COLLINS ASSET GROUP, LLC, APPELLANT,
v.
PROPERTY ASSET MANAGEMENT, INC. AND DELVERT CAMPFIELD, ET AL., APPELLEES

Fla. 1st DCA | 2016-07-13
No. 1D15-1254
ROBERTS, C.J., WOLF, and B.L. THOMAS, JJ., concur.
197 So. 3d 87 Florida District Court of Appeal, First District (2016) Positive Treatment
Cited by 2 cases

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Holding

The court held that the trial court abused its discretion by denying a motion for deficiency judgment without a hearing based on inapplicable pleading requirements.


Headnotes

[1] A post-decretal order that is dispositive of deficiency judgment proceedings and completes all judicial labor on those proceedings is an appealable final order.

[2] A motion for deficiency judgment, filed as a continuation of the original foreclosure suit, is not subject to pleading requirements applicable to foreclosure complaints,…

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Facts & Procedural History

Appellant sought a deficiency judgment after a foreclosure sale. The trial court denied the motion without a hearing, citing a lack of standing and fa…

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Opinion of the Court
PER CURIAM. -

PER CURIAM. -

Collins Asset Group, LLC, appeals the trial court’s post-decretal order denying its Motion To Substitute Party Plaintiff and Motion for Deficiency Judgment. Because the motion was facially sufficient to allege a basis for a post-foreclosure sale deficiency judgment, the court denied the motion without a hearing, and because the trial court’s stated reasons for denial were biased oh :an inápplieáble pleading requirement, the order is reversed and the cause remanded for further proceedings.

This appeal originated from foreclosure proceedings which concluded with the entry of the .Final Summary Judgment in Foreclosure on January 27, 2009. A foreclosure sale was held, and the property sold for substantially less than the foreclosure amount. Accordingly, Appellant filed a post-judgment motion for deficiency judgment. § 702.06, Fla. Stat. The motion was properly filed as a continuation of the original foreclosure suit and not as a separate action. See Kinney v. Countrywide Home Loans Servicing, L.P., 165 So.3d 691, 694 (Fla. 4th DCA 2015); TD Bank, N.A, v. Graubard, 172 So.3d 550, 552 (Fla. 5th DCA 2015).

Appellant initially s.ought review of the trial court’s order as a “non-final order entered after final judgment on an authorized motion,” pursuant to rule 9.130(a)(4), Florida Rules of Appellate Procedure. However, the current version of the rule, effective January 1, 2015, no longer contains the sentence referring to “non-final orders entered after final order upon authorized motions.” The Florida Supreme Court has recently opined that certain post-decretal, non-final orders formerly reviewable via appeal under rule 9.130(a)(4) are now subject to review upon petition for writ of certiorari as a result of the rule amendment. M.M. v. Fla. Dep’t of Children & Families, 189 So.3d 134 (Fla.2016) (post-dependency judgment orders subject to future modification for child welfare and parenting time-sharing are not final orders and are thus reviewable by certiorari, not as final appealable orders).

No additional judicial labor on Appellant’s entitlement to a deficiency judgment is contemplated under the order on appeal here, thus, M.M. does not apply. For purposes of the finality of judgments and orders, Florida courts treat mortgage foreclosure actions and the attendant deficiency proceedings differently from typical civil actions because “foreclosures ‘may involve two distinct but related proceedings that can result in more than one final judgment or order.’ ” Park Fin. of Broward, Inc. v. Jones, 94 So.3d 617, 618 (Fla. *894th DCA 2011). The order before us is an appealable final order because it is disposi-tive of the deficiency judgment proceedings, completes the judicial labor on the deficiency proceedings,. and there is no future additional avenue for appellate review upon any contemplated additional judgment. See Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002) (final judgment is one which ends the litigation between the parties such that “no more judicial labor is required”); Clearwater Fed. Sav. & Loan Ass’n v. Sampson, 336 So.2d 78, 79-80 (Fla.1976); Gaché v. First Union Nat'l Bank, 625 So.2d 86 (Fla. 4th DCA 1993).

We review an order granting or denying a deficiency judgment for - an abuse of the trial court’s discretion. Vantium Capital, Inc. v.. Hobson, 137 So.3d 497, 499 (Fla. 4th DCA 2014). Considering the grounds for the trial court’s summary denial of the motion for deficiency judgment stated in its order, the trial court abused its discretion by applying inapplicable pleading requirements to' the motion and ruling before allowing Appellant an opportunity to be heard.

In its motion seeking a deficiency judgment, Appellant requested that it be substituted as the plaintiff and alleged that it was the owner and . holder of the judgment by assignment. No assignment was attached to the motion or filed with the court, and no response to the motion was filed.1 Without holding a hearing on the motion, the trial court denied the motion based on Appellant’s “lack of standing in that Certificate, of Title was issued to Property Management, Inc., and no document or verified pleading has been filed to indicate transfer of judgment.”

The motion before the trial court was not a complaint for foreclosure. Accordingly, rule 1.115(c), Florida Rules of Civil Procedure, requiring copies of the note to be attached to a certification filed with the complaint, did not apply. Further, rule 1.115(e) requiring complaints for foreclosure to be verified does not apply to motions for deficiency judgment.

Standing is an affirmative defense which is waived if not raised in a responsive pleading. Jaffer v. Chase Home Fin., LLC, 155 So.3d 1199, 1202 (Fla. 4th DCA 2015). Furthermore, the motion seeking a deficiency judgment alleged that Appellant , was the assignee of the judgment and was, therefore, like a complaint for other, affirmative reliéf, “sufficient to indicate that a cause of action exists” and not required to “anticipate affirmative defenses.” Thompson v. Martin, 530 So.2d 495, 496 (Fla. 2d DCA 1988); Shahid v. Campbell, 552 So.2d 321, 322 (Fla. 1st DCA 1989).

Appellant’s motion filed in the trial court was facially sufficient to state a,cause of action for a deficiency judgment and met the applicable pleading requirements.2 Accordingly, the order on appeal is RE*90VERSED and REMANDED for further proceedings on Appellant’s motion.

ROBERTS, C.J., WOLF, and B.L. THOMAS, JJ., concur.


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Citator

Cited By

  • Collins Asset Grp., LLC v. Aurora Loan Servs., LLC, 198 So. 3d 1161 (Fla. 1st DCA 2016)
    …PER CURIAM. Appellant Collins Asset Group, LLC appeals an order denying its Motion to Substitute Party Plaintiff and Motion for Entry of Deficiency Judgment. This case is similar to Collins Asset Group, LLC v. Prop. Asset Mgmt, Inc., 197 So. 3d 87, 88 (Fla. 1st DCA 2016), involving a challenge to the trial court’s Order on Motion to Substitute Party Plaintiff and Motion for Entry of Deficiency Judgment. In that case, Appellant Collins Asset Group filed a Motion to Substitute Party Plaintiff a…

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