DYCK-O'NEAL, INC., APPELLANT,
v.
LARRY HENDRICK, JR. AND CATHY HENDRICK, APPELLEES
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A party may file a separate action at law to recover a deficiency judgment even if the foreclosure court reserved jurisdiction, as long as the foreclosure court has not yet granted or denied the deficiency claim.
[1] A party may file a separate action at law to recover a deficiency judgment when the foreclosure court has reserved jurisdiction to enter a deficiency judgment but has nei…
[2] The right to sue at common law to recover a deficiency is preserved unless the court in the foreclosure action has granted or denied a claim for a deficiency judgment.
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Join FLexlaw to unlock all legal intelligenceAfter a foreclosure sale, the plaintiff assigned the judgment and note to the appellant. The appellant then filed a separate action at law to recover …
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The issue we address in this case is whether a trial court’s reservation of jurisdiction in a final judgment of foreclosure to enter a deficiency judgment precludes a party from filing a separate action at law to recover a deficiency when the foreclosure court has neither granted nor denied the deficiency judgment. Our answer to this question is “no.”
The relevant facts are not in dispute. Appellees were defendants in a foreclosure action in which the plaintiff included in its complaint a request that the trial court reserve jurisdiction to award a deficiency judgment, if appropriate. The court eventually entered its final judgment of foreclosure and reserved jurisdiction to award a *182deficiency judgment. After the foreclosure sale, the plaintiff assigned the judgment and note, including the right to pursue a deficiency judgment, to Dyck-O’Neal, Inc. (“Appellant”). Rather than pursuing the deficiency judgment in the foreclosure action, Appellant filed a separate action at law against Appellees to recover a deficiency judgment. Appellees filed a motion to dismiss for lack of jurisdiction, arguing that the court that entered the final judgment of foreclosure and reserved jurisdiction to consider the entry of a deficiency judgment was the only court that had jurisdiction to consider the deficiency. The lower court agreed and entered the final order on appeal, dismissing the action based on a lack of subject matter jurisdiction.
The resolution of this appeal comes from the language of section 702.06, Florida Statutes (2014), which provides in pertinent part:
In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound discretion of the court; however, in the case of an owner-occupied residential property, the amount of the deficiency may not exceed the difference between the judgment amount, or in the case of a short sale, the outstanding debt, and the fair market value of the property on the date of sale.... 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.
§ 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 deficiency was permitted, notwithstanding the foreclosure court’s reservation of jurisdiction in its final judgment to consider a deficiency. More recently, the First District Court of Appeal reached the opposite result, holding that a party is not entitled to pursue a separate action at law where the foreclosure complaint includes a prayer for a deficiency judgment and the trial court reserves jurisdiction to enter a deficiency judgment. Higgins v. Dyck-O’Neal, Inc., — So.3d —, 41 Fla. L. Weekly D1376, 2016 WL 3191146 (Fla. 1st DCA June 9, 2016).
We agree with the Third District and Fourth District that section 702.06 is unambiguous. The dispositive question under the statute is whether the foreclosure court has granted or denied a claim for a deficiency judgment. In the case below, the foreclosure court had not granted or denied a deficiency judgment. Thus, the plain language of section 702.06 permitted Appellant to bring the suit at issue to recover a deficiency against the Appellees, and the trial court erred in dismissing the action based on the lack of subject matter jurisdiction.1 Accordingly, we reverse the final order of dismissal and remand with *183instructions to reinstate the complaint filed. We certify conflict with Higgins v. Dyck-O’Neal, Inc., — So.3d —, 41 Fla. L. Weekly D1376, 2016 WL 3191146 (Fla. 1st DCA June 9, 2016).
REVERSED and REMANDED, with instructions; CONFLICT CERTIFIED.
LAWSON, C.J., and ORFINGER, J.,' concur.
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Citator
Cited By
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Dyck-O'Neal, Inc. v. Lanham, 214 So. 3d 802 (Fla. 1st DCA 2017)…a prayer for a deficiency judgment and the foreclosure court reserves 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.…
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Higgins v. Dyck-O'Neal, Inc., 201 So. 3d 157 (Fla. 1st DCA 2016)…cases it held that the “plain language” of the statute is “unambiguous” in allowing the company to bring a separate suit to recover a deficiency judgment, both certifying conflict with the decision in [*169] this case. Dyck-O’Neal, Inc. v. Hendrick, 200 So. 3d 181 (Fla. 5th DCA 2016); Dyck-O’Neal, Inc. v. Beckett, 200 So. 3d 179 (Fla. 5th DCA 2016). And the Second District recently characterized section 702.06 as allowing the “filing of the statutorily permitted independent action to pursue the deficiency” at…
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Dyck-O'Neal, Inc. v. Lanham, 257 So. 3d 1 (Fla. 2018)…3d 802 (Fla. 1st DCA 2017). The district court certified that its 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…
Previewing 3 of 4 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)
- Cheng v. Dyck-O'Neal, Inc., 199 So. 3d 932 (Fla. 4th DCA 2016)
- Dyck-O' Neal, Inc. v. Weinberg, 190 So. 3d 137 (Fla. 3d DCA 2016)