ROBERT R. FRANK, APPELLANT,
v.
HY LEVINE, LEWIS MARROW AND DANA MARROW, HIS WIFE, APPELLEES
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Frank appeals a trial court's dismissal of his complaint seeking a deficiency judgment following a mortgage foreclosure. The appellate court reverses, holding that the complaint stated a valid cause of action and that res judicata, waiver, and estoppel are affirmative defenses that must be pleaded in the answer rather than raised on a motion to dismiss.
The court held that the complaint stated a valid cause of action for a mortgage foreclosure deficiency, as such actions are expressly authorized by statute. Res judicata, waiver, and estoppel are affirmative defenses that must be pleaded in an answer to the complaint, not raised on a motion to dismiss. Equitable defenses may also be pleaded in law actions and may serve to limit a deficiency award in an action at law just as they do in equity.
“A right of action at law for a deficiency resulting from a mortgage foreclosure sale is expressly conferred by statute. § 702.06, Fla. Stat., F.S.A.”
Establishes the statutory basis for the plaintiff's cause of action and rejects the defendant's jurisdictional challenge
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Join FLexlaw to unlock all legal intelligenceFrank brought an action at law for a deficiency following a foreclosure of mortgage against Levine and the Marrows. The defendants moved to dismiss th…
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Plaintiff appeals from an order dismissing his complaint. The action was at law for a deficiency following a foreclosure of mortgage. Defendants moved to dismiss on three grounds, (1) that the court lacked jurisdiction of the subject matter, (2) that the “cause of action is res judicata” and (3) that plaintiff had waived his action and was estopped to bring an action at law.
The question presented is whether the complaint stated a cause of action. We hold that it did, and that it was error to dismiss the cause. The contention of want of jurisdiction was without merit. A right of action at law for a deficiency resulting from a mortgage foreclosure sale is expressly conferred by statute. § 702.06, Fla. Stat., F.S.A. Exceptional circumstances, which’ could preclude the action if they existed were not disclosed on the complaint. Res judicata, waiver and estoppel are affirmative defenses. Those defenses and' any others available under the facts of the case including equitable defenses should be pleaded in answer to the complaint. Hough v. Menses, Fla.1957, 95 So.2d 410, 412; Stone v. Stone, Fla.App.1957, 97 So.2d 352; Nunez v. Alford, Fla.App.1960, 117 So.2d 208. Cf. Belle Mead Development Corporation v. Reed, 114 Fla. 300, 153 So. 843.
In dismissing the complaint at law for a mortgage foreclosure deficiency, notwithstanding statutory authority for such actions at law, the trial judge may have been motivated by an assumption that equitable considerations which could limit recovery of a deficiency when sought in equity in a foreclosure suit,1 were not available as equitable defenses or partial defenses in a law action for such a deficiency. However, equitable defenses may be pleaded in law actions (rule 1.8(g), Fla. R.C.P., 30 F.S.A.), and there would appear to be no reason why equitable considerations sufficient to limit a deficiency award in equity should not serve equally when pleaded and proved in an action at law to recover a mortgage foreclosure sale deficiency.
Accordingly the order of dismissal is reversed and the cause remanded for further proceedings.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Frumkes v. The Mortg. Guar. Corp., 173 So. 2d 738 (Fla. 3d DCA 1965)…judicata so as to [*741] bar an action thereon at law. Mabson v. Christ, 104 Fla. 606, 140 So. 671 (opinion on rehearing) ; Atlantic Shores Corporation v. Zetterlund, 103 Fla. 761, 138 So. 50, 53-54. But as was held in Frank v. Levine, Fla.App.1964, 159 So. 2d 665, equitable considerations which could have been urged in opposition to a proper and timely application for deficiency decree in a foreclosure suit, may be asserted with similar purpose and effect in a law action for deficiency. Accordingly the orde…
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Maudo, Inc. v. Isidor Stein and Rose Stein, 171 So. 2d 403 (Fla. 3d DCA 1965)…ions. The Jonas case, supra, was concerned with a proceeding in equity for a deficiency decree while our case is one at law on the note, but the same result should obtain, especially in view of this court’s language in Frank v. Levine, Fla.App.1964, 159 So. 2d 665, 666: "However, equitable defenses may be pleaded in law actions (rule 1.8(g), Fla.R.C.P., 30 F.S.A.), and there would appear to be no reason why equitable considerations sufficient to limit a deficiency award in equity should not serve equally whe…
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First Fed. Sav. & Loan Ass'n OF Broward Cnty. v. Consol. Dev. Corp., 195 So. 2d 856 (Fla. 1967)…ach County Circuit Court.” This court on first examination of the petition for certiorari concluded that argument should be heard on the matter because of apparent conflict with decisions of this court we will enumerate: Frank v. Levine, Fla.App., 159 So. 2d 665; Reid v. Miami Studio Properties, Inc., 139 Fla. 246, 190 So. 505; McLarty v. Foremost Dairies, Inc., Fla., 57 So. 2d 434; Luke v. Phillips, 148 Fla. 160, 3 So. 2d 799; and Colmes v. Haco, Inc., Fla.App., 152 So. 2d 524. We have listed the cases wi…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Hough v. Menses, 95 So. 2d 410 (Fla. 1957)
- Stone v. Stone, 97 So. 2d 352 (Fla. 3d DCA 1957)
- Taylor v. Prine, 101 Fla. 967 (Fla. 1931)
- Carlson v. Becker, 45 So.2d 116 (Fla. 1950)
- Belle Mead Dev. Corp. v. Reed, 114 Fla. 300 (Fla. 1934)
- Scheneman v. Barnett, 53 So. 2d 641 (Fla. 1951)
- Kissling v. McCARTHY, 100 So. 2d 434 (Fla. 3d DCA 1958)
- Weintraub v. Weinstein, 154 So. 2d 846 (Fla. 3d DCA 1963)
- Nunez v. Alford, 117 So. 2d 208 (Fla. 2d DCA 1960)
- Carnasion v. Paul, 53 So.2d 304 (Fla. 1951)