Chapter 19-2 Jurisdiction

• Jurisdiction: Florida

19-2 Jurisdiction

19-2:1 In Personam Jurisdiction

In order for a court to have jurisdiction to enter a deficiency judgment against a note signor, the note signor must have been served pursuant to Florida Statute § 48.031 in the foreclosure action, or must have later availed themselves to the court's jurisdiction. In Florida, service on a defendant is authorized via publication in foreclosure actions.³ Publication, however, only confers in rem jurisdiction upon the court.⁴ Therefore, when service upon the note signor in the foreclosure action is conducted via publication, the foreclosure judgment obtained is an in rem judgment (against the property) simply authorizing a foreclosure sale and not a deficiency judgment.

A deficiency judgment, meanwhile, is an in personam judgment (against the person), in that it is a money judgment with recovery sought against the actual note signor. In an action for a money judgment, the court necessitates in personam judgment and therefore, personal service pursuant to Florida Statute § 48.031 upon the note signor is required.⁵

If in personam jurisdiction was obtained in the foreclosure and the final judgment retains jurisdiction for the court to enter a deficiency judgment, then the motion for deficiency is a continuance of the foreclosure proceedings.⁶ In such event, it is unnecessary to re-establish personal jurisdiction.⁷

19-2:2 Rights of Assignees

An assignee of the right to recover a mortgage foreclosure deficiency can file an action to recover a deficiency under Florida Statute § 702.06.⁸ Additionally, courts have the discretion to allow assignees to join the underlying foreclosure action to pursue the deficiency decree.⁹ The assignee stands in the shoes of the assignor and the amount paid by an assignee is legally irrelevant to the issue of whether the assignee is entitled to a deficiency judgment.¹⁰

19-2:3 Where a Claim Can Be Brought

Florida Statute § 702.06 provides the right to sue at common law to recover a deficiency, unless the court in the foreclosure action has granted or denied a claim for a deficiency judgment. In many instances, the foreclosure judgment includes a reservation of the court's jurisdiction to enter a deficiency judgment. In such an instance, the judgment holder may either seek a deficiency judgment in the existing foreclosure action or through an independent action at law for a deficiency judgment.¹¹

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Notes:

^[3] Fla. Stat. § 49.011(1).

^[4] See Zieman v. Cosio, 578 So. 2d 332 (Fla. 3d...