601 WEST 26 CORP., APPELLANT,
v.
EQUITY CAPITAL CO. ET AL., APPELLEES
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A mortgage foreclosure defendant appeals a deficiency judgment entered against it. The court reverses because a pending redemption suit by a junior lienholder, which was not joined in the foreclosure action, could materially affect the deficiency amount, making premature entry of the deficiency judgment erroneous.
The court held that it was error to enter the deficiency judgment while Sponder's suit to redeem remained pending and undetermined, because the outcome of that redemption suit could eliminate or substantially reduce the basis for any deficiency claim.
[1] A deficiency judgment in a mortgage foreclosure suit may be improperly entered when a separate suit to redeem, filed by a junior encumbrancer not joined in the foreclosur…
[2] The outcome of a junior encumbrancer's suit to redeem may substantially affect the basis for claiming a deficiency judgment in a prior mortgage foreclosure.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“in view of the showing of the pendency of Sponder's suit to redeem it was error to enter the deficiency judgment”
The court's core holding that the deficiency judgment was premature given the pending redemption suit
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Join FLexlaw to unlock all legal intelligence601 West 26 Corp. was a defendant in a mortgage foreclosure suit brought by Equity Capital Co. After foreclosure, the plaintiff moved for a deficiency…
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601 West 26 Corp., a defendant below, appeals from a deficiency judgment entered *772against it in a mortgage foreclosure suit. Earlier appeals in the cause, which concerned other matters, are reported in 174 So.2d 626; 177 So.2d 739; 178 So.2d 894; and 198 So.2d 55.
In response to the plaintiff’s motion for deficiency judgment the defendants filed an answer asserting certain equitable defenses relied upon, and averring that the entry of a deficiency judgment would be untimely and inappropriate because there was pending and undetermined in another division of the circuit court a suit to redeem, filed by a junior encumbrancer, Myron Sponder, who had not been joined as a defendant in the foreclosure suit.1 In addition, the defendants filed a separate motion to stay the proceedings on the motion for a deficiency judgment, because of the pendency of the separate suit to redeem.
When the motion for deficiency judgment came on for hearing before the court on September 9, 1969, the matters raised by the defendants, other than as to the pendency of the Sponder suit to redeem, were not concluded; authority was granted to file memoranda of law as to the effect of the suit to redeem; and the matter was reset to be heard on December 3, 1969. Thereafter, on September 24, 1969, prior to the filing of the memoranda of law and without further hearing, the court entered the deficiency judgment to which this appeal is addressed.
We agree with the contention of the appellant that in view of the showing of the pendency of Sponder’s suit to redeem it was error to enter the deficiency judgment. It may well be, as the defendants represented in their motion for stay, that the outcome of the Sponder suit to redeem could remove in substantial part the basis for claiming any deficiency. Only if the determination of the Sponder suit to redeem results in the continued existence of the deficiency (if Sponder does not redeem), or some part thereof (in event Sponder does redeem), would it be necessary to consider the merits of the plaintiff’s motion for a mortgage foreclosure deficiency judgment as tested against the equitable considerations interposed by the defendants. See § 702.06 Fla.Stat., F.S.A.; Kurkjian v. Fish Carburetor Corp., Fla.App. 1962, 145 So.2d 523.
Judgment reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Kurkjian v. Fish Carburetor Corp., 145 So. 2d 523 (Fla. 1st DCA 1962)
- 601 W. 26 Corp. v. Equity Cap. Co., 174 So. 2d 626 (Fla. 3d DCA 1965)
- 601 W. 26 Corp. v. Equity Cap. Co., 178 So. 2d 894 (Fla. 3d DCA 1965)
- 601 W. 26 Corp. v. Equity Cap. Co., 177 So. 2d 739 (Fla. 3d DCA 1965)
- 601 W. 26 Corp. v. Equity Cap. Co., 198 So. 2d 55 (Fla. 3d DCA 1967)