How long is too long? The one-year statute of limitations for seeking a deficiency was at issue in Accardi v. Regions Bank, Case No.: 4D20-0662, 45 Fla. L Weekly D2740 (Fla. 4th DCA, December 9, 2020). At the end are some teasers for a few other opinions.
August 2015. Final Judgment of Foreclosure retaining jurisdiction for a deficiency judgment.
December 3, 2015. Certificate of Sale reflecting the Bank’s high bid of $300.
April 2016. Certificate of Title issued to the Bank.
February 21, 2017. Bank sells the property.
September 2018. Trial court grants Bank’s motion to tax attorney’s fees.
March 12, 2019. Bank moves for deficiency judgment in the foreclosure action.
February 2020. Trial court grants a deficiency judgment, rejecting a statute of limitations defense based on Section 95.11(5)(h) Fla. Stat. (2018).
The trial court’s deficiency judgment was reversed. The crux of the appeal was whether a motion for deficiency judgment filed post-judgment in the mortgage foreclosure lawsuit constitutes an “action to enforce a claim of a deficiency” regulated by Section 95.11(5)(h) Fla. Stat. (2018), which states in part:
Actions other than for recovery of real property shall be commenced as follows:
. . .
(5) Within one year.—
. . .
(h) An action to enforce a claim of a deficiency related to a note secured by a mortgage against a residential property that is a one-family to four-family dwelling unit. The limitations period shall commence on the day after the certificate is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure.
The court then sought to determine the definition of an “action” in Chapter 95 also provides:
A civil action or proceeding, called “action” in this chapter . . . shall be barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in these statutes, within the time prescribed elsewhere.
Section 95.011 Fla. Stat. (2018). (Emphasis by court).
Reciting that a statute which is clear and unambiguous does not need interpretation, but that “plain and ordinary meaning should control”, the court nevertheless proceeded to review a number of decisions regarding the meaning the statute.
Concerning what is an “action,” Recognizing that discovery as “post-judgment collection mechanisms are extensions of the original cause of action,” the appellate court further focused on the term “proceeding” which is apparently far broader than the term “action” following Burshan v. National Union Fire Ins., 806 So. 2d 835, 842-43 (Fla. 4th DCA) (2001). (Citation omitted).
Carving out an exception to the “general rule,” a deficiency proceeding has its own statute of limitations, apparently differentiating normal post-judgment collection and enforcement matters. Falling back on practicality, the decision concludes that to not apply the statute of limitations to motions for deficiency “would effectively gut the application of the statute.…”
Thus, the time to seek a deficiency was triggered by the certificate of title in April 2016 and the Bank’s motion in 2019 was untimely.
Finally, the court noted the statute’s plain reference to the “certificate is issued” does not defined which certificate. Rejecting the alternative that it refers to a certificate of sale, the “less than” precise language is assumed to refer to the certificate of title paralleling statutes’ the deed in lieu of foreclosure alternative.
This may be the first decision interpreting the deficiency of the statue of limitations.
Readers of advance sheets may have noticed an increasing trend of language that a statute is “clear and unambiguous” but still undertaking an interpretive analysis. Slapping the “clear and unambiguous” label is disconcerting if not decidedly unhelpful for trial courts and practitioners, especially as unanticipated fact situations will likely create further ambiguities when the statute is applied.
It is unclear as to what caused the Bank to delay, not only in moving for the deficiency judgment, but also in the two and a half years between the certificate of title and the Bank moving for post judgment attorney’s fees.
Appellate practitioners, note that this case moved swiftly through the system, as least when the opinion has a not low case number: 4D20-0662.
Concluding, the proverbial “moral of the story” is if you have a deficiency, then file your motion. There does not appear be a downside to filing swiftly after the issuance of a certificate of title, though being careful of the one year lack of prosecution time pursuant to Rule 1.420(e).
Practitioners may be interested in a couple of other decisions issued the same week:
Restoration Construction, LLC v. Safepoint Ins, Case No.: 4D19-3790, 45 Fla. L. Weekly D2732(Fla. 4th DCA, December 9, 2020) reversing a summary judgment in favor of an insurer holding that the insurer’s five day delay in initially inspecting a property damage claim plus twelve days to send professional inspectors raised a question of fact whether the insurer suffered prejudice by the insureds not reporting the claim for five days.
RJ Reynolds Tobacco Co. v. Kaplan, Case No.: 4D18-2880, 45 Fla. L. Weekly D2728 (Fla. 4th DCA, December 9, 2020 holding that argument referring to tobacco companies and same reference as the movie Schinder’s List and 1984, is improper, though apparently relying upon the discretion of trial court judges, but strongly reminding trail court judges of the availability of indirect civil contempt monetary sanctions for repeated violations of rulings concerning improper argument to a jury.
Walker v. State, Case No. 4D 19-3289, 45 Fla. L. Weekly D 2726 (Fla. 4th DCA December 9, 2020), holding that an expert may opinion on cell phone tracking data admissible under Daubert, broadly stating “it would be unrealistic and unworkable to expect any expert, who uses a technology with a computer component, to be able to testify as to the workings of the algorithm that is part of its software or every technical that is part of the underlying system.”
Best for a grand, healthy and sane new year!
Michael J. Gelfand
Real Property, Probate and Trust Law Section
of The Florida Bar
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