                 FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT


VIRGINIA HAMMOND a/k/a VIRGINIA        )
HAMMOND KHAN,                          )
                                       )
                 Appellant,            )
                                       )
v.                                     )           Case Nos. 2D13-4425
                                       )                     2D13-4522
KINGSLEY ASSET MANAGEMENT, LLC, )
a limited liability company; NABEL     )
MUHANNA, M.D., an individual; S.H.I.   )           CONSOLIDATED
HOLDINGS, LLC; KIRAN SHAILENDRA, )
an individual; RAHIM SABADIA, as       )
cotrustee of the Sabadia Family Trust; )
I.A. KHAN; PHANI R. TUMMALA;           )
MILLENIUM PARTNERS, LLC, a Georgia )
limited liability company; and KING    )
ENGINEERING ASSOCIATES, INC., a        )
Florida corporation,                   )
                                       )
                 Appellees.            )
                                       )

Opinion filed August 13, 2014.

Appeals pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Pasco County;
William H. Burgess, III, Judge.

Virginia Hammond, pro se.

Luis Martinez-Monfort, Amanda M. Uliano,
and Keith W. Meehan of Gardner Brewer
Martinez-Monfort, P.A., Tampa, for
Appellee Kingsley Asset Management,
LLC.
E.A. "Seth" Mills, Jr., and Adam Denver
Griffin of Mills Paskert Divers, P.A., Tampa,
for Appellees Millenium Partners, LLC, and
I.A. Khan.

No appearance for remaining Appellees.




DAVIS, Chief Judge.

              In these consolidated appeals, Virginia Hammond, pro se, challenges the

trial court's nonfinal orders denying her motion to dissolve a writ of garnishment entered

against her and granting the garnishee's motion to deposit funds into the registry of the

court. Because Kingsley Asset Management has not obtained a deficiency judgment in

the underlying foreclosure proceeding, we reverse.

              Kingsley brought a three-count action against Hammond and five other

named defendants. Count one of the complaint was for foreclosure of a mortgage on a

piece of commercial property in Pasco County and specifically sought a foreclosure sale

and, "if the proceeds of the sale are insufficient to Plaintiff's claim, a Deficiency

Judgment against Defendant." Count two was an action for damages on the promissory

note. And count three alleged damages stemming from the guaranty agreements the

defendants each signed.

              Following a bench trial, the trial court entered a final judgment of

foreclosure against Hammond in the amount of $13,953,990.32.1 That judgment

specifically stated that the clerk was not to set the matter for a foreclosure sale until



              1
               Based on the terms of the note, Hammond and her coinvestors were
jointly and severally liable on the mortgage debt.


                                             -2-
written application for such was made by Kingsley. On the breach of promissory note

alleged in count two, the trial court entered a separate final judgment against Hammond

in the same amount identified in the foreclosure judgment. This order specifically

stated, "[L]et execution issue." Both of these orders were entered on the same day and

in the same circuit court case number.

              Kingsley subsequently applied for a foreclosure sale, and that sale was

held May 22, 2013. Hammond's 15.75% interest in the property was sold at public

auction to Kingsley for a credit bid of $1100. Kingsley did not seek a deficiency

judgment below, and based on the record before us, none has been entered.

              At the same time that the underlying cause was progressing below,

Hammond and her ex-husband Ishtiaq Khan, who holds an interest in Kingsley, were

engaging in binding arbitration in Georgia to settle postdissolution disputes arising from

the terms of their divorce settlement. Following that arbitration, the Georgia arbitrator

directed Khan to pay Hammond the lump sum of $1,164,595.

              Subsequent to entry of that award, Kingsley filed its "Notice to Defendant

of Service of Writ of Garnishment" and a motion for writ of garnishment naming Khan as

the garnishee and seeking a response from Khan as to whether he was indebted to

Hammond. The writ of garnishment was issued the same day. Khan then filed his

answer, stating that he was indebted to Hammond in the amount of $1,164,595, and his

motion to deposit those funds into the registry of the court. The trial court granted

Khan's motion after an evidentiary hearing. Hammond then moved to dissolve the writ

of garnishment, but the trial court denied the motion after evidentiary hearing.

Hammond now challenges these two orders of the trial court.




                                           -3-
              On appeal, Hammond first argues that the trial court erred in issuing the

writ of garnishment in Kingsley's favor because Kingsley never obtained a deficiency

judgment in the foreclosure proceedings. We agree.

              Initially, we note that Kingsley is correct that it has the right to pursue both

a claim for foreclosure of the mortgage and a claim for damages on the note. "It has

long been the common law that, to collect money owed on a note, a mortgagee may

pursue its legal and equitable remedies simultaneously, until the debt is satisfied."

Royal Palm Corp. Ctr. Ass'n v. PNC Bank, NA, 89 So. 3d 923, 929 (Fla. 4th DCA 2012).

"[T]he reason that an action at law on a note may be pursued simultaneously with the

equitable remedy of foreclosure is that the two remedies are not inconsistent." Id. at

932.

              However, Kingsley cannot rely on Royal Palm to support its conclusion

that it need not obtain a deficiency judgment in the instant case. Although Royal Palm

and the instant case share some factual similarities, the posture of the Royal Palm case

is different than that presented here.

              Royal Palm is similar to the instant case in that the plaintiff filed a

multicount complaint seeking both to foreclose the mortgage and to receive damages

for breach of the note. The trial court found in favor of the plaintiff on both counts and

did not set a sale of the mortgaged property, withholding the sale pending application by

the plaintiff. On the damages count, the trial court in Royal Palm ordered the defendant

to pay the designated amount, stating "for which let execution issue." So, similar to the

instant case, the damages judgment in Royal Palm was final and collectible, but the

foreclosure judgment was not "collectible" until the plaintiff requested a foreclosure sale.




                                             -4-
It is at that point in Royal Palm that the defendant appealed, arguing that such was an

improper procedure for the trial court. Accordingly, the only questions before the Fourth

District in Royal Palm were whether the plaintiff could pursue both the equitable and

legal remedy simultaneously and whether the trial court could rule on both issues. The

Fourth District answered both those questions affirmatively because there was no

danger of double recovery.

              In the instant case, however, the final judgments for damages and

foreclosure are not before us. Rather, the issue before us is whether, now that Kingsley

has sought and obtained a foreclosure sale of the property, it can collect purely on the

money judgment without first obtaining a deficiency judgment. We conclude that it

cannot.

              This case is analogous to Century Group, Inc. v. Premier Financial

Services East, L.P., 724 So. 2d 661, 662 (Fla. 2d DCA 1999), in which "[t]he question

this court face[d] [wa]s the effect on a collection action if the party attempts to execute

on a promissory note following a foreclosure sale rather than pursue the deficiency

amount in a deficiency judgment hearing." In addressing that issue, this court stated:

                             It is axiomatic that a party can only recover
                     once on the same debt. Thus, if Premier had pursued
                     execution of the money judgment and recovered the
                     entire judgment amount, then it could not pursue
                     execution of the foreclosure judgment. If Premier
                     pursued foreclosure, and the sale amounts satisfied
                     the judgment, then Premier could not pursue its
                     judgment on the note. Complications arise, however,
                     if the proceeds resulting from the initial collection
                     method, execution on the note or foreclosure, do not
                     satisfy the entire debt. In that circumstance, a party is
                     required to pursue another method of collection to
                     obtain the entire amount of the judgment.




                                            -5-
Id. at 662 (citation omitted). This court further noted that "[a]lthough a party may pursue

both a foreclosure action and an execution on note, typically a party will follow a

foreclosure sale by initiating a deficiency hearing to obtain a deficiency judgment." Id.

This court reversed, concluding that

                     Premier is attempting to execute on the promissory
                     note to obtain the difference between the foreclosure
                     sale amount and the amount of the judgment.
                     Premier's collection efforts have the potential to result
                     in an inequity. By executing on a promissory note
                     and then setting-off the amount recovered at
                     foreclosure, Premier avoids a hearing on the amount
                     of deficiency between the foreclosure sale amount
                     and the judgment amount pursuant to section 702.06,
                     Florida Statutes.

Id.; see also Flagship Bank v. Bryan, 384 So. 2d 1323, 1324 n.3 (Fla. 5th DCA 1980)

("[T]he indebtedness can be collected only once, and any payment on any of the

judgments must be credited to the others.").

              The same is true here. To avoid the possibility of a double recovery,

before Kingsley can execute on the promissory note, the trial court must conduct a

deficiency hearing to determine the amount of set-off from the foreclosure sale.2 We

therefore reverse the trial court's order denying the motion to set aside the writ of

garnishment. Accordingly, we must also reverse the trial court's order granting the

garnishee's motion to place funds in the registry of the court pursuant to the writ of




              2
              We also note that because Hammond is jointly and severally liable here,
a deficiency hearing will allow the court to determine if Kingsley has collected on the
debt from any of the other defendants.


                                            -6-
garnishment.3 We remand with instructions to grant Hammond's motion to dissolve the

writ of garnishment and for further proceedings consistent with this opinion.

             Reversed and remanded.




KELLY and LaROSE, JJ., Concur.




             3
               Although on appeal both parties raise arguments as to whom the funds
should then be dispersed, that issue has yet to be considered by the trial court and
therefore is not before us.


                                           -7-
