Aluia v. Dyck-O'Neal, Inc.
205 So. 3d 768
| Fla. Dist. Ct. App. | 2016Background
- DONI (assignee of a foreclosure judgment) sued Micheal Aluia in Lee County, Florida for a deficiency decree following a Florida foreclosure judgment and sale. DONI alleged final judgment for $299,252.95, sale for $100, and appraised value $115,000; assignment of judgment attached.
- Aluia, a Michigan resident who signed the original note and mortgage in Michigan, moved to dismiss for improper venue under the FDCPA, asserting FDCPA §1692i requires suit in Michigan.
- The circuit court denied the motion to dismiss (no written findings provided); Aluia appealed.
- DONI invoked Florida statute §702.06 (deficiency decree) and attached the foreclosure final judgment, which reserved jurisdiction to enter deficiency judgments.
- The court considered Florida venue/long-arm principles, the nature of a deficiency action (action on a foreclosure judgment), and the FDCPA venue/debt-collector definitions.
Issues
| Issue | Plaintiff's Argument (Aluia) | Defendant's Argument (DONI) | Held |
|---|---|---|---|
| Whether FDCPA venue §1692i requires suit in Michigan | FDCPA governs because deficiency is an action "on a debt"; Aluia signed contract and resides in Michigan, so venue is Michigan | FDCPA venue does not apply because the deficiency action is on the foreclosure judgment (in rem/quasi in rem), not a consumer "debt" under FDCPA | Court held FDCPA venue inapplicable; venue in Florida proper |
| Whether Florida courts have personal jurisdiction over Aluia | Aluia argued improper venue under FDCPA; challenged Florida forum | DONI relied on foreclosure judgment, long-arm statute, and Florida venue statute permitting suit where property is located | Court held Florida long-arm and due process satisfied by prior foreclosure and property nexus; personal jurisdiction proper |
| Whether a deficiency action is an action "on a debt" (FDCPA scope) | Deficiency arises from the promissory note and is therefore a legal action on a consumer debt reduced to judgment | Deficiency is an action to enforce the final foreclosure judgment (in rem/quasi in rem); the note merged into the judgment, so FDCPA debt definition inapplicable | Court held deficiency action is on the foreclosure judgment, not a consumer debt for FDCPA purposes |
| Whether DONI is a "debt collector" under FDCPA | (Implied) DONI is a debt collector seeking collection of a deficiency owed after foreclosure | DONI argued it did not fit FDCPA definitions; Aluia failed to plead/prove DONI is a debt collector pursuing another's debt | Court noted Aluia failed to prove DONI is a debt collector; alternative basis to deny motion to dismiss |
Key Cases Cited
- Metnick & Levy, P.A. v. Seuling, 123 So. 3d 639 (Fla. 4th DCA 2013) (nonresidents may be sued in any county in the state subject to forum non conveniens)
- Dyck-O'Neal, Inc. v. Huthsing, 181 So. 3d 555 (Fla. 1st DCA 2015) (defendant reasonably should anticipate being haled into Florida courts when mortgage on Florida property is involved)
- Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989) (due process standards for personal jurisdiction)
- Hilltopper Holding Corp. v. Estate of Cutchin, 955 So. 2d 598 (Fla. 2d DCA 2007) (acts with effect in Florida satisfy due process for jurisdiction)
- Royal Palm Corp. Ctr. Ass'n, Ltd. v. PNC Bank, N.A., 89 So. 3d 923 (Fla. 4th DCA 2012) (deficiency statute and separate action on foreclosure judgment explained)
- Grand Cent. at Kennedy Condo. Ass'n, Inc. v. Space Coast Credit Union, 173 So. 3d 1089 (Fla. 2d DCA 2015) (final foreclosure judgment retains jurisdiction to enforce via deficiency judgments)
- TD Bank, N.A. v. Graubard, 172 So. 3d 550 (Fla. 1st DCA 2015) (final foreclosure judgment fixes debt amount; no further proof of debt amount required)
- Chrestensen v. Eurogest, Inc., 906 So. 2d 343 (Fla. 4th DCA 2005) (deficiency accrues only after final foreclosure judgment and sale)