Katz v. Koolish
| Decision Date | 26 June 1962 |
| Docket Number | No. 62-11,62-11 |
| Citation | 142 So.2d 759 |
| Parties | Irving KATZ and Patricia Katz, his wife, Appellants, v. Theodore H. KOOLISH, Appellee. |
| Court | Florida District Court of Appeals |
H. I. Fischbach and R. M. MacArthur, Miami, for appellants.
Anderson & Nadeau, Miami, for appellee.
Before HORTON, BARKDULL and HENDRY, JJ.
Defendants take this interlocutory appeal from an adverse post decretal order assessing a deficiency judgment against them in a mortgage foreclosure proceeding. The appellee has filed cross assignments of error challenging the sufficiency of his judgment.
Appellee brought this action, pursuant to § 702.02, Fla.Stat., F.S.A., seeking to foreclose a third mortgage on the appellants' home and furnishings. The complaint contained a prayer for deficiency decree. Ultimately, a final decree of foreclosure was entered in favor of the appellee for $43,511.84. It made no mention of a deficiency decree, nor did it retain jurisdiction for the purpose of entertaining a motion for such a decree. The defendants appealed from the decree of foreclosure, posting a cash supersedeas bond of $5,000. The decree was affirmed and the chancellor entered an order assessing interest and attorneys' fees which exceeded the $5,000 cash supersedeas by $1,452. The $5,000 was withdrawn by the appellee and the $1,452 excess was added to the amount due on foreclosure. Sale was duly held at which the appellee made the high bid of $100 and purchased the property subject to the first and second mortgages. No objections to the sale were filed. The clerk's report and certificate of disbursements showed that the amount due under the final decree of foreclosure, as amended, was $50,617. 1 Within five days of the issuance of the clerk's statutory certificate of title and report of sale, the appellee moved for deficiency decree. Hearing was held on the motion at which the appellee offered no evidence, and the appellants were allowed to offer evidence as to the true value of the property. Subsequently, the chancellor entered the order appealed granting appellee a deficiency judgment for $37,000.
Appellants contend the trial court was without jurisdiction to enter a deficiency decree in this case. They base this contention on the fact that the final decree of foreclosure contained no reservation of jurisdiction for the purpose of entering a deficiency decree and on the fact that the appellee did not make his motion for deficiency decree until the time had expired for filing a petition for rehearing from the final decree or for filing objections to the sale. We find this contention to be without merit.
In Cole v. Heidt, 124 Fla. 264, 168 So. 11, the Supreme Court of Florida held:
'In Mabson v. Christ, 96 Fla. 756, 119 So. 131, 132, we held: 'If neither the final decree of foreclosure, nor the decree of confirmation, adjudicate the complainant's right to have a deficiency decree, nor contain any reservation holding the case open for that purpose, the complainant cannot, after the decrees have become absolute under the statute and rule, on motion have the case reopened and such omission supplied by the entry of a deficiency decree.'' 2
Under this rule, in the absence of a reservation holding the cause...
To continue reading
Request your trial
-
Galloway v. Musgrave
...Heidt, 124 Fla. 264, 168 So. 11; Jappe v. Heller, Fla.1953, 65 So.2d 302; Scheuermann v. Shamas, Fla.1957, 97 So.2d 314; Katz v. Koolish, Fla.App.1962, 142 So.2d 759. In the cases relied on by the appellant the decrees had not reserved jurisdiction. Where jurisdiction is sufficiently reserc......
-
Frumkes v. Mortgage Guarantee Corp.
...set aside, revoked and held for naught, and it is further 'Considered, Ordered, Adjudged and Decreed, on the authority of Katz v. Koolish, Fla.App.1962, 142 So.2d 759, that because of the delay and neglect, Plaintiff's Motion for a Deficiency Decree is hereby Plaintiff filed a petition for ......
-
Riley v. Grissett, 89-2171
...as the trial court did here, to issue Writs of Possession, enter deficiency judgments and other proper orders. See Katz v. Koolish, 142 So.2d 759 (Fla. 3d DCA 1962). ...
-
I. B. L. Corp. v. Pan Am. Bank, N. A., 80-1634
...Accordingly, that relief could be granted only upon an application filed within 10 days of the certificate of title. Katz v. Koolish, 142 So.2d 759 (Fla. 3d DCA 1962). Since the appellee's motion was filed far beyond that time, the trial court had no jurisdiction to grant it and to enter th......