therefore, within its right to demand the remaining indebtedness from Cacciamani under the guaranty.
Accordingly, we reverse the summary judgment entered in favor of Cacciamani and remand for further proceedings consistent with this opinion.
Reversed and remanded.
. The SBA loan was later assigned to LPP Mortgage.
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Royal Palm Corporate Ctr. Ass'n, Ltd. v. Pugliese, III, 89 So. 3d 923 (Fla. 4th DCA 2012)…ity and the trial court does not exercise its jurisdiction to consider the merits of a deficiency judgment, the plaintiff may file an action on the promissory note or guaranty to recover the remaining indebtedness. See LPP Mortg. Ltd. v. Cacciamani, 924 So. 2d 930 (Fla. 3d DCA 2006) (guaranty); De Las Cuevas v. Nat’l Enters. Inc., 927 So. 2d 41 (Fla. 3d DCA 2006) (note). . Rule 89 of Florida Rules of Equity Actions was adopted in 1873 and provided that a deficiency "could be granted under prayer for general…
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Weston Orlando Park, Inc. v. Fairwinds Credit Union, 86 So. 3d 1186 (Fla. 5th DCA 2012)…(Fla. 4th DCA 1982). However, Fairwinds continues to have a right to pursue a deficiency judgment against the obligors and to demand the remaining indebtedness from the Marulan-das under the guaranty agreements. See LPP Mortg. Ltd. v. Cacciamani, 924 So. 2d 930, 931 (Fla. 3d DCA 2006) (holding action on guaranty and foreclosure not inconsistent remedies); Kurkjian v. Fish Carburetor Corp., 145 So. 2d 523, 526 (Fla. 1st DCA 1962) (stating that final decree in foreclosure action does not dispose of deficienc…
Authorities Cited
- Gottschamer v. August, 438 So. 2d 408 (Fla. 2d DCA 1983)
- Hill v. State, 588 So. 2d 46 (Fla. 1st DCA 1991)