LISA GDOVIN, APPELLANT,
v.
DYCK-O'NEAL, INC., APPELLEE

Fla. 2d DCA | 2016-08-10
No. 2D16-394
BLACK and SLEET, JJ., Concur.
198 So. 3d 986 Florida District Court of Appeal, Second District (2016) Positive Treatment
Cited by 11 cases

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Synopsis

Lisa Gdovin appealed an order denying her motion for relief from judgment in an independent deficiency action filed by Dyck-O'Neal, Inc. The court held that a circuit court has subject matter jurisdiction to adjudicate an independent deficiency action when a foreclosure court had reserved jurisdiction to grant deficiency relief without granting or declining the claim, pursuant to section 702.06, Florida Statutes.

Holding

A circuit court has subject matter jurisdiction to adjudicate an independent deficiency action in such circumstances. Section 702.06, Florida Statutes (2013), authorizes the filing of an independent deficiency action because the foreclosure court did not grant or decline to grant the deficiency judgment claim.

Headnotes

[1] A circuit court has subject matter jurisdiction to adjudicate an independent deficiency action when the plaintiff requested deficiency relief in a separate foreclosure ac…

[2] Section 702.06, Florida Statutes, authorizes the filing of an independent deficiency action when the foreclosure court has not granted or denied the deficiency judgment c…

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Key Quotes

“the foreclosure court did not grant or decline to grant the deficiency judgment claim”

Establishes the test for when an independent deficiency action may be filed under section 702.06

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Facts & Procedural History

Dyck-O'Neal, Inc., as assignee of a foreclosure judgment and note, filed an independent deficiency action against Gdovin. The underlying foreclosure a…

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Topics
Plain Language Statutory Construction Reservation Of Jurisdiction Deficiency Judgment Plain Language Rule

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Opinion of the Court
SILBERMAN, Judge.

SILBERMAN, Judge.

Lisa Gdovin seeks review of an order denying her motion for relief from judgment in an independent deficiency action filed by Dyck-O’Neai, Inc., as assignee of the underlying foreclosure judgment and note. ' Gdovin unsuccessfully argued that the circuit court lacked subject matter jurisdiction because jurisdiction to enter a deficiency judgment résted solely with the foreclosure court. We affirm.

The question here is whether a circuit court has subject matter jurisdiction to adjudicate an independent deficiency action when the plaintiff had requested deficiency relief in its complaint in a separate foreclosure action involving the same note and the foreclosure court had entered a final judgment reserving jurisdiction to grant deficiency relief. We answer the question in the affirmative. We agree with the Third District’s conclusion that the plain language of section 702.06, Florida Statutes (2013), authprizes the filing of an independent deficiency action in such cases because “the foreclosure court did not grant or decline to grant the deficiency judgment claim.” Garcia v. Dyck-O’Neal, Inc., 178 So.3d 433, 436 (Fla. 3d DCA 2015); see also Dyck-O’Neal, Inc. v. Beckett, No. 5D15-3005, — So.3d -, 2016 WL 3570108 (Fla. 5th DCA July 1, 2016); Dyck-O’Neal, Inc. v. Hendrick, No. 5D15-*9873790, — So.3d -, 2016. WL 3570112 (Fla, 5th DCA July 1, 2016); Cheng v. Dyck-O’Neal, Inc,, — So.3d -, 41 Fla. L. Weekly D1076, 2016 WL 2348304 (Fla. 4th DCA May 4, 2016); Dyck-O’Neal, Inc. v. Weinberg, 190 So.3d 137 (Fla. 3d DCA 2016).

In so deciding, we certify conflict with the First District’s decision in Higgins v. Dyck-O’Neal, Inc., — So.3d —, 41 Fla. L. Weekly D1376, 2016 WL 3191146 (Fla, 1st DCA June 9, 2016). The court in Higgins rejected the Third District’s plain language interpretation of section 702.06 and 'instead concluded that the outcome was controlled by First Federal Savings & Loan Ass’n of Broward County v. Consolidated Development Corp., 195 So.2d 856 (Fla.1967), and Belle Mead Development Corp. v. Reed, 114 Fla. 300, 153 So. 843 (1934). See Higgins, — So.3d at -, 41 Fla. L. Weekly at 1379, 2016 WL 3191146, at *-. But as Judge Makar stated in his dissenting opinion in Higgins, the plain language of the 2013 amendment to section 702.06 “trumps whatever perceived inconsistency” exists with First Federal Savings and Belle Mead. Id. at -, 41 Fla. L. Weekly at D1380, 2016 WL 3191146, at *11 (Makar, J., dissenting). We therefore affirm the order denying Gdovin’s motion for relief from judgment.

Affirmed; conflict certified.

BLACK and SLEET, JJ., Concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Dyck-O'Neal, Inc. v. Lanham, 214 So. 3d 802 (Fla. 1st DCA 2017)
    …rves jurisdiction to enter a deficiency judgment). In so ruling, we certify conflict with Garcia v. Dyck-O’Neal, Inc., 178 So. 3d 433 (Fla. 3d DCA 2015); Dyck-O’Neal, Inc. v. Hendrick, 200 So. 3d 181 (Fla. 5th DCA 2016); Gdovin v. Dyck-O’Neal, Inc., 198 So. 3d 986 (Fla. 2d DCA 2016); Dyck-O’Neal, Inc. v. McKenna, 198 So. 3d 1038 (Fla. 4th DCA 2016). WOLF, RAY, and MAKAR, JJ., CONCUR.…
  • Higgins v. Dyck-O'Neal, Inc., 201 So. 3d 157 (Fla. 1st DCA 2016)
    …3766717, 41 Fla. L. Weekly D1660 (Fla. 2d DCA July 15, 2016), and even more recently certified conflict with this case, finding the “plain language” of the statute that allows pursuit of an independent deficiency action. Gdovin v. Dyck-O’Neal, Inc., 198 So. 3d 986 (Fla. 2d DCA 2016). Indeed, even our court has allowed an independently filed complaint for a deficiency judgment under section 702.06 to proceed. See Dyck-O’Neal, Inc. v. Huthsing, 181 So. 3d 555 (Fla. 1st DCA 2015). Because all other districts are…
  • Dyck-O'Neal, Inc. v. Lanham, 257 So. 3d 1 (Fla. 2018)
    …decision is in direct conflict with decisions of every other district court of appeal- Garcia v. Dyck-O'Neal, Inc. , 178 So. 3d 433 (Fla. 3d DCA 2015), Dyck-O'Neal, Inc. v. Hendrick , 200 So. 3d 181 (Fla. 5th DCA 2016), Gdovin v. Dyck-O'Neal, Inc. , 198 So. 3d 986 (Fla. 2d DCA 2016), and Dyck-O'Neal, Inc. v. McKenna , 198 So. 3d 1038 (Fla. 4th DCA 2016), regarding whether a complainant may pursue a separate action at law to recover a deficiency judgment when the foreclosure court reserved jurisdiction in its…

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