Back Bay at Carillon LLC and Echelon Development LLC (collectively “Appellants”) appeal the final deficiency judgment entered against them after Bank of America foreclosed on a construction loan and then assigned the foreclosure judgment to Quality Properties Asset Management Company. Quality Properties has conceded that the deficiency judgment fails to account for $181,671.11 in proceeds that Quality Properties””through Bank of America””received from the court-appointed receiver. In addition, the record shows that the deficiency judgment fails to account for the value of certain tangible personal property that Appellants turned over to the receiver. Hence, we reverse the deficiency judgment and remand for the trial court to enter a corrected judgment that accounts for Quality Properties’ receipt of these assets. In all other respects, we affirm.
Appellants borrowed substantial sums of money from Bank of America to
finance the construction of a luxury townhome community in St. Petersburg. When the
housing bubble burst, Appellants ceased making payments on their loans. After a
negotiated forbearance failed, Bank of America filed a foreclosure complaint, and a
receiver was appointed by the court to manage the property. The receiver’s initial
inventory reflected that Appellants had turned over certain tangible personal property,
including equipment and furnishings in the clubhouse as well as in the three model
townhomes. In addition, during the course of the foreclosure proceedings, the receiver
collected rents from the existing tenants; paid for maintenance, repairs, taxes, and
general upkeep of the property; and paid the balance of the collected funds””
approximately $400,000″”to Bank of America.
In November 2009, the trial court entered a consent foreclosure judgment
in the amount of $30,885,991.59. Bank of America assigned the foreclosure judgment
to Quality Properties, its wholly-owned subsidiary, and after the foreclosure sale Quality
Properties filed a motion seeking a deficiency judgment. The trial court held an
evidentiary hearing on the motion and ultimately entered a deficiency judgment against
Appellants in the amount of $17,485,991.59.
In this appeal, Appellants have raised numerous issues relating to the
amount of the deficiency judgment. However, we find merit only in the argument that
the trial court erred by not accounting for certain payments and property that Quality
Properties received prior to the entry of the deficiency judgment. Therefore, we reverse
and remand for limited adjustments to the amount awarded.
Cash on Hand Appellants first argue that the evidence before the trial court showed that
Quality Properties received $181,671.11 in proceeds from the receiver after the
foreclosure judgment was entered, that these proceeds were not accounted for in the
foreclosure judgment (nor could they have been since they post-dated that judgment),
and that these proceeds should have been accounted for when the trial court
determined the amount of the deficiency judgment but were not. Quality Properties
concedes that the deficiency judgment is overstated by the amount of these proceeds,
and the record supports this concession. We therefore reverse the deficiency judgment
due to this error. On remand, the trial court shall reduce the deficiency judgment by
$181,671.11 to account for Quality Properties’ receipt of these proceeds.
Tangible Personal Property
Appellants also argue that the deficiency judgment fails to account for the
value of certain tangible personal property that they turned over to the receiver when
the foreclosure complaint was first filed. At the deficiency hearing, Appellants’ corporate
representative testified that the value of this tangible personal property was $100,000.
Quality Properties does not dispute that it received this tangible personal property, nor
does it dispute that the value of the property was not accounted for in the deficiency
judgment. Instead, it argues only that the testimony from Appellants’ corporate
representative concerning the value of that property was incompetent. However, the
record shows that the corporate representative was qualified to testify as to the value of
the property. See Witchell v. Londono, 707 So. 2d 796, 799 n.2 (Fla. 1st DCA 1998)
(noting that as a general rule “an officer of a corporation is qualified to testify regarding
value if he has experience in the management of the affairs of the corporation and has a
knowledge of relevant values”). Moreover, Quality Properties neither impeached the
corporate representative’s testimony nor offered any competing evidence to establish a
different value for the tangible personal property it admits it received. Under these
circumstances, we must agree with Appellants that the deficiency judgment is
overstated by the undisputed value of the tangible personal property. Hence, on
remand, the trial court shall reduce the deficiency judgment by $100,000 to account for
the value of the tangible personal property Quality Properties received.
In sum, we reverse the deficiency judgment and remand for the trial court
to credit Appellants for the $181,671.11 in cash and $100,000 in tangible personal
property that Quality Properties received but which was not accounted for during the
foreclosure or deficiency judgment proceedings. In all other respects, the final
deficiency judgment is affirmed.