       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

    TRENDA KINNEY f/k/a TRENDA BOUTIN and PETER KINNEY,
                         Appellants,

                                     v.

        COUNTRYWIDE HOME LOANS SERVICING, L.P., et al.,
                        Appellees.

                              No. 4D13-3811

                             [April 29, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carol-Lisa Phillips, Judge; L.T. Case No. 09-814 (11).

  Alexis Fields and Kendrick Almaguer of the Ticktin Law Group, P.A.,
Deerfield Beach, for appellants.

   No appearance for appellees.

DAMOORGIAN, C.J.,

    Appellants, Trenda and Peter Kinney, appeal a final judgment of
foreclosure entered in favor of Countrywide Home Loans Servicing, L.P.
(“the Bank”) following a bench trial. They argue that the matter should
have proceeded to a jury trial, and in the alternative, that the trial court
erred in allowing the Bank to introduce the original promissory note into
evidence at trial. Finding no merit in either argument, we affirm and
write only to address Appellants’ jury trial argument.

   In 2007, Appellants obtained a mortgage loan from Southstar
Funding, LLC, and in return, executed a promissory note in Southstar’s
favor. After Appellants defaulted on their obligations under the loan, the
Bank, claiming that it now owned and held the note, filed a mortgage
foreclosure suit alleging counts for “Action on a Promissory Note,” “Action
to Foreclose Mortgage,” and “Reestablishment of Note.” In response,
Appellants filed their answer and affirmative defenses and requested “a
Trial by Jury on all issues so triable, specifically any and all issues
related to the underlying Note.” A short time later, the Bank filed the
original note and mortgage. The original note included an allonge with
an endorsement from Southstar in favor of the Bank which pre-dated the
complaint.

   Eventually, the court set the matter for a non-jury trial and
Appellants filed a “Motion to Strike Order Setting Case for Non-Jury
Trial.” Appellants never set their motion for hearing but instead raised
their jury trial argument at the beginning of trial, arguing that they were
entitled to a jury trial because the Bank was suing on the note as well as
to establish a lost note. The Bank countered that it was not proceeding
on the lost note count as it previously filed the original note and that, at
any rate, the mortgage contained a jury trial waiver. The court ruled that
Appellants were not entitled to a jury trial and proceeded. At the
conclusion of the trial, the court found that the “greater weight of the
evidence” supported the Bank’s claims and entered final judgment of
foreclosure in its favor.

   On appeal, Appellants argue that the court erred in ruling that they
were not entitled to a jury trial because the Bank’s count seeking
enforcement of the Note was based in law, not equity. Although the
mortgage signed by Appellants contains a jury-trial waiver on any actions
based on the note or mortgage, Appellants maintain that the Bank is not
able to enforce it as it was not the original lender. We reject both of
Appellants’ arguments.

   By statute, “[a]ll mortgages shall be foreclosed in equity” and
“foreclosure claim[s] shall, if tried, be tried to the court without a jury.” §
702.01, Fla. Stat. (2012). On the other hand, actions on promissory
notes are actions at law and carry with them the right to a jury trial upon
proper demand. Cheek v. McGowan Elec. Supply Co., 404 So. 2d 834,
836 (Fla. 1st DCA 1981). These two principles beg the question: what
happens when a lender sues simultaneously on a mortgage and note?

   Generally speaking, the law suggests that the defendant, if it so
demanded, would be entitled to a jury trial on the lender’s legal count.
For example, in Padgett v. First Federal Savings & Loan Association of
Santa Rosa County, 378 So. 2d 58, 64 (Fla. 1st DCA 1979), the First
District considered “the perplexing problem presented by cases . . . when
there are both equitable (nonjury) and legal (jury) claims made in the
same proceeding.”1 The court held:

   1
       Padgett involved a lawsuit by a borrower against the bank for an
injunction to prevent the bank from enforcing the mortgages, damages for lost
profits, and removal of cloud on title. Id. at 60. The bank counterclaimed
seeking to foreclose its mortgages, and the court proceeded on the mortgage

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      the mixture of the two kinds of claims in the same case,
      regardless of the parties by whom or the sequence in which they
      are raised by their respective pleadings, cannot deprive either of
      the parties of a right to a jury trial of issue traditionally triable
      by jury as a matter of right.

Id.

    However, as applied to the situation where a lender brings both a
foreclosure and promissory note action against a mortgagor, the law is
different. This is because, to some extent, a lender’s equitable and legal
remedies overlap: a lender can recover only up to the amount owed by
the borrower whether that is accomplished through a sale of the
mortgaged property, a judgment, or some combination of the two. See
Royal Palm Corporate Ctr. Ass’n, Ltd. v. PNC Bank, N.A., 89 So. 3d 923,
929 (Fla. 4th DCA 2012). For this reason, when a lender has sued to
foreclose a mortgage, its legal remedy on a promissory note is a
deficiency judgment — a judgment “for the balance of the indebtedness
after applying the proceeds of a sale of the mortgaged property to such
indebtedness.” Commercial Bank of Ocala v. First Nat. Bank, 87 So. 315,
316 (Fla. 1920). Foreclosure (a.k.a. equity) courts are explicitly granted
the authority to enter the legal remedy of a deficiency judgment by virtue
of section 702.06 which provides, in pertinent part, that “[i]n all suits for
the foreclosure of mortgages heretofore or hereafter executed the entry of
a deficiency decree for any portion of a deficiency, should one exist, shall
be within the sound judicial discretion of the court.” § 702.06, Fla. Stat.
(2012). The legislature’s purpose in granting this power to the equity
court was to “‘relieve the parties from the expense and vexation of two
suits, one equitable and one legal,’ and to allow ‘the whole controversy
[to] be adjusted in one suit.’” Royal Palm, 89 So. 3d at 932 (quoting
Edwards v. Meyer, 130 So. 57, 59 (Fla. 1930)) (alterations in original).

   Considering the above principles in the context of a party’s right to a
jury trial, the First District has determined that a defendant in a
foreclosure action does not have “a constitutional right to a jury trial in a
chancery foreclosure action when a deficiency has resulted from the
foreclosure sale of the property.” Bradberry v. Atl. Bank of St. Augustine,
336 So. 2d 1248, 1250 (Fla. 1st DCA 1976). In arriving at its conclusion,
the court reasoned that a lender’s legal claim for a deficiency “has
consistently been tried as a continuation of the foreclosure suit under
[the Florida Constitution].” Id. at 1249.     It found further support in

foreclosure claim, not allowing the borrowers to sever their claims for a jury
trial. Id. at 61−62.

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section 702.01, which the court pointed out “[d]oes not provide that the
determination of the deficiency shall be within the sound discretion [o]f a
jury [but] provides that it shall be within the sound judicial discretion of
[t]he court.” Id. at 1250. But see Hobbs v. Fla. First Nat’l Bank of
Jacksonville, 480 So. 2d 153, 156 (Fla. 1st DCA 1985) (factually
distinguishing Bradberry and holding that an endorser of a note being
sued by a bank for a deficiency judgment was entitled to a jury trial even
though the bank was also suing the owners/mortgagors in foreclosure
because the endorsers were not parties to the mortgage).

  Accordingly, as the Bank’s promissory note count against Appellants
was brought in conjunction with its mortgage foreclosure suit, Appellants
were not entitled to a jury trial.

    Additionally, even if the law supported Appellants’ position,
Appellants still have the jury trial waiver to contend with. Paragraph 22
of the Mortgage states as follows:

   Jury Trial Waiver: The Borrower hereby waives any right to a
   trial by jury in any action, proceeding, claim, or counterclaim,
   whether in contract or tort, at law or in equity, arising out of or
   in any way related to this Security Instrument or the Note.

Appellants do not contest the validity or scope of the waiver, but rather
argue that the Bank was not entitled to enforce it as it was not a party to
the original contract. Appellants’ argument is without merit as the Bank
was the holder of the note and mortgage by virtue of an endorsement.
See Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932, 934 (Fla. 4th DCA
2010) (holding that bank’s submission of “the original note with a blank
endorsement . . . supported its claim that it was the proper holder of the
note and mortgage.”).

   Affirmed.

TAYLOR and MAY, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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