John Cheng v. Dyck-O'Neal, Inc.

199 So. 3d 932, 2016 Fla. App. LEXIS 6875, 2016 WL 2348304

• Court: District Court of Appeal of Florida
• Decided: May 4, 2016
• Docket: 4D16-57
• Status: Published

Opinion

PER CURIAM.

We affirm the trial court’s order denying appellant’s Florida Rule of Civil Procedure 1.540 motion for relief from judgment. Appellant argues that the trial court lacked jurisdiction to consider appellee’s post-foreclosure action seeking a deficiency because the final foreclosure judgment in a prior case reserved jurisdiction to consider entering a deficiency judgment.

We agree with Garcia v. Dyck-O’Neal, Inc., 178 So.3d 433 (Fla. 3d DCA 2015), and Dyck-O’Neal, Inc. v. Weinberg, 190 So.3d 137 (Fla. 3d DCA 2016), that section 702.06, Florida Statutes, is unambiguous: “The complainant shall also have the right to sue at common law to recover such deficiency, unless the court in the foreclosure action has granted or denied a claim for a deficiency judgment.” The foreclosure judgment’s reservation of jurisdiction does not preclude a separate suit to recover the deficiency where the foreclosure court has not granted or denied a claim for a deficiency judgment.

Appellant presented no evidence that the foreclosure court had granted or denied any claim for a deficiency judgment. The motion to vacate was properly denied.

Affirmed.

TAYLOR, DAMOORGIAN and LEVINE, JJ., concur.