Fair Market Value is Determined by the Date Transferring Interest in the Property

Posted on February 24, 2017

In Friedman v. Mercantil Commercebank, N.A., No. 3D15-2352, 2017 WL 621228 ((Fla. 3rd DCA 2017) Richard Friedman appealed an amended final deficiency judgement entered in favor of Mercantile Commerce Bank in the amount of $264,740.56. This foreclosure action was filed against Richard Friedman and his wife Marjan Friedman concerning their property in Miami-Dade County. Pursuant to an agreement that was reached on the day of trial, Mercantile Commerce Bank agreed to accept a deed in lieu of foreclosure. Mercantile Commerce Bank reserved the right to seek a deficiency and Friedman reserved the right to assert any defenses to, or otherwise consent, any deficiency sought by Mercantile. Additionally, Mercantile agreed to bring any deficiency judgements solely against Mr. Friedman and not his wife. The Friedman’s failed to deliver the deed to Mercantile. Subsequently, the trial court entered an order on June 27, 2012 conveying the property and transferring all the Friedman’s interest in the property to Mercantile. The order was recorded by Mercantile on July 2, 2012 and thereafter Mercantile sought a deficiency judgement against Friedman. After a bench trial, the court entered the deficiency judgment, in which the court accepted the fair market valuation of Mercantile’s expert, and assessed prejudgment interest at eighteen percent.

Friedman alleged that the trial court erred in determining the proper date for assessing the fair market value of the property, in its assessment of the amount of the deficiency, and in awarding prejudgment interest of eighteen percent.

The appellate court held that the trial court properly concluded that the date for determining fair market value was July 2, 2012, which is the date of recordation of the order transferring interest in the property from the Friedman’s to Mercantile.

Friedman retained a court reporter who recorded the trial but he failed to order the trail proceedings transcribed. Friedman asserted that he was indigent and unable to pay the costs associated with the transcription. Thus, the record on appeal provided by Friedman is inadequate to allow for meaningful review of related errors allegedly made by the trial court in its determination of fair market value and the amount of the deficiency. 

The appellate court concluded that the trial court properly exercised its broad discretion in determining fair market value of the property and the deficiency. Additionally, in the final judgment, the trial court, properly awarded prejudgment interest at the rate of eighteen percent. Mercantile, in its original foreclosure complaint, sought interest at a rate of twenty-five percent. Friedman alleged this was usurious. Pursuant to the express terms of the settlement, the parties agreed that “the interest rate will be 18 percent and not 25 percent”. Mercantile sought to recover the eighteen percent pursuant to the express terms of the settlement.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

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