JUNCTION BIT & TOOL COMPANY, A COLORADO CORPORATION, PETITIONER,
v.
VILLAGE APARTMENTS, INC., A FLORIDA CORPORATION, RESPONDENT
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The Florida Supreme Court clarified that a creditor who obtains a judgment on a promissory note is not barred from subsequently foreclosing on a mortgage securing that note, provided the judgment proves uncollectible. The Court overruled its prior precedent in Teague v. Harrison to align with more recent District Court decisions.
An unsatisfied judgment does not constitute a remedy and therefore does not bar a subsequent foreclosure action on a mortgage securing the note. The Court overruled State ex rel. Teague v. Harrison to the extent it held that election to sue on a note bars subsequent foreclosure of the securing mortgage.
[1] An unsatisfied judgment on a note does not bar a subsequent foreclosure action on the mortgage securing that note.
[2] A prior election of remedies is of no consequence when the chosen remedy proves to be worthless.
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Join FLexlaw to unlock all legal intelligence“an election to sue on a note at law acted as a bar to any subsequent suit for foreclosure of a mortgage standing as security for the note”
Statement of the prior rule in Teague v. Harrison that the Court is now overruling
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Join FLexlaw to unlock all legal intelligenceJunction Bit & Tool Company obtained a judgment against Village Apartments, Inc. on a promissory note secured by a mortgage. The judgment execution wa…
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Certiorari was granted in this cause on account of conflict between the decision rendered below by the District Court of Appeal, Fourth District, reported at 250 So.2d 349 (1971), and language employed by this Court in State ex rel. Teague v. Harrison, 138 Fla. 874, 190 So. 483 (1939).
In Teague, we said that an election to sue on a note at law acted as a bar to any subsequent suit for foreclosure of a mortgage standing as security for the note. In the instant case, the District Court determined on authority of its previous decision in Klondike, Inc. v. Blair, 211 So.2d 41 (4th D.C.A.Fla.1968), that Village could bring a foreclosure action on a certain mortgage, even though it had already obtained judgment on a note secured by the mortgage.
In Klondike, the District Court discussed Teague, and decided that it should not apply in an instance where a judgment proved to be worthless because the execution was returned unsatisfied. The District Court pointed out that the issue of an election of remedies was transparent and of no consequence when no real remedy resulted. We find that other District Courts are in agreement with Klondike: see Lisbon Holding & Inv. Co. v. Village Apartments, Inc., 237 So.2d 197 (3rd D.C.A.Fla.1970); Floorcraft Distributors, Inc. v. Horne-Wilson, Inc., 251 So.2d 138 (1st D.C.A.Fla.1971).
Having reexamined our position advanced in Teague, we now find ourselves in agreement with the District Court below that an unsatisfied judgment does not constitute a remedy, and does not bar a foreclosure action. It has been urged by petitioner that Fla.Stat. § 702.06, F.S.A., relating to deficiency suits arising out of foreclosures, suggests a contrary result, but this statute appears to have no application to a suit on a note brought independently of any attempt at foreclosure.
To the extent indicated above, State ex rel. Teague v. Harrison, supra, is specifically receded from; certiorari having been granted, and the decision of the District Court of Appeal, Fourth District, appearing to be without error, the writ heretofore issued is discharged.
It is so ordered.
ERVIN, Acting C. J., BOYD and DEK-LE, JJ., and DREW, J. (Retired), concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pierre Villeneuve for Lehman Mfg. (Canada), Ltd. v. Atlas Yacht Sales, Inc., 483 So. 2d 67 (Fla. 4th DCA 1986)…remedies is to prevent a double recovery for the same wrong. As noted by this court in Klondike, Inc. v. Blair, 211 So. 2d 41 (Fla. 4th DCA 1968), a case which was approved by the supreme court in Junction Bit & Tool Co. v. Village Apartments, Inc., 262 So. 2d 659 (Fla.1972): The doctrine of election of remedies is an application of the doctrine of estoppel on the theory that one electing should not later be permitted to avail himself of an inconsistent course. Williams v. Robineau, 1936, 124 Fla. 422, 168 S…
Authorities Cited
- Klondike, Inc. v. Blair, 211 So. 2d 41 (Fla. 4th DCA 1968)
- State ex rel. S. E. Teague v. Harrison, 138 Fla. 874 (Fla. 1939)
- Floorcraft Distribs., Inc. v. Horne-Wilson, Inc., 251 So. 2d 138 (Fla. 1st DCA 1971)
- Lisbon Holding & Inv. Co., Ltd. v. Vill. Apts., Inc., 237 So. 2d 197 (Fla. 3d DCA 1970)
- Junction BIT & Tool Co. v. Vill. Apts., Inc., 250 So. 2d 349 (Fla. 4th DCA 1971)
- Norbert Bruce Price v. Olive Gervis Scott, 250 So. 2d 349 (Fla. 4th DCA 1971)