WILLIAM D. TENDLER AND MAX ROSENBLUM, APPELLANTS,
v.
LEON GOTTLIEB, APPELLEE
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Endorsers of a note secured by a mortgage are liable for a deficiency decree, including foreclosure costs, and inadequacy of the sale price alone does not demonstrate an abuse of judicial discretion in granting such a decree.
Appellee loaned $50,000 to Ros-Ten, Inc., secured by a mortgage on a leasehold, with the note endorsed by Tendler and Rosenbium. After foreclosure and…
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The appellee Leon Gottlieb made a loan of $50,000 to Ros-Ten, Inc., secured by a mortgage on a 99-year lease held by the corporation on certain improved real estate. The note evidencing the indebtedness was endorsed by William D. Tendler and Max Rosenbium. Upon default, the mortgage was foreclosed. The property was sold on foreclosure for $1,000 subject to a prior mortgage of $315,000. Later a deficiency decree in the amount of $73,749.34 was entered against the maker corporation, the endorser Tendler and the executors of the endorser Rosenbium who had died, the endorsers having been made parties to the foreclosure. The amounts male-*309ing up the deficiency appear from recitations in the deficiency decree which are quoted in the margin.1 This appeal is on ¡behalf of the endorsers.
The immunity from liability for a deficiency decree in mortgage foreclosure suits which had been established for endorsers by earlier decisions of the Supreme Court of Florida, was removed by the Supreme Court in the case of Degge v. First State Bank of Eustis, 145 Fla. 438, 199 So. 564. See 22 Fla.Jur., Mortgages, § 420. The question of the liability of the endorsers in the present case to be subjected to a deficiency decree was not raised by appellants, but they questioned the inclusion in the deficiency decree of the costs incurred in the foreclosure suit, and contended that in granting a deficiency decree the court .abused its discretion because the foreclosure sale was made “for a sum far less than the value of the property.”
Appellants argued that they did •not become obligated to pay costs incident to the foreclosure because they were not parties to the mortgage. No authorities were cited by appellants in support of that contention. Appellee argued that when such endorsements are made in a transaction which involves mortgage security, the endorsements will be deemed to include an obligation to pay the necessary costs to protect and enforce the security lien, and ap-pellee cited certain authorities as support for that proposition.2 That contention of appellee is sound, and, moreover, the note in this case contained language which referred to the mortgage, and covered not only cost of collection of the note but “all costs” of collection by suit or otherwise “in case it becomes necessary to protect the [mortgage] security thereof.”
Appellants argued that although inadequacy of sale price may not be ground to invalidate the foreclosure sale,3 a decree for the deficiency established by the low sale price represents an abuse of discretion.
The jurisdiction conferred by statute to enter a deficiency decree in a mortgage foreclosure suit [§ 702.06, Fla. Stat., F.S.A.] is deemed to be permissive rather than mandatory. It rests in the sound judicial discretion of the court, and a party complaining of such a decision on appeal must carry the burden of making a clear showing of abuse of judicial discretion. Exchange Nat. Bank of Tampa v. Clark-Ray-Johnson Co., 95 Fla. 730, 116 So. 648; Farrar v. Gutierrez, 119 Fla. 306, 161 So. 394. The value of the mortgaged property was not revealed. The fact that the leasehold was sold on foreclosure for $1,000 subject to a $315,000 prior mortgage does not show price inadequacy. Nor was inadequacy made to appear by the fact that the lease was sold eight months later at a substantial profit, because many extraneous factors could have prompted that result. As between the parties, the sum for which the mortgaged property was sold on foreclosure, so long as that sale stands, established its value. Etter v. State Bank of *310Florida, 76 Fla. 203, 79 So. 724. See 22 Fla.Jur., Mortgages, § 421, p. 526.
Giving due effect to the presumption of validity with which the challenged decree comes to this court, we conclude that no abuse of discretion has been shown, and the decree appealed from should be and hereby is,
Affirmed.
HORTON, C. J., and PEARSON, J., concur.
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Builders Fin. Co., Inc. v. Ridgewood Homesites, Inc., 157 So. 2d 551 (Fla. 2d DCA 1963)…nant with equity in the light of the facts of the given case and will not be disturbed unless there is a positive showing of a clear abuse of discretion. [*553] See: Farrar v. Gutierrez, et al., 119 Fla. 306, 161 So. 394 (1935); Tendler v. Gottlieb, 126 So. 2d 308 (Fla.3d Dist.Ct.App.1961). Ridgewood cites Penn Mutual Life Ins. Co. v. Moscovitz, 119 Fla. 708, 161 So. 80 (1935) to support its contention that the price bid at the foreclosure sale was conclusive as between the parties to the suit on the questio…
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Flagship State Bank OF Jacksonville v. Drew Equip. Co., 392 So. 2d 609 (Fla. 5th DCA 1981)…sold. Southern Realty & Utilities Gorp. v. Belmont Mortgage Corp., 186 So. 2d 24 (Fla.1966); Penn Mut. Life Ins. Co. v. Moscovitz, 119 Fla. 708, 161 So. 80 (1935); Etter v. State Bank of Florida, 76 Fla. 203, 79 So. 724 (1918); Tendler v. Gottlieb, 126 So. 2d 308 (Fla. 3d DCA 1961); 2 Wiltsie, Mortgage Foreclosure § 973 (1927); 3 Jones on Mortgages § 2206 (1928). Despite the holdings of the Florida Supreme Court in Southern Realty, supra, and Penn Mut. Life, supra, two Florida district courts subsequently h…
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Nathanson v. Eliot R. Weston and Francoise D. Weston, 163 So. 2d 41 (Fla. 3d DCA 1964)…on the first and second mortgages of some $3,500, were a sufficient showing of equitable considerations’ to warrant the denial of the requested deficiency. We are unable to agree with the appellees’ contention. In Tendler v. Gottlieb, Fla.App.1961, 126 So. 2d 308, this court observed that a sale of mortgaged property for the sum of $1,000 subject to a prior mortgage of $315,000 did not show. an inadequacy of- sale price. Likewise in the case of Carlson v. Becker, Ela.1950, 45 So. 2d 116, the Supreme Court of…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Etter v. State Bank of Fla., 76 Fla. 203 (Fla. 1918)
- Ruff v. Guar. Title & Tr. Co., 99 Fla. 197 (Fla. 1930)
- Maule Indus., Inc. v. Seminole Rock & Sand Co., 91 So. 2d 307 (Fla. 1956)
- Degge v. The First State Bank of Eustis, 145 Fla. 438 (Fla. 1941)
- Bridier v. Burns, 145 Fla. 642 (Fla. 1941)
- Farrar v. Gavino Gutierrez, 119 Fla. 306 (Fla. 1935)
- Exch. Nat'l Bank of Tampa v. Clark-Ray-Johnson Co., 95 Fla. 730 (Fla. 1928)