First Wisconsin Nat. Bank of Milwaukee v. Donian, 76--1420
| Decision Date | 16 March 1977 |
| Docket Number | No. 76--1420,76--1420 |
| Parties | FIRST WISCONSIN NATIONAL BANK OF MILWAUKEE, Appellant, v. Armand S. DONIAN and Phyllis Donian, Appellees. |
| Court | Florida District Court of Appeals |
Garth A. Webster, Wakefield, Hewitt & Webster, Miami, for appellant.
M. W. Schryver, Schryver, Hagaman & Aaron, Naples, for appellees.
On this appeal, we are called upon to determine whether the trial court acquired in personam jurisdiction over certain defendants in a mortgage foreclosure suit where they were not served with process.
Plaintiff Bank (appellant herein) sought to foreclose a mortgage where the Donians (appellees herein) were guarnators of the underlying note obligation signed by other defendants. After it unsuccessfully attempted service on the Donians, the Bank moved for summary judgment against the other defendants. Prior to the scheduled hearing, the parties involved, including Armand Donian but not his wife, Phyllis Donian, entered into an 'Agreement for Stay of Proceedings.'
The Preambles to the agreement recited that the borrower and the Donians, as guarantors, were attempting to secure refinancing and were seeking a stay of the foreclosure action. The agreement provided for an adjustment of accrued interest, and a modification of future interest payable under the mortgage note. It also imposed a limitation on interest the Bank could obtain on any deficiency judgment. The Bank agreed to stay the foreclosure proceedings for six months with an additional three months extension under certain conditions, one of which was that if the borrower and guarantors failed to pay the principal and interest, the Bank would be entitled to a final judgment for all principal, accrued and future interest as modified, and attorneys' fees and costs. Should a deficiency arise upon foreclosure sale, the Bank agreed to give ten days notice to the attorneys of record for the borrower and guarantors of any application of a deficiency judgment. The borrower and guarantors reserved the right to dispute the Bank's claim to a deficiency judgment and to appeal the award of any such judgment.
Only Mr. Donian signed the stay agreement. However, he and his wife, in proper person, Both signed a joint motion seeking the trial court's approval of the agreement to stay of the foreclosure proceedings. On February 24, 1975, the trial judge approved the agreement and as requested, stayed all proceedings, noting the court had '. . . jurisdiction over the above parties ARMAND S. DONIAN and PHYLLIS DONIAN, who have appeared in these proceedings in proper person . . .' The order indicates that a copy thereof was furnished to the Donians.
Approximately a year later, the Bank sought a final judgment reciting in its motion that the defendants failed to abide by their obligations under the court approved stay agreement. By order, on February 23, 1976, the trial court concluded that it had jurisdiction over the subject matter and parties and awarded a final judgment of foreclosure in favor of the Bank. Jurisdiction to consider the question of a deficiency judgment was reserved by the court.
As a result of the final judgment, $1,650,620.84 became due to the plaintiff Bank. The property was bid in by the plaintiff at public sale for $1,016,000. When the Bank moved for a deficiency judgment of $634,620.84, the Donians by their counsel moved to abate the proceedings for lack of jurisdiction over their persons. The court granted that motion and on August 4, 1976, abated the action against the Donians. This interlocutory appeal by the plaintiff Bank ensued. Having concluded the court had jurisdiction over the Donians, we reverse.
Jurisdiction over defendants is ordinarily acquired by service of process on them or by their...
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