Gottschamer v. August, Thompson, Sherr, Clark & Shafer, P.C., 82-2447
| Decision Date | 02 September 1983 |
| Docket Number | No. 82-2447,82-2447 |
| Citation | 438 So.2d 408 |
| Parties | William J. GOTTSCHAMER and Nancy Gottschamer, Appellants, v. AUGUST, THOMPSON, SHERR, CLARK & SHAFER, P.C., a Michigan corporation, Appellee. |
| Court | Florida District Court of Appeals |
Michael S. Wilson, Orlando, for appellants.
Ted B. Edwards of Akerman, Senterfitt & Eidson, Orlando, for appellee.
This is an appeal from an order determining the amount of set-off the guarantors of a promissory note and mortgage are entitled to as a result of a foreclosure sale. The trial court allowed a set-off in the amount of $186,500, the value of the property determined at a hearing, and not $195,000, the amount bid at the foreclosure sale. We reverse.
The appellee was the owner and holder of a note and mortgage in the amount of $165,000 executed by Gottschamer & Gottschamer, Inc., a Florida corporation, and guaranteed by the appellants, William J. Gottschamer and Nancy Gottschamer. After the corporation defaulted, the appellee, August, Thompson, Sherr, Clark & Shafer, P.C., a Michigan corporation, filed a foreclosure action against it and added a count in their complaint seeking damages against the appellants on the guaranty. The foreclosure action was stayed because of a suggestion of bankruptcy filed by the corporation, but the trial court entered a final summary judgment against the appellants, in the total amount of $197,671.56. After the corporation's bankruptcy action had been concluded, a final summary judgment on the foreclosure action was entered. A foreclosure sale was held, and the appellee bid the amount of $195,000 and subsequently received a certificate of title in its name.
At a subsequent hearing to determine the value of the property and the amount of the set-off to which the appellants are entitled, the court determined that the market value of the property was $186,500. An order was then entered allowing the appellee to execute on its judgment to the extent of the difference between that amount and the amount of the judgment plus accrued interest thereon.
We disagree with the appellants' contention that the appellee's election to join its claim against the appellants in the foreclosure action precluded the appellee from obtaining a judgment against the appellants until the amount of the deficiency had been determined in the foreclosure action. A suit on a promissory note or the foreclosure of a mortgage securing that note...
To continue reading
Request your trial
-
Royal Palm Corporate Ctr. Ass'n, Ltd. v. PNC Bank, NA
...v. Blair, 211 So.2d 41, 43 (Fla. 4th DCA 1968), approved, Junction Bit, 262 So.2d at 660;see also Gottschamer v. August, Thompson, Sherr, Clark & Shafer, P.C., 438 So.2d 408 (Fla. 2d DCA 1983) (an action on a note and an action to foreclose on a mortgage are not inconsistent remedies). Klon......
-
Federal Deposit Ins. Corp. v. Morley
...secured by the final judgment of foreclosure less the amount for which the property is sold. Gottschamer v. August, Thompson, Sherr, Clark & Shafer, P.C., 438 So.2d 408, 409 (Fla.Dist.Ct.App.1983) (citing Provident Nat'l Bank v. Thunderbird Assocs., 364 So.2d 790 (Fla.Dist.Ct.App.1978)). Th......
-
Photomagic Industries, Inc. v. Broward Bank
...were never in a position of jeopardy and therefore were not entitled to subrogation. See Gottschamer v. August, Thompson, Sherr, Clark & Shafer, P.C., 438 So.2d 408 (Fla. 2d DCA 1983). By paying without any legal requirement to do so, the guarantors were mere volunteers and the court theref......
-
Six, In re, 94-3569
...In the absence of satisfaction, the creditor may obtain a judgment on each count. Gottschamer v. August, Thompson, Sherr, Clark & Shafer, P.C., 438 So.2d 408, 409 (Fla.Dist.Ct.App.1983). If the debt is not satisfied by a judicial sale, the court, at the request of the creditor, is authorize......