DYCK-O'NEAL, INC.
v.
OERTI STERMILLI
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When a foreclosure court reserves jurisdiction to adjudicate a deficiency judgment but has not adjudicated it, Florida Statutes section 702.06 permits the lender or assignee to bring a deficiency claim in a separate action at law.
[1] When a foreclosure court reserves jurisdiction over a deficiency judgment claim but does not adjudicate it, the lender or assignee may bring a separate action for the def…
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Join FLexlaw to unlock all legal intelligence“when a foreclosure court reserves jurisdiction to adjudicate a deficiency judgment claim but has not adjudicated the claim, section 702.06, Florida Statutes (2014), permits the lender or its assignee to bring its deficiency claim in a separate action at law”
Holding from the Florida Supreme Court in Dyck-O'Neal v. Lanham, which disapproved the prior binding precedent
Dyck-O'Neal, Inc. sought a deficiency judgment against Oerti Stermilli. The trial court dismissed the deficiency claim based on the binding precedent …
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August 3, 2018 PER CURIAM.
In Higgins v. Dyck-O’Neal, Inc., this court held that “a party is not entitled to pursue an action at law on a promissory note where that party includes a prayer for a deficiency judgment in its foreclosure complaint and the trial court reserves jurisdiction to enter a deficiency judgment.” 201 So. 3d 157, 166 (Fla. 1st DCA 2016). Based on that case, which was binding at the time, the trial court dismissed with prejudice appellant’s independent action for a deficiency judgment.
On appeal, appellant argued that Higgins was wrongly decided. And while the appeal was pending, the Florida Supreme Court agreed. It disapproved Higgins and held that “when a foreclosure court reserves jurisdiction to adjudicate a deficiency
2
judgment claim but has not adjudicated the claim, section 702.06, Florida Statutes (2014), permits the lender or its assignee to bring its deficiency claim in a separate action at law.” Dyck-O’Neal v. Lanham, SC17-975, 43 Fla. L. Weekly S278c (Fla. July 6, 2018). Accordingly, we reverse and remand for further proceedings on appellant’s deficiency claim.
REVERSED and REMANDED.
MAKAR, WINOKUR, and WINSOR, JJ., concur.
_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.