Deficiency Judgments in Florida

A deficiency judgment is a court order holding a borrower personally liable for the gap between a secured debt and the amount recovered when the collateral is sold. Florida is a recourse state, meaning lenders can pursue borrowers for this shortfall after a mortgage foreclosure, vehicle repossession, or commercial loan default. Once the court enters a deficiency judgment, it becomes a standard money judgment enforceable for 20 years through garnishment, liens, and other Florida judgment collection remedies.

Mortgage Deficiency After Foreclosure

Florida’s mortgage foreclosure process is judicial, meaning the lender must file a lawsuit and obtain a court order before selling the property. A foreclosure sale does not automatically produce a deficiency judgment. The lender must separately request one by filing a motion and proving that the property’s fair market value on the sale date was less than the outstanding mortgage balance.

Section 702.06 of the Florida Statutes limits a deficiency on an owner-occupied residential property to the difference between the judgment amount and the property’s fair market value as of the sale date. That distinction matters because foreclosure auction prices often fall below true market value. The statute prevents lenders from accepting a lowball auction bid and then suing the homeowner for an inflated deficiency.

Florida presumes a property is owner-occupied if it carried a homestead tax exemption before the foreclosure was filed. Properties that do not qualify for this presumption—rental properties, second homes, and commercial real estate—are not subject to the fair market value cap. On those properties, the deficiency is simply the difference between the total debt and whatever the property brought at auction.

Statute of Limitations for Residential Deficiencies

A 2013 amendment to § 95.11 gives lenders one year to pursue a deficiency judgment on residential property of one to four dwelling units. The clock starts the day after the clerk of court issues the certificate of title following the foreclosure sale, or the day after the lender accepts a deed in lieu of foreclosure. Missing this deadline permanently bars the claim.

The one-year period applies only to foreclosure sales and deeds in lieu. Short sales are not mentioned in the statute. Two Florida appellate courts have held that a short sale does not trigger the one-year limitation because no certificate of title is issued and no deed in lieu is accepted.

The result is that lenders pursuing a deficiency after a short sale may have five years—the general statute of limitations for written contracts under § 95.11(2)(b)—rather than one year. Homeowners who negotiate a short sale believing the shorter deadline applies may be caught off guard by a deficiency lawsuit filed years later.

Separate Lawsuit for Deficiency

Section 702.06 gives a mortgage lender two paths to a deficiency judgment: a motion within the original foreclosure case or a separate lawsuit. The Florida Supreme Court has confirmed that a lender may file an independent action at law even when the foreclosure court reserved jurisdiction over the deficiency claim but never actually ruled on it. A homeowner who assumes the foreclosure is finished may face a separate lawsuit for the unpaid balance. The one-year deadline still applies to residential properties, but the separate-action option means the claim can land in a different court.

Vehicle Repossession Deficiencies

Vehicle repossession in Florida typically happens outside the court system. A lender can repossess a vehicle after default without a court order, provided the repossession occurs without a breach of the peace. After repossession, the lender sells the vehicle at auction and applies the proceeds to the outstanding balance. If the sale price does not cover the debt, the remaining balance is the deficiency.

Florida’s Consumer Finance Act imposes two protections for borrowers under consumer finance loans governed by Chapter 516. First, no deficiency can be pursued if the unpaid balance at the time of default was less than $2,000 under § 516.31(3). Second, the deficiency must be calculated using the vehicle’s fair market value rather than the auction price. Trade guides and published valuation sources are presumed to establish fair market value, meaning a lender cannot sell a vehicle at a wholesale auction for far less than retail value and then demand the full difference from the borrower.

Under the UCC as adopted in Florida (§ 679.626), the lender bears the burden of proving it followed all repossession and sale procedures once the borrower places compliance in issue. Defenses include inadequate notice before the sale, commercially unreasonable sale conditions, and failure to account for surplus proceeds. A lender that cannot demonstrate compliance may lose the right to a deficiency entirely or see the amount sharply reduced.

Unlike residential mortgage deficiencies, vehicle repossession deficiencies are not subject to the one-year limitation period. The general five-year statute of limitations for written contracts applies, and some courts have treated the claim as subject to other limitation periods depending on the loan structure.

Commercial Loan Deficiencies

Commercial mortgage lenders and business lenders almost always pursue deficiency judgments. A business borrower who personally guaranteed a commercial loan faces personal liability for the full shortfall between the debt and the foreclosure sale price with no fair market value cap. The general five-year statute of limitations for written contracts applies to commercial deficiency claims because the one-year residential limitation covers only properties with one to four dwelling units.

Some commercial loans are structured as non-recourse, meaning the lender’s recovery is limited to the collateral and the borrower has no personal liability. Non-recourse terms must be in the loan agreement. Even a non-recourse loan may include “bad boy” carve-outs that restore personal liability for misconduct such as fraud, environmental contamination, or voluntary bankruptcy.

Deficiency Judgments as Money Judgments

Feature	Residential Mortgage	Vehicle Repossession	Commercial Loan
Fair market value cap	Yes (owner-occupied)	Yes (consumer finance loans)	No
Minimum balance threshold	None	$2,000 (Chapter 516 loans)	None
Deficiency SOL	1 year (1–4 units)	5 years (written contract)	5 years (written contract)
Short sale SOL	5 years	N/A	5 years
Judgment duration	20 years	20 years	20 years

Once a court enters a deficiency judgment in any of these categories, it carries the same enforcement power as any other Florida money judgment. The creditor can record the judgment as a lien on all non-homestead real property the debtor owns, garnish bank accounts, and pursue wage garnishment subject to Florida’s head-of-household exemption. The judgment creditor can also initiate proceedings supplementary to reach assets held by third parties or uncover transfers.

Income Tax Consequences

A deficiency judgment does not create imputed income because the lender is still pursuing the debt rather than forgiving it. The tax problem arises when a lender forgives the deficiency or declines to pursue one. The forgiven amount is generally treated as cancellation-of-debt income reportable on IRS Form 1099-C.

The Mortgage Forgiveness Debt Relief Act of 2007 previously excluded this income for primary residences, but that relief has expired and is no longer available. An insolvency exception still exists—if the borrower’s total liabilities exceed total assets at the time the debt is cancelled, the cancellation-of-debt income is excluded to the extent of the insolvency. Borrowers who file bankruptcy are presumed insolvent and avoid imputed income entirely.

Asset Protection After a Deficiency Judgment

A deficiency judgment exposes the same categories of assets as any other civil money judgment in Florida. The debtor who lost a home to foreclosure may still protect substantial wealth through Florida’s exemption framework.

A new primary residence qualifies for homestead protection with no dollar cap on equity, provided the debtor has established Florida domicile. Head-of-household wages remain exempt from garnishment if the debtor provides more than half the support for a dependent. Retirement accounts, annuities, and life insurance cash value are fully exempt under Florida law. Property held as tenants by the entireties is protected from a deficiency judgment entered against only one spouse.

Borrowers facing a likely deficiency should evaluate their asset protection options before the judgment is entered. Florida exemptions are strongest when assets are properly titled and positioned in advance. The judgment itself lasts 20 years and can be renewed for an additional 20 years, making early planning far more effective than attempting to restructure assets after a lien attaches.