Carter v. Kingsley Bank

• Decision Date: 04 October 1991
• Docket Number: No. 90-3254,90-3254
• Parties: Paul F. CARTER and Holly Golightly Carter, Appellants, v. KINGSLEY BANK, a Florida corporation, Appellee. 587 So.2d 567, 16 Fla. L. Week. D2610
• Court: Florida District Court of Appeals

Page 567

587 So.2d 567

Paul F. CARTER and Holly Golightly Carter, Appellants, v. KINGSLEY BANK, a Florida corporation, Appellee.

No. 90-3254.

587 So.2d 567, 16 Fla. L. Week. D2610

District Court of Appeal of Florida,

First District.

Oct. 4, 1991.

Rehearing Denied Nov. 5, 1991.

John B. Macdonald and Robert W. Murphy of Brant, Moore, Sapp, Macdonald & Wells, P.A., Jacksonville, for appellants.

Borden R. Hallowes of Lee, Hallowes & Green, Chtd., Orange Park, for appellee.

ZEHMER, Judge.

Paul and Holly Carter appeal a deficiency judgment and an order taxing fees and costs, contending that the judgment and order are void because the trial court lacked personal jurisdiction over them. We hold that the judgment and order are void due to the trial court's lack of personal jurisdiction over the Carters, and therefore reverse and remand with directions to vacate the deficiency judgment and the order taxing fees and costs.

Kingsley Bank filed a complaint against Paul and Holly Carter ¹ alleging that they had defaulted under the terms of a promissory note and mortgage securing real property in Duval County. The complaint requested that the court direct the sale of the property to satisfy Kingsley Bank's claim and enter a deficiency judgment for any debt still remaining. Kingsley Bank was unable to personally serve the initial summons and complaint on either Paul or Holly Carter, but did publish a notice of the action in a Jacksonville newspaper. Neither Paul nor Holly Carter responded to this constructive service of process, and Kingsley Bank obtained defaults against them and a final judgment of foreclosure directing that the real property be sold. Kingsley Bank bought the property at a public sale.

Subsequently, Kingsley Bank filed a motion in the mortgage foreclosure suit requesting the court to enter a deficiency judgment against Paul and Holly Carter. Kingsley Bank had the motion for deficiency judgment and notice of hearing served on Holly Carter, but no documents were served on Paul Carter. Paul Carter did, however, receive a copy of the motion for deficiency judgment by certified mail. Paul Carter responded to the motion by writing to the attorney for Kingsley Bank and advising him of a satisfaction of mortgage he had received from Florida National Bank showing that the mortgage deed he and Holly Carter had executed to Kingsley Bank was paid in full on May 5, 1988. He enclosed with the letter a copy of the satisfaction of mortgage. Kingsley Bank proceeded with the scheduled hearing on the motion for deficiency judgment. Holly Carter attended the hearing without counsel; Paul Carter did not attend, nor was he represented at the hearing. The court entered a deficiency final judgment in favor of Kingsley Bank and against the Carters.

Kingsley Bank thereafter initiated execution proceedings upon a 40-foot sailboat that Paul Carter maintained as his sole personal residence. After the Brevard County Sheriff executed on the vessel, and while the vessel was in transit to Jacksonville, Kingsley Bank moved for an order taxing additional costs and fees, wherein it sought to recover the costs and fees arising from the execution. ² Kingsley Bank did not provide the Carters with a copy of this motion or notify them of the hearing, but nevertheless obtained from the court an order against them taxing an additional $9,835.49 in fees and costs.

Subsequently, Paul and Holly Carter filed notices of special appearance and motions to vacate the deficiency judgment and fee order on the ground that they were void for lack of personal jurisdiction. The trial court denied these motions, finding that NCNB v. Pyramid Corporation, 497 So.2d 1353 (Fla. 4th DCA 1986), and Timmers v. Harbor Federal Savings & Loan, 548 So.2d 282 (Fla. 1st DCA 1989), hold that entry of a deficiency judgment does not require that the court have personal jurisdiction over the defendants, but requires only notice and an opportunity to be heard. Paul and Holly Carter appeal the order denying their motions to vacate.

On appeal, the Carters first contend that the trial court misinterpreted the holdings of Pyramid and Timmers. We agree that neither Pyramid nor Timmers stands for the proposition declared by the court. In the first place, neither Pyramid nor Timmers directly addresses the issue of whether a trial court must have personal jurisdiction over a defendant to enter a deficiency judgment. In both of those cases, the trial court entering the deficiency judgment had obtained personal jurisdiction over the defendant by service of process. In Pyramid, while the trial court had only in rem jurisdiction at the foreclosure level of the proceeding, it acquired personal jurisdiction over the defendant prior to its entry of the deficiency judgment. ³ The question in that case was whether, since the final judgment of foreclosure was entered without personal jurisdiction over the defendant, the trial court could acquire personal jurisdiction later in the case for the purpose of entering a deficiency judgment. The fourth district answered that question in the affirmative. In Timmers, the trial court had acquired personal jurisdiction over the defendant at the foreclosure level of the proceeding, and the question was whether the plaintiff bank's filing of a motion for deficiency judgment in the same proceeding after foreclosure required a reassertion of personal jurisdiction. This court held that the motion for deficiency judgment was not a separate suit and thus...