VIDA BLANCHE COLE, SINGLE, INDIVIDUALLY, ETC.,
v.
L. C. HEIDT
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In this second appeal of a foreclosure case, the Florida Supreme Court held that a court lacks jurisdiction to enter a deficiency decree after a final foreclosure decree and confirmation of sale have become absolute by the passage of time, absent an explicit reservation of jurisdiction in the original decree.
The court held that the trial court lacked jurisdiction to enter the deficiency decree. Once the final decree and confirmation of sale have become absolute under statute and rule, a court cannot thereafter reopen the case on motion to supply the omission of a deficiency decree unless jurisdiction was expressly reserved in the original decree.
“If neither the final decree of foreclosure, nor the decrees of confirmation, adjudicate the complainant's right to have á deficiency decree,, nor contain any reservation holding the case open for that purpose, the complainant cannot, after the decrees have become absolute under the statute and rule, on motion have the case reopened and such omission supplied by entry of a deficiency decree.”
Establishes the governing legal standard that deficiency decrees must be adjudicated in the original decree or expressly reserved; cannot be entered later by motion.
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Join FLexlaw to unlock all legal intelligenceA foreclosure sale was confirmed on December 28, 1933, and a deficiency decree for $600 was entered simultaneously. On the first appeal, this Court re…
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This is the second appearance of this case in this Court. See Cole v. Heidt, 117 Fla. 756, 158 So. 435.
On the former appeal the order entering deficiency decree was reversed on the ground and for the reason that the court had not acquired jurisdiction either to grant or to deny a deficiency decree. The reversal of the order then appealed from placed the record in the same condition as it would have been if no deficiency decree had been mentioned in the order confirming sale.
After the mandate of this Court went down, pursuant to opinion and judgment entered here on December 28, 1934, a new party was substituted in lieu of the original defendant. And, thereafter, on March 19, 1935, notice of application for deficiency decree was entered and deficiency decree was granted on May 16, 1935, after testimony taken pursuant to such notice.
*265The final decree carried the following limitation:
“And the Master shall report his actings and doings under this decree to this Court with all convenient speed; and upon the coming in and approval of such report, the complainant has leave to make application for such further orders as he may be entitled to under the law.”
Master’s report of sale was filed December 28, 1933. Confirmation of sale occurred December 28, 1933. The confirmation of sale carried with it a deficiency decree. That deficiency decree, however, appears to have been entered without any basis for the same.
Appeal was taken from that order to this Court and that part of the order granting a deficiency decree in the sum of $600.00 was reversed. See Cole v. Heidt, 117 Fla. 756, 158 Sou. 435. Opinion was filed December 28, 1934, and rehearing denied on January 16, 1935.
On March 19, 1935, two months after the case had been disposed of in this Court, complainant gave notice of application for the entry of a deficiency decree. There was no. reservation in the final decree of jurisdiction to enter any orders after the confirmation of sale. As stated above, the retention of jurisdiction was limited to allow complainant to move for further orders to which the complainant might be entitled on the coming in of Master’s report and there was no order made retaining jurisdiction to enter a deficiency decree after the final decree and the order confirming sale under that decree had become absolute by the running of time.
In Mabson v. Christ, 96 Fla. 756, 119 Sou. 131, we held:
“If neither the final decree of foreclosure, nor the decrees of confirmation, adjudicate the complainant’s right to have á deficiency decree,, nor contain any reservation holding the case open for that purpose, the complainant cannot, after *266the decrees have become absolute under the statute and rule, on motion have the case reopened and such omission supplied by entry of a deficiency decree.”
On authority of the opinion and judgment in that case, the order appealed from should be reversed and it is so ordered.
Reversed.
Ellis, P. J., and Terrell, J., concur.
Whitfield, C. J., and Brown, J., concur in the opinion and judgment.
Davis, J., dissent.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Frumkes v. The Mortg. Guar. Corp., 173 So. 2d 738 (Fla. 3d DCA 1965)…deficiency decree was not reserved, application could not be made therefor in the foreclosure suit after the confirmation order became final. See Mabson v. Christ, 96 Fla. 756, 119 So. 131; Atwell v. Atwell, 111 Fla. 352, 149 So. 555; Cole v. Heidt, 124 Fla. 264, 168 So. 11; Jappe v. Heller, Fla.1953, 65 So. 2d 302; Scheuermann v. Shamas, Fla. 1957, 97 So. 2d 314.…
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Katz v. Koolish, 142 So. 2d 759 (Fla. 3d DCA 1962)…hat the appellee did not make his motion for deficiency decree until the time had expired for filing a petition for rehearing from the final decree or for filing objections to the sale. We find this contention to he without merit. In Cole v. Heidt, 124 Fla. 264, 168 So. 11, the Supreme Court of Florida held: “In Mabson v. Christ, 96 Fla. 756, 119 So. 131, 132, we held: ‘If neither the final decree of foreclosure, nor the decree of confirmation, adjudicate the complainant’s right to have a deficiency decre…
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Wash. Fed. Sav. & Loan Ass'n of Miami Beach v. State of Fla. ex rel. Francis X. Bradley, 155 So. 2d 393 (Fla. 3d DCA 1963)…h directions to the circuit court to dismiss the petition without prejudice. Reversed. . The only reservation of jurisdiction in the decree was for disposition of a foreclosure sale surplus, if any, and there was no such surplus. . Cole v. Heidt, 124 Fla. 264, 168 So. 11; Katz v. Koolish, Fla.App.1962, 142 So. 2d 759.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mabson v. Christ, 96 Fla. 756 (Fla. 1928)
- Cole v. Heidt, 117 Fla. 756 (Fla. 1934)