AMERICAN METROPOLITAN MORTGAGE, INC., D/B/A MID-FLORIDA FINANCE COMPANY, APPELLANT,
v.
MELVA MARICONE, CENTRAL PLAZA BANK AND TRUST COMPANY, CHEMICAL BANK, ELLIS NATIONAL BANK OF CLEARWATER, ET AL., APPELLEES

Fla. 2d DCA | 1982-10-27
No. 81-1998
SCHEB and SCHOONOVER, JJ., concur.
423 So. 2d 396 Florida District Court of Appeal, Second District (1982) Positive Treatment
Cited by 1 case

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Synopsis

A woman deeded her home to a business associate who fraudulently obtained mortgage loans on the property for his own purposes. The trial court voided both mortgages, but the appellate court reversed, holding that an equitable owner who creates record title in another while retaining possession is estopped from disputing that title against innocent mortgagees lacking express actual notice.


Holding

The court held that an equitable owner who creates record title in another while retaining possession is estopped from disputing record title in the absence of express actual notice to the contrary. The trial court's judgment voiding the mortgages was reversed because the mortgagees lacked such express actual notice, and Metropolitan Mortgage's foreclosure rights were restored.


Headnotes

[1] A property owner who creates record title in another while retaining possession is estopped from disputing record title in the absence of express actual notice to the con…

[2] Possession of property serves to protect the possessor from the acts of others who do not derive their title from the possessor, not to protect the possessor against thei…

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Key Quotes

“an equitable owner who creates record title in another while retaining possession is estopped from disputing record title in the absence of express actual notice to the contrary”

Establishes the primary legal rule governing the case—equitable owners cannot challenge record titles they created without express actual notice to third parties.

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Facts & Procedural History

Melva Maricone invested in Van Kirk's business and in March 1978 deeded her home to Van Kirk to arrange loans for further investment. Van Kirk obtaine…

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Opinion of the Court
OTT, Chief Judge.

OTT, Chief Judge.

Appellee, Melva Maricone, placed considerable trust in appellee, R. Lee Van Kirk, and from time to time invested money in his business. In March, 1978, she deeded certain real property (her home) to Van Kirk to arrange loans for her further investment in Van Kirk’s business. Van Kirk obtained separate mortgage loans on the property from appellant, American Metropolitan Mortgage, Inc., d/b/a Mid-Florida Finance Company (Metropolitan Mortgage), and cross-appellant, Central Plaza Bank and Trust Company (Central Plaza). He used the proceeds of the loans for his own purposes. Subsequently when appellee discovered Van Kirk’s violation of her trust, she filed a vendor’s lien and this action.

The trial court not only voided her deed to Van Kirk, it also voided both mortgages and denied Metropolitan Mortgage’s application to foreclose its mortgage.

We reverse these latter parts of the final judgment.

The trial court voided the two mortgages on a finding that each mortgagee had notice of appellee’s interest since she continued to reside on the property when the mortgages were given. The court overlooked the decisions in Reasoner v. Fisikelli, 114 Fla. 102, 153 So. 98 (1934), and Robert v. Bass, 111 So. 2d 455 (Fla. 1st DCA 1959), which hold that an equitable owner who creates record title in another while retaining possession is estopped from disputing record title in the absence of express actual notice to the contrary.

An officer of Central Plaza drove by the property to view its condition and location. The officer saw that it was occupied but made no inquiry of the occupants. Melva Maricone contends that Central Plaza, having undertaken inspection, was on notice of all facts which an inquiry would have revealed. Since appellee created title in the mortgagor, as between the mortgagees and her, she must bear the loss. “The object of the law in holding possession implied actual notice of an adverse right is to protect the possessor from the acts of others who do not derive their title from him. It is never to protect the possessor against his own acts . . . . ” Reasoner v. Fisikelli, 153 So. at 99.

Metropolitan Mortgage assigned its mortgage to American Metropolitan Bank & Trust Company (Metropolitan Bank) and then reacquired it after appellee had recorded a notice of vendor’s lien and Metropolitan Mortgage had brought an action to foreclose the mortgage.

Appellee contends that Metropolitan is barred because it had actual knowledge of her claim when it reacquired the mortgage. This contention overlooks the facts that the mortgage was assigned as collateral security for a loan and was reassigned to facilitate foreclosure.

Furthermore, Metropolitan Mortgage had no actual knowledge of appellee’s claim when it accepted the mortgage or when it transferred the mortgage to Metropolitan Bank.

Consequently, Metropolitan Bank acquired the mortgage free and clear of appellee’s claim and, by virtue of the reassignment, Metropolitan Mortgage stands in the shoes of Metropolitan Bank. 37 Fla. Jur.2d Mortgages, § 521 (1982); 55 Am. Jur.2d Mortgages, § 1273 (1971).

Those parts of the judgment which void these mortgages and deny Metropolitan Mortgage foreclosure are REVERSED. We also VACATE that portion of the judgment assessing costs for reconsideration by the trial court in the light of this opinion.

SCHEB and SCHOONOVER, JJ., concur.


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Citator

Cited By

  • Countrywide Home Loans, Inc. v. Sotern, 46 So. 3d 618 (Fla. 2d DCA 2010)
    …t in the property by virtue of her possession of it. The trial court’s ruling was incorrect because actual notice is required under these circumstances. See Reasoner v. Fisikelli, 114 Fla. 102, 153 So. 98 (1934); Am. Metro. Mortg., Inc. v. Maricone, 423 So. 2d 396 (Fla. 2d DCA 1982); Roberts v. Bass, 111 So. 2d 455 (Fla. 1st DCA 1959). Maricone is directly on point. Maricone deeded her home to Van Kirk, in whom she placed considerable trust, in order to arrange loans to invest in Van Kirk’s business. Van Kir…

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