LISA LOUISE BARTOLUCCI, PETITIONER,
v.
BARBARA ANN BARTOLUCCI MCKAY, RESPONDENT
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A Florida appellate court quashed a trial court order that required a co-owner of property to execute a mortgage and promissory note to refinance an existing defaulted mortgage. The court held that a trial court lacks legal authority to compel a joint property owner to execute mortgage documents, regardless of the owner's motives for refusal.
A trial court has no legal authority to order a joint property owner to execute a note and mortgage to obtain funds to pay off a defaulted mortgage, regardless of the owner's motives for refusal or the court's motives for issuing the order.
[1] A trial court lacks the legal authority to compel a co-owner of property to execute a note and mortgage to refinance an existing defaulted mortgage.
[2] An order requiring a party to execute a note and mortgage, when not supported by the pleadings and relief sought, is void and departs from the essential requirements of l…
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Join FLexlaw to unlock all legal intelligence“a trial court has no legal authority to order a recalcitrant joint property owner to execute a note and mortgage to obtain funds to pay off an existing defaulted mortgage in order to avoid a foreclosure sale”
States the core holding that trial courts lack jurisdiction to compel execution of mortgage documents by joint owners
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Join FLexlaw to unlock all legal intelligenceRespondent (mother) and petitioner (daughter) are joint owners of an apartment building. Respondent has managed the property while petitioner brought …
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COWART, Judge.
This is a petition for certiorari to review an order requiring the petitioner, as co-owner of certain property, to execute a note and mortgage.
Respondent and petitioner are mother and daughter and joint owners of an apartment building. Respondent has managed the apartment building and petitioner has brought against respondent an action for an accounting as to the receipts from the apartments and in that action respondent has counter-claimed for a partition of the property. The apartments are subject to a first mortgage which is in the process of foreclosure. Respondent has arranged a new financing mortgage loan from the proceeds of which respondent desires to pay off the delinquent first mortgage in order to avoid a foreclosure sale. Of course, as one of the joint owners, petitioner’s signature is essential to create a valid refinancing mortgage and petitioner declines to sign. By an order styled in both the pending mortgage foreclosure action and the pending account/ ing and partition action the trial judge ordered both parties to “execute a mortgage deed and promissory note and other documents necessary to close a commercial loan on the property in an amount at least sufficient to satisfy the existing first mortgage on the property, and to pay loan closing costs.” Petitioner seeks review of that order. Without regard to the alleged bad motives of the petitioner in refusing to sign the proposed mortgage or the good motives of the trial judge, a trial court has no legal authority to order a recalcitrant joint property owner to execute a note and mortgage to obtain funds to pay off an existing defaulted mortgage in order to avoid a foreclosure sale. The order in question is beyond the jurisdiction of the trial court as invoked1 by the facts alleged and relief sought in the pleadings in either of the pending cases. Consequently it is void, and therefore, its entry departs from the essential requirements of law. Accordingly, it is
QUASHED.
ORFINGER, C.J., and DAUKSCH, J., concur. . For a discussion of court jurisdiction and its invocation by pleadings and its perfection by service of process, see Florida Power & Light Co. v. Canal Auth. of Florida, 423 So. 2d 421 (Fla. 5th DCA 1982).
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Amado Evarito Garcia v. Stewart, 906 So. 2d 1117 (Fla. 4th DCA 2005)…to the funds. The trial court was therefore without jurisdiction to disburse the funds so that its order disbursing the funds was void. See Lovett, 112 So. at 776; Defreitas v. Defreitas, 398 So. 2d 991, 992 (Fla. 4th DCA 1981); Bartolucci v. McKay, 428 So. 2d 378, 379 (Fla. 5th DCA 1983). A void final order or judgment may be attacked under rule 1.540(b). Because the March 26, 2003 order was void, we reverse the April 8, 2004 order denying the motion to set aside that order. On remand, the circuit court sha…
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In re The Est. of Helena Hatcher v. Dodd, 439 So. 2d 977 (Fla. 3d DCA 1983)…nd Light Co. v. Canal Authority, 423 So. 2d 421, 424 (Fla. 5th DCA 1982). Florida law clearly holds that a trial court lacks jurisdiction to hear and to determine matters which are not the subject of proper pleading2 and notice. Bartolucci v. McKay, 428 So. 2d 378 (Fla. 5th DCA 1983); Fine v. Fine, 400 So. 2d 1254 (Fla. 5th DCA 1981); Defreitas v. Defreitas, 398 So. 2d 991 (Fla. 4th DCA 1981). In short: If a court should render a judgment in a case where it had jurisdiction of the parties, upon a matter enti…
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Dep't OF Env't Reg. v. Montco Research Prods., Inc., 489 So. 2d 771 (Fla. 5th DCA 1986)…d authorization for the expenditure of trust funds for the performance of the pollution assessment. The trial court lacks jurisdiction to determine matters which are not the subject of appropriate pleadings and notice. See e.g. Bartolucci v. McKay, 428 So. 2d 378 (Fla. 5th DCA 1983); Florida Power and Light Company v. Canal Authority of the State of Florida, 423 So. 2d 421 (Fla. 5th DCA 1982). Therefore, a determination by the trial court on an issue which is neither raised by the pleadings or on which the p…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Royal Frozen Fish Co., Inc. v. Amer Seafoods, Inc., 423 So. 2d 421 (Fla. 3d DCA 1982)
- Fla. Power & Light Co. v. The Canal Auth. OF the State OF Fla., 423 So. 2d 421 (Fla. 5th DCA 1982)