CABOT, CABOT & FORBES LAND TRUST, A MASSACHUSETTS BUSINESS TRUST, APPELLANT,
v.
FIRST NATIONAL BANK OF FORT WALTON BEACH, FORT WALTON BEACH, FLORIDA, APPELLEE
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Cabot & Forbes Land Trust appeals a foreclosure judgment on an open-end mortgage securing three promissory notes. The court affirms the foreclosure, holding that subsequent notes not explicitly referencing the mortgage can still be secured by an open-end mortgage provision if the parties intended such security.
Subsequent notes can be secured by an open-end mortgage provision even without explicit reference to the security, provided the parties intended such security. The trial court's finding of intent was supported by substantial evidence, as the notes related to the same transaction and the parties agreed to rely on the open-end feature.
[1] An open-end mortgage may secure future advances even if subsequent notes do not explicitly reference the mortgage.
[2] The intention of the parties is the controlling factor in determining whether subsequent notes are secured by an open-end mortgage.
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Join FLexlaw to unlock all legal intelligence“The intention of the parties is the key factor to be considered in determining whether or not subsequent notes are secured by an open-end mortgage.”
Establishes the governing legal standard for determining whether subsequent notes are covered by open-end mortgage provisions.
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Join FLexlaw to unlock all legal intelligenceFirst National Bank of Fort Walton Beach obtained a mortgage from Evans & Mitchell, Inc. (E&M) for $150,000 to purchase property for the Sandestin Dev…
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McCORD, Chief Judge.
This is an appeal from a final judgment of foreclosure entered in favor of appellee, plaintiff below. We affirm.
This suit was brought by appellee Bank to foreclose a real estate mortgage as security for a note executed with the mortgage and two additional subsequently executed notes. The mortgage is the type known as an open-end mortgage authorized by § 697.-04, Florida Statutes. The mortgage contains the following future advance or open-end provision:
“And the Mortgagor further agrees as part of the consideration of this mortgage, and that this mortgage shall also secure (in an amount not exceeding in the aggregate at any time $258,400 DOLLARS,) such further sum as the Mortgagor may hereafter and before the foreclosure of this mortgage, owe or be due to the said Mortgagee, its successors, heirs, or assigns; . . . .’’
The original note for the principal amount of $150,000 was executed by appellant’s predecessor in interest, Evans & Mitchell, Inc. (hereinafter referred to as E & M), for the purchase of property for a project called the Sandestin Development. Subsequently, in 1973, E & M borrowed $44,000 from the Bank executing one of the Bank’s open note forms. The proceeds of that note were used by E & M to purchase a condominium for E & M’s resident manager. In 1974, E & M executed a third note to the Bank on the same type form for an open line of credit of $100,000 to provide interim funding for the Sandestin development. Neither of the two subsequent notes made reference to the previous mortgage. Appellee Bank’s president testified, however, that he and E & M’s treasurer agreed to rely on the open-end feature of the mortgage to secure the two additional loans.
The Sandestin venture failed, and E & M declared bankruptcy. The referee in bankruptcy entered an order abandoning the property to appellant, and appellee Bank then brought this foreclosure action alleging that all three notes were secured by the original mortgage because of the open-end provision. Upon final hearing, the trial court entered final judgment of foreclosure on all three notes in the amount of $218,744.49 plus interest, attorneys fees and court costs — all totaling $311,165.79. Appellant contends that since the two subsequent notes contained no reference to any security, they are not subject to the open-end provision contained in the mortgage. We disagree. The above-mentioned statute governing open-end mortgages (§ 697.04, Fla.Stat.) contains no requirement that sub sequent notes make reference to the security of the mortgage. The intention of the parties is the key factor to be considered in determining whether or not subsequent notes are secured by an open-end mortgage. Compare Boyette v. Carden, 347 So. 2d 759 (Fla. 1st DCA 1977). There was competent substantial evidence before the trial court to support its conclusion that the parties intended the two subsequent notes to be secured by the mortgage. They related to the same transaction as the original note and mortgage. As recognized in Industrial Supply Corp. v. Bricker, 306 So. 2d 133 (Fla. 2nd DCA 1975):
“The obligation secured by a mortgage for future advances is the single binding promise of the mortgagor made at the outset of the transaction to repay all advances within the scope of the agreement which are actually made then and at a later time.” (Emphasis supplied).
We have considered appellant’s remaining point and find it to be without merit.
AFFIRMED.
ERVIN and MELVIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gardner v. Guldi, 724 So. 2d 186 (Fla. 5th DCA 1999)…ember 1990 mortgage. The intention of the parties is the key factor to be considered in determining whether or not subsequent notes are secured by an open ended mortgage. Cabot, Cabot & Forbes Land Trust v. First National Bank of Fort Walton Beach, 369 So. 2d 89 (Fla. 1st DCA 1979). The question of the parties’ intentions is not fully settled when the mortgage recites that future advances may also be secured as it does in the instant case. A second question of intention arises with re-, gard to whether a su…
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Sonia Uransky in Bankruptcy of Dean Barnard v. First Fed. Sav. & Loan Ass'n OF Fort Myers, 684 F.2d 750 (11th Cir. 1982)…age secures the future advance note, notwith [*756] standing the fact that the two debts are not of the same kind or class. We are guided in our analysis of this issue by Cabot, Cabot & Forbes Land Trust v. First National Bank of Fort Walton Beach, 369 So. 2d 89 (Fla.Dist.Ct.App.1979). In Cabot, the court was presented with the issue of whether an advance was secured by a previous open-ended mortgage, i.e., a mortgage containing a clause securing future advances and other debts, between the parties. The two…
Authorities Cited
- Boyette v. Carden, 347 So. 2d 759 (Fla. 1st DCA 1977)
- Indus. Supply Corp. & Fennell & Assocs., Inc. v. Bricker, 306 So. 2d 133 (Fla. 2d DCA 1975)