JOHN C. SPENCER AND VIRGINIA Q. BEVERLY ET AL., APPELLANTS,
v.
AMERICAN ADVISORY CORP. ET AL., APPELLEES

Fla. 3d DCA | 1976-09-21
No. 76-313
Before PEARSON, HENDRY and NATHAN, JJ.
338 So. 2d 62 Florida District Court of Appeal, Third District (1976) Negative Treatment
Cited by 16 cases

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Holding

The court held that a deficiency judgment may be denied if the property's fair market value at the time of foreclosure sale exceeds the amount due, even if the sale price was lower, and that guarantors are not liable for a deficiency if the debt is satisfied by the foreclosure sale value.


Headnotes

[1] A deficiency judgment may be denied where the fair market value of the foreclosed property exceeds the amount of the final judgment of foreclosure.

[2] The fair market value of foreclosed property, as determined by the trier of fact based on all evidence, can be considered in lieu of the foreclosure sale price when deter…

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Facts & Procedural History

Following a mortgage foreclosure, the plaintiffs purchased the property at the sale for the full amount of the judgment. They then sought a deficiency…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal from an order, entered after judgment and sale in a real estate mortgage foreclosure action, which denied plaintiff-appellant’s motion for a deficiency judgment and final judgment on the guaranty. We affirm. The final judgment of foreclosure found that the plaintiffs were due $8,000,000.00 as principal, together with interest, attorney’s fees and costs. The plaintiffs purchased the property at the foreclosure sale for $8,000,000.00. No objection to the sale was made. The complaint had sought by a separate count to enforce a guaranty of payment of the indebtedness secured by the mortgage and the expenses of collection. After the sale, plaintiffs moved for the entry of “Deficiency Judgment and Final Judgment on the Guaranty.” The court permitted discovery and held a full evidentiary trial upon the issue of the value of the property obtained by the foreclosure of the mortgage. Thereafter, the court entered its order denying the motion upon the following finding:

“5. On November 21, 1975, this Court heard testimony for a full day on the issue of value. Three appraisers testified, two called by the Plaintiffs, and one by the mortgagor. Officials of the City of Miami testified. Based upon all of the testimony, including the testimony of Plaintiffs’ own appraisers, this Court finds as a matter of fact upon the evidence, that the fair market value of the property on the date of foreclosure, on the date of the foreclosure sale and on the date that the Clerk’s Deed issued was greatly in excess of the amount found due by the Final Decree of Foreclosure upon that property.”

This appeal is from that order. Three points have been presented. The first urges that the court should have granted the motion for a judgment on the guaranty because as a matter of law the value of the property obtained at a foreclosure sale does not affect the liability of the guarantors of a mortgage debt where the language of the guaranty unconditionally guarantees the full indebtedness of the borrower. It is urged that the measure of the guarantors’ liability becomes ascertainable immediately following the foreclosure sale.

We hold that the point does not present error because the indebtedness is paid by the foreclosure in which there is no deficiency. See cases collected at 38 Am. Jur.2d “Guaranty” § 51. There is sufficient evidence in the record to support the trial judge’s finding that: “. . . the fair market value of the property ... on the date of the foreclosure sale and on the date that the Clerk’s Deed issued was greatly in excess of the amount found due by the Final Decree of Foreclosure upon that property.” An appellate court will not substitute its judgment for that of a trier of fact when the finding of fact is supported by the record. Crosthwait v. Northern Trust Co., 144 Fla. 231, 197 So. 785 (1940).

Plaintiffs’ second point claims error upon the court’s denial of a deficiency judgment. It is argued that the amount bid at the sale established the value of the property foreclosed for the determination of the equities upon an application for a deficiency judgment. It is established that the sale price is one of the factors to be considered. See Section 45.031(7) Florida Statutes (1975); R. K. Cooper Construction Company v. Fulton, 216 So. 2d 11 (Fla.1968); Kurkjian v. Fish Carburetor Corporation, 145 So. 2d 523 (Fla. 1st DCA 1962). Where, as in the instant case, the court finds from all the evidence that the value of the property recovered exceeds the amount of the final judgment of foreclosure, a deficiency judgment may be denied based upon the equities involved. Cf. Jonas v. Bar-Jam Corp., 170 So. 2d 479 (Fla. 3d DCA 1965); Maudo, Inc. v. Stein, 201 So. 2d 821 (Fla. 3d DCA 1967).

Plaintiffs’ third point claims error upon the refusal of the court to accept into evidence a showing of the amount of the ad valorem assessment upon the property. Also included in the point are claims of error upon the limitation of cross-examination. We think that the court’s ruling upon the amount of the tax assessment is in accord with the holding in Southern Realty and Utilities Corp. v. Gettleman, 197 So. 2d 30 (Fla. 3d DCA 1967). Even if this were not so, we would hold the error harmless in view of the extensive testimony of market value in this record. We have examined the record in the light of the other rulings argued under this point and find no reversible error. Accordingly, the order appealed is affirmed.

Affirmed.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Gottschamer v. August, 438 So. 2d 408 (Fla. 2d DCA 1983)
    …a suit on a guaranty and a foreclosure action are not inconsistent remedies, and therefore pursuit of either of those remedies without satisfaction is not a bar to the pursuit of the other. See Klondike v. Blair; Spencer v. American Advisory Corp., 338 So. 2d 62 (Fla. 3d DCA 1976). We, however, agree with the appellants’ argument that since the price bid at the foreclosure sale was higher than the trial court’s determination of the market value of the property, they were entitled to a set-off in the amount…
  • Cmty. Bank OF Homestead v. Valois, 570 So. 2d 300 (Fla. 3d DCA 1990)
    …exceeds the debt owed, the court may [*304] deny a deficiency judgment. Municipal Sav. & Loan Corp. v. Fiorentino, 512 So. 2d 228 (Fla. 3d DCA 1987); Belgrano v. Finkelstein, 493 So. 2d 543 (Fla. 3d DCA 1986); see Spencer v. American Advisory Corp., 338 So. 2d 62 (Fla. 3d DCA 1976), cert. denied, 348 So. 2d 953 (Fla.1977). Here, the evidence as to fair market value was the price at which the property was resold to Dr. Poppe, Merrill v. Nuzum, 471 So. 2d 128, 129 (Fla. 3d DCA 1985), and the appraisal of $318,…
  • Brandenburg Inv. Corp. v. Farrell Realty, Inc., 463 So. 2d 558 (Fla. 2d DCA 1985)
    …its judgment for that of the trial court.” Shaw v. Shaw, 334 So. 2d 13, 16 (Fla.1976). And when, upon review, the trial court’s findings of fact are supported by the record, they remain undisturbed and conclusive. Spencer v. American Advisory Corp., 338 So. 2d 62 (Fla. 3d DCA 1976). Indeed, “when there is competent evidence to support the findings and judgments of the trial court it is the duty of this court to affirm.” Continental Development Corporation of Florida v. Duval Title and Abstract Company, 356 S…

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