WILLA MAE BOYD AND ELI BOYD, JR., APPELLANTS,
v.
BANC ONE MORTGAGE CORP., APPELLEE
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PER CURIAM.
Appellant’s motion for rehearing is granted and the above cases are hereby consolidated. The opinions of this court previously issued in these cases are withdrawn and this opinion is substituted therefor. The trial court erroneously appointed a receiver without testimony, sworn pleadings or an affidavit demonstrating a show of “waste” which impairs the equity of security. Error was committed notwithstanding the provisions in the mortgage providing for 1) the appointment of a receiver in the event of default in the payment of the note secured thereby or other default in the mortgage, and 2) the assignment of rents from the secured property as additional collateral. Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241 (1930); Armour Fertilizer Works v. First Nat’l Bank of Brooksville, 87 Fla. 436, 100 So. 362 (1924); Polycoat Corp. v. City Nat’l Bank of Miami, 327 So. 2d 126 (Fla. 4th DCA 1976); Edenfield v. Crisp, 186 So. 2d 545 (Fla. 2d DCA 1966). Plus, it was error for the order appointing a receiver not to require a bond of either the plaintiff or receiver. Edenfield, supra; Belk’s Dept. Store, Miami, Inc. v. Scherman, 117 So. 2d 845 (Fla. 3d DCA 1960).
For this reason, the interlocutory order under review is reversed, the final judgment of foreclosure and all proceedings thereafter are vacated, and the cause remanded for further proceedings.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Fla. Reinvestment Corp. v. Cypress Sav. Ass'n, 509 So. 2d 1352 (Fla. 4th DCA 1987)…st as surely when a receiver takes possession as when an adverse party does, albeit the property received remains that of the owner during the receivership. Such conclusion is implicit in the recent decision in Boyd v. Banc One Mortgage Corporation, 509 So. 2d 966 (Fla. 3d DCA 1987), assuming the question of jurisdiction was considered. Appellee, Cypress Savings Association, filed a mortgage foreclosure action, on seventeen townhouse units against appellants Florida Reinvestment Corporation, its guarantors A…
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Alafaya Square Ass'n, Ltd. v. Great W. Bank, 700 So. 2d 38 (Fla. 5th DCA 1997)…ppoint a receiver would be greatly simplified if only two matters need be shown: default and a provision in the parties’ agreement stipulating to the appointment of a receiver in the case of a default. But see, e.g., Boyd v. Banc One Mortgage Corp., 509 So. 2d 966, 967 (Fla. 3d DCA 1987) (error to appoint receiver, notwithstanding parties’ agreement to do so, “without testimony, sworn pleadings or an affidavit demonstrating a show of “waste’ which impairs the equity of [the] security”). I also write further t…
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M.R.D. Props., Ltd. v. Shangri-La Resorts II, Inc., 546 So. 2d 35 (Fla. 3d DCA 1989)…ng, as required, that the party asking for the receiver will, in all likelihood, recover in the underlying mortgage foreclosure action. Colley v. First Fed. Sav. & Loan Ass’n, 516 So. 2d 344, 346 (Pla. 1st DCA 1987); Boyd v. Banc One Mortgage Corp., 509 So. 2d 966 (Fla. 3d DCA 1987); Polycoat Corp. v. City Nat’l Bank, 327 So. 2d 126 (Fla. 4th DCA 1976). Reversed.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Storey Mountain, LLC v. Freestone Enter., LLC (Fla. 1st DCA 2023)
- Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987 (Fla. 1930)
- Belk's Dep't Store v. Scherman, 117 So. 2d 845 (Fla. 3d DCA 1960)
- Young v. Lassiter, 87 Fla. 445 (Fla. 1924)
- Armour Fertilizer Works v. First Nat'l Bank of Brooksville, 87 Fla. 436 (Fla. 1924)
- Edenfield v. Crisp, 186 So. 2d 545 (Fla. 2d DCA 1966)
- Polycoat Corp. v. City Nat'l Bank OF Miami, 327 So. 2d 126 (Fla. 4th DCA 1976)