JOHN CHENG, APPELLANT,
v.
DYCK-O'NEAL, INC., APPELLEE
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A reservation of jurisdiction in a foreclosure judgment does not preclude a separate common law action for a deficiency judgment if the foreclosure court has not granted or denied the deficiency claim.
Appellant sought relief from a judgment, arguing the trial court lacked jurisdiction for a post-foreclosure deficiency action. The prior foreclosure j…
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We affirm the trial court’s order denying appellant’s Florida Rule of Civil Procedure 1.540 motion for relief from judgment. Appellant argues that the trial court lacked jurisdiction to consider appellee’s post-foreclosure action seeking a deficiency because the final foreclosure judgment in a prior case reserved jurisdiction to consider entering a deficiency judgment.
We agree with Garcia v. Dyck-O’Neal, Inc., 178 So.3d 433 (Fla. 3d DCA 2015), and Dyck-O’Neal, Inc. v. Weinberg, 190 So.3d 137 (Fla. 3d DCA 2016), that section 702.06, Florida Statutes, is unambiguous: “The complainant shall also have the right to sue at common law to recover such deficiency, unless the court in the foreclosure action has granted or denied a claim for a deficiency judgment.” The foreclosure judgment’s reservation of jurisdiction does not preclude a separate suit to recover the deficiency where the foreclosure court has not granted or denied a claim for a deficiency judgment.
Appellant presented no evidence that the foreclosure court had granted or denied any claim for a deficiency judgment. The motion to vacate was properly denied.
Affirmed.
TAYLOR, DAMOORGIAN and LEVINE, JJ., concur.
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Higgins v. Dyck-O'Neal, Inc., 201 So. 3d 157 (Fla. 1st DCA 2016)…Neal, Inc., 178 So. 3d 433, 436 (Fla. 3d DCA 2015) (“When the clear and unambiguous language of a statute commands one result, as here, ... we must apply the statute so as to give effect to legislative intent.”); see also Cheng v. Dyck-O’Neal, Inc., 199 So. 3d 932 (Fla. 4th DCA 2016) (following holdings in Garcia and Weinberg). The Fourth recently certified the existing conflict with this case in Dyck-O’Neal, Inc. v. Stavola, 198 So. 3d 1131 (Fla. 4th DCA 2016), and Dyck-O’Neal, Inc. v. McKenna, 198 So. 3d 10…1 / 2
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Dyck-O'Neal, Inc. v. Hendrick, 200 So. 3d 181 (Fla. 5th DCA 2016)…ficiency judgment. § 702.06, Fla. Stat. (2014) (emphasis added). Our sister courts in Garcia v. Dyck-O’Neal, Inc., 178 So. 3d 433 (Fla. 3d DCA 2015), Dyck-O’Neal, Inc. v. Weinberg, 190 So. 3d 137 (Fla. 3d DCA 2016), and Cheng v. Dyck-O’Neal, Inc., 199 So. 3d 932, 41 Fla. L. Weekly D1076, 2016 WL 2348304 (Fla. 4th DCA May 4, 2016), have recently addressed the same issue pending before us. Both courts determined that the language in section 702.06 is unambiguous and that a separate action at law for a deficie…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Garcia v. Dyck-O'Neal, Inc., 178 So. 3d 433 (Fla. 3d DCA 2015)
- Dyck-O' Neal, Inc. v. Weinberg, 190 So. 3d 137 (Fla. 3d DCA 2016)