MERCANTIL BANK, N.A. v. JAVIER PAZMINO

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MERCANTIL BANK, N.A.,
Appellant,
v.
JAVIER PAZMINO and JP INDUSTRIAL PARTS, INC. d/b/a JP
FORKLIFTS,
Appellees.
No. 4D18-1168
[ January 23, 2019 ]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No. 17-17488 (08).
Victor K. Rones of the Law Offices of Victor K. Rones, P.A., North Miami
Beach, for appellant.
Daniel M. Herrera and Gary M. Singer of the Law Firm of Gary M.
Singer, P.A., Fort Lauderdale, for appellees.
PER CURIAM.
In this foreclosure-related action, Mercantil Bank, N.A., appeals the
trial court’s order dismissing with prejudice its 2017 action to reestablish
a 2011 final foreclosure judgment and granting motion for judgment on
the pleadings. We affirm, because the bank did not obtain a money
judgment in the underlying foreclosure action and, after entry of the 2011
final judgment of foreclosure determining only the amount of damages, the
bank did not initiate a deficiency proceeding since it did not sell the
foreclosed property. Thus, the trial court correctly barred the bank from
bringing an action that effectively sought to amend the relief awarded in
the 2011 foreclosure judgment, which was not a money judgment.
In March 2011, the trial court entered a final default judgment of
foreclosure and damages in favor of Mercantil Bank and against the
borrowers, Javier Pazmino and JP Industrial Parts, Inc. The court’s order
determined that the bank had suffered damages in the amount of
$97,183.85, and thus held a lien on the proceeds of any foreclosure sale
of the property. The court retained jurisdiction to enter further orders,
including deficiency judgments.
For some unexplained reason, there was no sale of the property, but in
May 2017, the bank moved for entry of an amended final judgment based
on an affidavit of non-payment for deficiency indebtedness, which appears
to have been an attempt to obtain a money judgment. The affidavit stated
that the amount due to the bank as of May 2017 was $130,342.66.
However, the trial court denied the motion for entry of an amended final
judgment.
Rather than proceeding with the prior case and challenging the court’s
denial, the bank commenced a new action in September 2017, purportedly
to reestablish the 2011 final judgment. The bank alleged that the 2011
judgment remained unpaid, and demanded a new judgment to satisfy the
original cause of action.
After filing their Answer and Affirmative Defenses, the borrowers moved
for judgment on the pleadings and argued that the bank had failed to state
a cause of action and was attempting to enforce, amend, or change a null
judgment from a prior action. The bank responded that its action was
permitted as a new suit to secure satisfaction of the 2011 judgment.
After a hearing on the borrowers’ motion, the trial court entered a final
order granting judgment on the pleadings and dismissing with prejudice
the bank’s new action.
On appeal, the bank argues that its new action was permitted under
common law and was not an attempt to amend the prior judgment. The
borrowers maintain that the bank’s new action was improper because the
bank had not obtained a money judgment in the foreclosure action and it
failed to sell the foreclosed property. We agree with the borrowers.
We review a judgment on the pleadings de novo. United Inv. & Dev.
Corp. v. Langton, 952 So. 2d 1260, 1260-61 (Fla. 4th DCA 2007).
A judgment “constitutes a cause of action upon which a new and
independent action may be based.” Crane v. Nuta, 26 So. 2d 670, 671 (Fla.
1946). “If a limitations period has almost run on a judgment, a judgment
creditor can start the limitation period anew by bringing an action on the
judgment to obtain a new judgment.” Burshan v. Nat’l Union Fire Ins. Co.
of Pittsburgh, PA, 805 So. 2d 835, 841 (Fla. 4th DCA 2001) (internal
quotation marks omitted). However, “[e]xcept as provided by Rules 1.530
and 1.540, Florida Rules of Civil Procedure, the trial court has no authority
to alter, modify or vacate an order or judgment.” Shelby Mut. Ins. Co. of
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Shelby, Ohio v. Pearson, 236 So. 2d 1, 3 (Fla. 1970).
“It is well-settled that ‘to collect money owed on a note, a mortgagee
may pursue its legal and equitable remedies simultaneously, until the debt
is satisfied.’ ” Schneider v. First Am. Bank, 252 So. 3d 264, 265 (Fla. 4th
DCA 2018) (quoting Royal Palm Corp. Ctr. Ass’n v. PNC Bank, NA, 89 So.
3d 923, 929 (Fla. 4th DCA 2012)). This allows the mortgagee to bring an
action at law on the note simultaneously with an equitable foreclosure
action, which may result in the trial court entering a final judgment of
foreclosure that allows immediate execution of the damages award. Id. at
265. However, because a mortgagee may not simultaneously execute on
the money judgment and foreclose on the property, a final judgment of
foreclosure allowing for the immediate execution of the damages award
must withhold the setting of the foreclosure sale until the mortgagee
certifies that the money judgment has not been satisfied. Id.
Here, the bank obtained only a foreclosure judgment, which limited its
remedy to one in equity. The record does not support a finding that the
bank originally sought and obtained a money judgment; the 2011 final
judgment of foreclosure did not order immediate execution of the damages
award. Accordingly, because the bank failed to obtain a money judgment
and subsequently failed to sell the property and seek a deficiency judgment
based on the foreclosure judgment it obtained, the bank was not
authorized to bring a new independent action that effectively sought to
reestablish the foreclosure judgment as a money judgment. For these
reasons, we affirm the trial court’s order dismissing with prejudice the
bank’s 2017 action to enforce or reestablish the original final judgment,
which was never converted to a money judgment, and entering judgment
on the pleadings.
Affirmed.
TAYLOR, CIKLIN and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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