Case: 13-12013     Date Filed: 03/16/2015   Page: 1 of 4


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-12013
                           ________________________

                       D.C. Docket No. 8:08-cv-02083-AEP



DEVONSHIRE PARK, LLC,
a Florida limited liability company,

                                                  Plaintiff - Counter Defendant -
                                                  Appellant,

versus

FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver for First Priority Bank,

                                                  Defendant - Counter Claimant -
                                                  Cross Defendant - Appellee,

MARVIN I. KAPLAN,

                                                  Defendant - Counter Defendant -
                                                  Appellant,

BANK OF THE OZARKS
a.k.a. Horizon Bank,

                                                   Cross Claimant - Intervenor.
                Case: 13-12013       Date Filed: 03/16/2015       Page: 2 of 4


                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                      (March 16, 2015)

Before ED CARNES, Chief Judge, COX and GILMAN, * Circuit Judges.

PER CURIAM:

       This is an appeal from the district court’s entry of a $9,921,249.52

deficiency judgment against Devonshire Park, LLC (“Devonshire”), and a money

judgment against Marvin Kaplan (“Kaplan”) as guarantor of Devonshire’s debt.

       The FDIC caused the property in question to be sold at a foreclosure sale.1

The district court, in a bench trial, determined the value of the property at the time

of sale to be $1,170,000. It then entered a deficiency judgment for the difference

between the total amount owed and the value of the property (with some

adjustments for costs and other expenses).

       Devonshire and Kaplan raise two contentions on this appeal. First, they

contend that the district court erred in entering the deficiency judgment because the

FDIC failed to present competent and substantial evidence of the property’s value

at the time of sale. Second, they contend that the district court did not properly


       *
          Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
        1
          The district court determined in a prior proceeding that Devonshire had defaulted under
the relevant loan agreement. This is not before us in this appeal.
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              Case: 13-12013      Date Filed: 03/16/2015   Page: 3 of 4


consider equitable factors that would counsel in favor of reducing or eliminating

the deficiency. We affirm.

      We review the grant or denial of a deficiency judgment for abuse of

discretion. FDIC v. Morley, 

, 1523–24 (11th Cir. 1990). The parties

agree that Florida law applies.

      We have reviewed the testimony of the FDIC’s expert witness and the other

evidence in the record. We note that Devonshire and Kaplan chose not to present

contrary evidence as to the property’s value, but merely attempted to discredit the

FDIC’s evidence and argue that the FDIC had failed to meet its burden. We find

that the district court did not abuse its discretion in determining that the FDIC had

presented competent and substantial evidence of the property’s value.

      Turning to the district court’s consideration of the equitable factors,

Devonshire and Kaplan contend that the district court abused its discretion by

misinterpreting Florida law.      Specifically, they contend that the district court

impermissibly concluded that it could not consider Devonshire’s good faith as an

equitable factor.

      We disagree with Devonshire and Kaplan’s understanding of the record

below. The district court considered Devonshire’s good faith, but concluded that

the cases cited by the parties did not merit reducing or eliminating the deficiency.

(District Ct. Order, Doc. 228 at 9). Devonshire and Kaplan cite no Florida case


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where the good faith of the debtor merited reducing or eliminating a deficiency.

The district court did not abuse its discretion by failing to reduce or eliminate the

deficiency in light of Devonshire’s good faith.

      For the foregoing reasons, the district court’s judgment is affirmed.

      AFFIRMED.




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