Frank v. Levine, 159 So. 2d 665 (Fla. 3d DCA 1964). · Go Syfert
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Frank v. Levine, 159 So. 2d 665 (Fla. 3d DCA 1964). Cases Citing This Book View Copy Cite
12 citation events (1 in the last 25 years) across 3 distinct courts.
Strongest positive: Romagnoli v. Sr Acquisitions – Florida City, LLC (fladistctapp, 2017-01-25)
Top citers, strongest first. 5 distinct citers.
discussed Cited as authority (rule) Romagnoli v. Sr Acquisitions – Florida City, LLC
Fla. Dist. Ct. App. · 2017 · confidence medium
Guarantee Corp., 173 So.2d 738, 741 (Fla. 3d DCA 1965) (“equitable considerations which could have been urged in opposition to a proper and timely application for deficiency decree in a foreclosure suit, may be asserted with similar purpose and effect in a law action for deficiency”); Frank v. Levine, 159 So.2d 665, 666 (Fla. 3d DCA 1964) (“there would appear to be no reason why equitable considerations sufficient to limit a deficiency award in equity should not serve equally when pleaded and proved in an action at law to recover a mortgage foreclosure sale deficiency5’).
discussed Cited as authority (rule) PMI Mortgage Insurance v. Cavendar
Fla. Dist. Ct. App. · 1993 · confidence medium
Id. at 666 (footnote and citation omitted); accord Frumkes v. Mortgage Guarantee Corp., 173 So.2d 738, 741 (Fla. 3d DCA1965) (“equitable considerations which could have been urged in opposition to a proper and timely application for deficiency decree in a foreclosure suit, may be asserted with similar purpose and effect in a law action for deficiency.”).
cited Cited "see" Ferrell v. Inter-County Title Guaranty & Mortgage Co.
Fla. Dist. Ct. App. · 1970 · signal: see · confidence high
See Rule 1.110(g), Florida Rules of Civil Procedure, 30 F.S.A., and Frank v. Levine, Fla.App.1964, 159 So.2d 665 .
cited Cited "see, e.g." United States v. Wells
5th Cir. · 1968 · signal: see also · confidence low
See also Frank v. Levine, Fla. App., 1964, 159 So.2d 665 .
cited Cited "see, e.g." ca5 1968
5th Cir. · 1968 · signal: see also · confidence low
See also Frank v. Levine, Fla. App., 1964, 159 So.2d 665 . 9 The appeals of the United States, which we have consolidated for opinion purposes, are based on two contentions.
Robert R. FRANK, Appellant,
v.
Hy LEVINE, Lewis Marrow and Dana Marrow, his wife, Appellees.
63-390.
District Court of Appeal of Florida, Third District.
Jan 21, 1964.
159 So. 2d 665
Carroll, Horton and Hendry.
Cited by 10 opinions  |  Published

[*666] Frank & Strelkow, Miami Beach, for appellant.

Dorothea M.B. Vermorel, Hollywood, for appellees.

Before CARROLL, HORTON and HENDRY, JJ.

PER CURIAM.

Plaintiff appeals from an order dismissing his complaint. The action was at law for a deficiency following a foreclosure of mortgage. Defendants moved to dismiss on three grounds, (1) that the court lacked jurisdiction of the subject matter, (2) that the "cause of action is res judicata" and (3) that plaintiff had waived his action and was estopped to bring an action at law.

The question presented is whether the complaint stated a cause of action. We hold that it did, and that it was error to dismiss the cause. The contention of want of jurisdiction was without merit. A right of action at law for a deficiency resulting from a mortgage foreclosure sale is expressly conferred by statute. § 702.06, Fla. Stat., F.S.A. Exceptional circumstances which could preclude the action if they existed were not disclosed on the complaint. Res judicata, waiver and estoppel are affirmative defenses. Those defenses and any others available under the facts of the case including equitable defenses should be pleaded in answer to the complaint. Hough v. Menses, Fla. 1957, 95 So.2d 410, 412; Stone v. Stone, Fla.App. 1957, 97 So.2d 352; Nunez v. Alford, Fla.App. 1960, 117 So.2d 208. Cf. Belle Mead Development Corporation v. Reed, 114 Fla. 300, 153 So. 843.

In dismissing the complaint at law for a mortgage foreclosure deficiency, notwithstanding statutory authority for such actions at law, the trial judge may have been motivated by an assumption that equitable considerations which could limit recovery of a deficiency when sought in equity in a foreclosure suit,[1] were not available as equitable defenses or partial defenses in a law action for such a deficiency. However, equitable defenses may be pleaded in law actions (rule 1.8(g), Fla. R.C.P., 30 F.S.A.), and there would appear to be no reason why equitable considerations sufficient to limit a deficiency award in equity should not serve equally when pleaded and proved in an action at law to recover a mortgage foreclosure sale deficiency.

Accordingly the order of dismissal is reversed and the cause remanded for further proceedings.

Reversed and remanded.

1 Taylor v. Prine, 101 Fla. 967, 132 So. 464; Carlson v. Becker, Fla. 1950, 45 So.2d 116; Houk v. Weiner, Fla. 1951, 53 So.2d 304; Scheneman v. Barnett, Fla. 1951, 53 So.2d 641; Kissling v. McCarthy, Fla.App. 1958, 100 So.2d 434; Kennedy v. Kay, Fla.App. 1963, 154 So.2d 345; Galloway v. Musgrave, Fla.App. 1963, 154 So.2d 846, 851; 16 U.Miami L.Rev. 745, 749 (1962).