Weinstein v. Park Manor Const. Co.

• Citation: 166 So.2d 842
• Decision Date: 26 August 1964
• Docket Number: No. 4162,4162
• Parties: William WEINSTEIN and Edward L. Rosenthal, Appellants, v. PARK MANOR CONSTRUCTION COMPANY, Inc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 842

166 So.2d 842

William WEINSTEIN and Edward L. Rosenthal, Appellants, v. PARK MANOR CONSTRUCTION COMPANY, Inc., et al., Appellees.

No. 4162.

District Court of Appeal of Florida, Second District.

Aug. 26, 1964.

Richard Neil Greatwood of Anderson, Rush, Dean, Lowndes & van den Berg, Orlando, for appellants.

No appearance for appellees.

WHITE, Judge.

Plaintiffs appeal an order denying their motion for a deficiency decree ¹ after foreclosure sale of certain real property. In the foreclosure decree the chancellor found that $16,583.24 was due and owing to the plaintiff mortgagees. At a regularly advertised and conducted sale on December 7, 1962, the plaintiffs submitted the highest bid and purchased the property for $14,000.00. No objections were filed and a certificate of title issued. The plaintiff purchasers on December 14, 1962 executed a warranty deed conveying the subject property to Fritz Goetz and wife in an apparently bona fide sale transaction for $14,000.00.

Pursuant to personal service of process on the defendants, the plaintiffs moved for a deficiency decree in the amount of $2,624.89 and offered inter alia the testimony of an expert witness who testified that the value of the property approximately three months after the foreclosure sale was $14,000.00. Fritz Goetz testified that he paid that same amount for the property when he and his wife purchased it from the plaintiffs, which was one week after the latter purchased it at foreclosure sale.

The defendant offered no witnesses but did adduce an affidavit in which the affiant stated that on or before the date of the sale the property was worth $26,500.00. This affidavit was received and considered over the plaintiffs' objections that (a) the affiant's qualifications to testify as to the value of the property was not shown; (b) it was not shown that the affiant made a physical inspection of the property; (c) it was not shown what factors were considered in arriving at the value estimated by the affiant; and (d) the plaintiffs were not present at the taking of the affidavit and that the affiant was not present at the hearing before the chancellor, so neither the plaintiffs nor the chacellor had the opportunity to examine the affiant as to how he arrived at his figure.

At the conclusion of the hearing the chancellor ruled that the evidence as to value was not sufficient to establish the fair market value of the property on the date of the foreclosure sale. The motion for a deficiency decree was denied and the plaintiffs appealed.

Prior to the enactment of Chapter 702, Fla.Stat., F.S.A., mortgage foreclosure sales were made by court appointed masters who reported the sales back for confirmation or rejection by the chancellor. Under the optional statutory procedure provided by said Chapter ² the sales are conducted by the clerk; and in the absence of timely objection by the defendants such sales are confirmed by operation of law after the prescribed period of time. Kurkjian v. Fish Carburetor Corporation, Fla.App.1962, 145 So.2d 523. Such was the situation here.

It has long been accepted law that the chancellor may, in the exercise of sound discretion, grant or deny a deficiency decree in a mortgage foreclosure suit. Penn Mutual Life Ins. Co. v. Moscovitz, 1935, 119 Fla. 708, 161 So. 80. This authority of the chancellor persists, though usually in a somewhat different perspective, following the enactment of Fla.Stat. § 702.02(5), F.S.A. ³ The price bid at foreclosure sale, while conclusive as to efficacy of the sale, is not necessarily conclusive of value on application for a deficiency decree. See e.g. Builders Finance Co., Inc. of St. Petersburg v. Ridewood Homesites, Inc., Fla.App.1963, 157 So.2d 551; Kurkjian v. Fish Carburetor Corporation, Fla.App.1962, 145 So.2d 523. The latter case is fairly determinative of the authority of the chancellor in this connection. In that case the First District Court of Appeal, speaking through Judge Rawls, stated:

'Plaintiff urges that the mortgage foreclosure sale held under the provisions of F.S. § 702.02, F.S.A., has become absolute by the clerk's execution of a certificate of title and that the value of the mortgage property has been conclusively established by the amount bid at the foreclosure sale and may not be questioned on plaintiffs' motion for a deficiency decree. As to the first portion of this point it may well be that the sale price, unless questioned within the time provided by law, is conclusively presumed to be adequate insofar as same is necessary to support the title of the property in the purchaser. However, we do not agree that the value of the property as established by a sale made pursuant to the statutory proceeding is so...