Fara Mfg. Co. v. FIRST FEDERAL S. & L. ASS'N

366 So.2d 164 (1979)

FARA MANUFACTURING CO., INC., a Florida Corporation, et al., Appellants,
v.
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF MIAMI, a United States Corporation, Appellee.

No. 78-388.

District Court of Appeal of Florida, Third District.

January 16, 1979.

Turner, Hendrick, Guilford, Goldstein & McDonald and S. Allan Stanley, Coral Gables, for appellants.

Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.

Before PEARSON, KEHOE and SCHWARTZ, JJ.

PEARSON, Judge.

The defendants to a mortgage foreclosure on real property appeal a deficiency judgment against them. The point presented on appeal urges error because there was no evidence before the trial judge of the fair market value of the property.

The rule is clearly that the price bid, and for which realty is sold, at a mortgage foreclosure sale, although conclusive with regard to the efficacy of sale in absence of timely objection thereto, is not necessarily conclusive with regard to the value of property sold on application for a deficiency decree. Weinstein v. Park Manor Construction Company, 166 So.2d 842 (Fla.2d DCA 1964). See also Fulton v. R.K. Cooper Construction Company, 208 So.2d 863 (Fla. 3d DCA 1967), and Jonas v. Bar-Jam Corp., 170 So.2d 479 (Fla. 3d DCA 1965). There is no Florida case holding that in the absence of evidence of the fair market value that a deficiency decree may not be entered. The proper rule is that upon the introduction of the evidence of the sale price, the defendant has the burden of going forward and presenting such evidence as he shall find proper concerning the fair market value of the property. In the absence of such evidence, the trial court has the power to act upon the assumption that the sale price reflects the fair market value.

In the present instance, the defendants had full notice of plaintiffs' motion for deficiency judgment and every opportunity to proceed with such evidence as they thought proper. Inasmuch as no evidence of fair market value was introduced, other than the sale price, the deficiency judgment was properly entered.^[1]

Affirmed.

NOTES

[1] Section 45.031(7), Florida Statutes (1977), states:

"VALUE OF PROPERTY. — The amount of the bid for the property at the sale shall be conclusively presumed to be sufficient consideration for the sale. * * * If the case is one in which a deficiency judgment may be sought and application is made for a deficiency, the amount bid at the sale may be considered by the court as one of the factors in determining a deficiency under the usual equitable principles." [Emphasis Added]

55 Am.Jur.2d Mortgages § 922 says, in part:

"Where the circumstances are such that the mortgagor may defend a deficiency action on the ground that the mortgaged property was sold for less than its fair market value, he has the burden of proving that a higher price should have been obtained."