4th DCA Applies 1 Year Statute of Limitations for Deficiency Judgment
The rule in any litigation is that timing is everything. Miscalculating deadlines, and especially mis-construing application of statutes of limitation, are most certainly a recipe for disaster in any lawsuit. Counsel for creditors grapple from time-to-time with issues dealing with statute of limitations. In foreclosure actions, any foreclosure deficiency must be sought within one (1) year of the issuance of the certificate of title or acceptance of a deed in lieu applying Section 95.11(5)(h) Fla. Stat. (2018); see also, Accardi v. Regions Bank, Case No.: 4D20-0662, 45 Fla. L. Weekly D2740 (Fla. 4th DCA, December 9, 2020).
Section 95.11(5)(h) provides:
Action other than for recovery of real property shall be commenced as follows:
(5) Within one year.
(h) An action to enforce a claim of a deficiency related to a note secured by a mortgage against a residential property that is a one-family to four-family dwelling unit. The limitations period shall commence on the day after the certificate is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure.
In Accardi, a final judgment of foreclosure was entered by the trial court in favor of Regions Bank in August 2015, and affirmed on appeal in 2016. The property was then sold at auction February 21, 2017, and a certificate of title issued. Regions Bank does not file a motion for deficiency until March 12, 2019, more than two (2) years after the certificate of title was issued.
The case turned on the how Chapter 95 defines an “action”, if a motion for deficiency amounts to a “civil action or proceeding” within the meaning of Section 95.011, and whether Section 95.11(5)(h) applies.
After citing and analyzing the Florida Supreme Court decision in Salinas v. Ramsey, 234 So. 3d 569 (Fla. 2018), which affirmed the general rule that post-judgment collection efforts were not “civil action” or “proceedings” within the meaning of Section 95.011, the 4th DCA departed from the general rule holding the legislature, through the enactment of section 95.11(5)(h), clearly established a limitation period within an existing foreclosure action for any deficiency. While collection efforts themselves, such as post judgment discovery, execution, or garnishment are extensions of the main case, seeking a deficiency judgment is not.
The takeaway from this case is that one should never delay. Time is of the essence. If after the sale of the property there are not sufficient funds to satisfy the judgment a motion for deficiency should be sought immediately. Whenever in doubt seek assistance from an attorney who practices foreclosure law.