Third District Court of Appeal
State of Florida
Opinion filed December 29, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-0162
Lower Tribunal No. 18-28238
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Enviropower Renewable Inc.,
Appellant,
vs.
William Ritger, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, William
Thomas, Judge.
Slusher & Rosenblum, P.A., and Jonathan S. Glickman, Mahra
Sarofsky, and Jeremy E. Slusher (West Palm Beach), for appellant.
Sundarsingh Law, P.L., and Mandell Sundarsingh (West Palm Beach),
for appellees.
Before LOGUE, LINDSEY, and HENDON, JJ.
LINDSEY, J.
Appellant Enviropower Renewable Inc. appeals a deficiency judgment
in favor of Appellee EPR 10, LLC. The deficiency judgment was entered
without consideration of the fair market value of two patents that served as
collateral because the trial court concluded that Enviropower had waived an
evidentiary hearing on that issue. Because we find that Enviropower did not
waive an evidentiary hearing for purposes of a deficiency judgment, we
reverse.
I. BACKGROUND
This case began as an action for fraud and conspiracy to commit fraud
brought by shareholders and investors. Most plaintiffs settled and formed
EPR for the purpose of enforcing a Settlement Agreement. Under the
Settlement Agreement, Enviropower had until November 2019 to pay EPR
$1 million plus interest. If Enviropower did not pay, EPR would be entitled
to an ex-parte judgment of $1.5 million. To secure payment and
performance, the parties executed a Security Agreement under which
Enviropower granted EPR a lien on two patents (the “Collateral”).
Enviropower defaulted, and EPR moved for a $1.5 million judgment
and to foreclose on the Collateral. The trial court ultimately entered a final
judgment of foreclosure and ordered the sale of the Collateral. EPR
published the notice of the sale in the Daily Business Review, and the
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Collateral was sold on Miami-Dade County’s foreclosure auction website.
EPR was the highest bidder and purchased the Collateral for $2,100. Before
the certificate of title was issued, Enviropower objected, arguing the sale was
not commercially reasonable as required by section 679.610, Florida
Statutes (2021). After a hearing, the trial court overruled Enviropower’s
objection and ordered issuance of the certificate of title.
After purchasing the Collateral, EPR moved for a deficiency judgment
in the amount of $1.5 million. Enviropower objected, arguing that the trial
court could only enter a deficiency judgment after conducting an evidentiary
hearing on the Collateral’s fair market value. After a hearing, the court
determined that Enviropower had expressly waived an evidentiary hearing
under the following provision in the Security Agreement:
5.3 Waivers. Debtors, to the greatest extent not prohibited by
applicable law, hereby (i) agree that they will not invoke, claim or
assert the benefit of any rule of law or statute now or hereafter in
effect (including, without limitation, any right to prior notice or
judicial hearing in connection with Secured Party’s possession,
custody or disposition of any Collateral or any appraisal,
valuation, stay, extension, moratorium or redemption law), or
take or omit to take any other action, that would or could
reasonably be expected to have the effect of delaying, impeding
or preventing the exercise of any rights and remedies in respect
of the Collateral, the absolute sale of any of the Collateral or the
possession thereof by any purchaser at any sale thereof, and
waive the benefit of all such laws and further agree that they will
not hinder, delay or impede the execution of any power granted
hereunder to Secured Party, but that they will permit the
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execution of every such power as though no such laws were in
effect . . . .
In calculating the amount of the deficiency, the court added interest,
costs, and expenses to the principle and subtracted $2,100 for the Collateral
for a grand total of $1,756,942.38. Enviropower filed a motion for rehearing,
which the court denied. This appeal followed.
II. ANALYSIS
An order granting a deficiency judgment is reviewed for abuse of
discretion, Vantium Cap., Inc. v. Hobson,
137 So. 3d 497, 499 (Fla. 3d DCA
2014), but a trial court’s contract interpretation is reviewed de novo. Ferk
Fam., LP v. Frank,
240 So. 3d 826, 835 (Fla. 3d DCA 2018).1
Article 9 of the UCC, codified in Chapter 679 of the Florida Statutes,
provides that “a secured party may sell . . . or otherwise dispose of any or all
the collateral[.]” § 679.610(1). Once a secured party sells the collateral, “the
obligor is liable for any deficiency.” § 679.608(1)(d).
1 Enviropower also challenges the commercial reasonableness of the sale.
We do not address the merits because there are no transcripts of this hearing
for our review. See Applegate v. Barnett Bank of Tallahassee,
377 So. 2d
1150, 1152 (Fla. 1979). But even where a sale is not commercially
reasonable, a secured creditor is nevertheless entitled to a deficiency
judgment in an amount of the total debt minus the fair market value of the
collateral. See, e.g., Flagship Nat. Bank v. Gray Distrib. Sys., Inc.,
485 So.
2d 1336, 1341 (Fla. 3d DCA 1986).
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A foreclosure sale is not conclusive evidence of property’s fair market
value. See Morgan v. Kelly,
642 So. 2d 1117, 1117 (Fla. 3d DCA 1994). For
this reason, a deficiency judgment generally requires an evidentiary hearing
to determine a property’s fair market value. See, e.g., Dabas v. Boston Invs.
Grp., Inc.,
231 So. 3d 542, 546 n.4 (Fla. 3d DCA 2017); Khan v. Simkins
Indus.,
687 So. 2d 16, 18 (Fla. 3d DCA 1996); Liberty Bus. Credit Corp. v.
Schaffer/Dunadry,
589 So. 2d 451, 451-52 (Fla. 2d DCA 1991); Thunderbird,
Ltd. v. Great Am. Ins.,
566 So. 2d 1296, 1298-99 (Fla. 1st DCA 1990);
Barnard v. First Nat. Bank of Okaloosa Cty.,
482 So. 2d 534, 536 (Fla. 1st
DCA 1986); Merrill v. Nuzum,
471 So. 2d 128, 129 (Fla. 3d DCA 1985).
EPR argues that Section 5.3 of the Security Agreement is an “express
waiver” of any hearing on the Collateral’s fair market value. We disagree.
While Enviropower did waive a valuation with respect to the sale of the
Collateral, no language in Section 5.3 “[c]learly and unmistakably
communicate[s]” that Enviropower also waived a valuation for purposes of a
deficiency judgment. See Express, Black’s Law Dictionary (11th ed. 2019).
To hold otherwise would potentially award EPR double recovery. See
Hammond v. Kingsley Asset Mgmt., LLC,
144 So. 3d 673, 676 (Fla. 2d DCA
2014).
III. CONCLUSION
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Enviropower did not expressly waive an evidentiary hearing on the
Collateral’s fair market value for purposes of a deficiency judgment.
Accordingly, we reverse and remand the deficiency judgment.
Reversed and remanded with instructions to hold an evidentiary
hearing.
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