Mariner/Tampa, Ltd. v. Wells Fargo Realty Advisors Funding, Inc.

546 So. 2d 757, 14 Fla. L. Weekly 1682, 1989 Fla. App. LEXIS 3927

Opinion

PER CURIAM.

This appeal arises from a final judgment of foreclosure and a supplemental deficiency judgment pertaining to a piece of commercial property in downtown Tampa. We affirm in part and reverse in part.

The parties, by appeal and cross-appeal, have raised a number of issues. We find merit in only one and affirm the trial court otherwise.

In the supplemental proceedings seeking a deficiency judgment it was established that the hotel in question had accumulated cash and receivables in excess of $800,000 while in receivership during foreclosure litigation. These assets were awarded to the buyer at the foreclosure sale together with the property. The buyer was a wholly owned subsidiary of the plaintiff bank and received an assignment of the final judgment prior to the sale.

In the deficiency proceedings the lower court gave credit to the defendant for one-half of the accumulated cash and receivables and entered a deficiency judgment in the amount of $72,182.71. We find no competent and substantial evidence to justify giving credit for less than the entire amount of the cash and receivables.

The appellants concede that although the award of full credit could result in a surplus (as opposed to a deficiency), the sole relief they seek is the vacating of the deficiency judgment. We therefore direct the lower court to vacate the deficiency judgment and enter a judgment in favor of the appellants Mariner/Tampa, Ltd. and Mariner Management Corporation denying a deficiency. This appeal remains pending as to the appellant/cross-appellee Archie Bennett, Jr., by reason of a bankruptcy court stay order.

CAMPBELL, C.J., and LEHAN and PATTERSON, JJ., concur.