ROGER G. HEIM, TRUSTEE, APPELLANT,
v.
THOMAS R. KIRKLAND, TRUSTEE, THOMAS R. KIRKLAND, INDIVIDUALLY, AND GLORIA J. KIRKLAND, HIS WIFE, AND UMATILLA STATE BANK, A FLORIDA CORPORATION, APPELLEES
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A trustee-mortgagee appealed an order striking its prayer for a deficiency decree in a mortgage foreclosure action. The court affirmed the trial court's order, holding that a no-recourse clause in the mortgage and note precluded the mortgagee from obtaining a personal deficiency judgment against the mortgagor-maker, even though the mortgagor covenanted to pay taxes and other charges.
The court held that the no-recourse provisions of the mortgage and note precluded the mortgagee from obtaining a deficiency judgment against the mortgagor-maker for any sums exceeding the amount a sale of the property might bring, despite the mortgagor's covenant to pay taxes and other charges.
[1] A mortgage provision stating that the land is the sole security and precluding further recourse against the mortgagor bars a deficiency judgment against the mortgagor.
[2] A mortgagor's covenant to pay taxes and other charges does not create personal liability for those amounts if the mortgage contract otherwise limits recourse to the prope…
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Join FLexlaw to unlock all legal intelligence“the mortgagee was not entitled to a deficiency judgment against the mortgagor-maker for any sums over and above the amount which a sale of the property might bring.”
The court's holding that the no-recourse clause eliminates personal liability for deficiency judgments
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Join FLexlaw to unlock all legal intelligenceAppellant Heim, as trustee, held a mortgage and note against Thomas R. Kirkland and Gloria J. Kirkland. The mortgage and note contained a provision de…
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DOWNEY, Judge.
Appellant Roger C. Heim, trustee, takes this interlocutory appeal in an action to foreclose a mortgage from an order of the trial court striking appellant’s prayer for a deficiency decree.
The mortgage and note in question contained a provision that the land described in the mortgage was to stand as the sole security with no further recourse against the maker-mortgagor. However, in his complaint appellant prayed for an accounting of the principal, interest, late charges, abstracting, taxes, expenses and costs due from the mortgagor, and for a deficiency decree should a deficiency result. Appel-lees moved to strike the portions of the prayer relative to the claim for taxes, costs, attorney’s fees and any claim for a deficiency, based upon the provision of the note and mortgage designating the land as the sole security and precluding any further recourse against appellees. The trial court entered an order thereon, holding in pertinent part:
“The Court finds, by virtue of the provisions of the note attached to the mortgage, Exhibit ‘A’ to the Complaint, that the Mortgagor, THOMAS R. KIRKLAND, Trustee, has no personal liability for payment of principal or interest on the mortgage note or for late charges, or for abstracting charges, taxes, expenses, costs or attorney’s fees incurred by reason of this suit, and that the foregoing constitute a lien upon the property only. Accordingly, the Defendants’ Motion to Strike Plaintiff’s prayer for deficiency judgment against the Defendants be, and is hereby, granted and the claim for deficiency judgment against the Defendants be, and is hereby struck from the Complaint filed herein,”
We fail to find any error in the order being reviewed. The mortgagor-maker covenanted that he would pay the taxes and other charges so that, as against the land, in the event of a default and foreclosure of the mortgage the mortgagee would be entitled to a judgment for the principal, interest, taxes, attorney’s fees and any other appropriate charges. However, because of the no recourse provisions of the contract the mortgagee was not entitled to a deficiency judgment against the mortgagor-maker for any sums over and above the amount which a sale of the property might bring.
Accordingly, the order appealed from is affirmed.
AFFIRMED.
CROSS and DAUKSCH, JJ., concur.
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Suchman Corporate Park, Inc. v. Greenstein, 600 So. 2d 532 (Fla. 3d DCA 1992)…e, which provide for these fees in the event of the mortgagees’ success, specifically state that these obligations are without recourse against the individual plaintiffs who have “no personal liability” under either instrument. See Heim v. Kirkland, 356 So. 2d 850 (Fla. 4th DCA 1978). The effect of any eventual award of fees to the mortgagees must be limited to an increase in the principal amount of any judgment of foreclosure. Moreover, because the mortgagors are not individually liable for fees, even if the…
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Thomas v. Hartman, 553 So. 2d 1256 (Fla. 5th DCA 1989)…sonally just as they would have been forced to do if the note was unsecured or just as they could do even if there was “good” security. Compare the language here with Sample v. Hundred Lakes Corp., 107 Fla. 568, 145 So. 193 (1933); Heim v. Kirkland, 356 So. 2d 850 (Fla. 4th DCA 1978); Policastro v. Rudt, 180 So. 2d 472 (Fla. 2d DCA 1965). The language here does not contain any latent ambiguity. The language “sole security” means exactly what it says and does not in any way affect the personal liability of Ha…
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Rhoden v. Fed. Deposit Ins. Corp., 619 So. 2d 480 (Fla. 2d DCA 1993)…udgment because it was nonrecourse. When a loan contains a nonrecourse provision, a mortgagee is not entitled to a deficiency judgment against the mortgagor for any sums over and above the amount that a sale of the property brings. Heim v. Kirkland, 356 So. 2d 850, 851 (Fla. 4th DCA 1978).1 The rental profits, which were Rhoden’s property, could not be applied to the $935,-000.00 note. The trial court, therefore, erred in allocating 78.9% of the profits to Rhoden’s nonrecourse obligation; 100% should have bee…
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