DORIS ROBERTS, APPELLANT,
v.
THOMAS HART AND PATRICIA HART, HIS WIFE, ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Doris Roberts appealed a final judgment where the trial court reformed a mortgage in favor of the Harts, cancelled Roberts' mortgage as null and void, and established a priority order among multiple lienholders. The Fourth District Court of Appeal reversed, holding that Roberts' mortgage was valid and had priority over the reformed Falcone mortgage and subsequent judgments.
Roberts' mortgage was not null and void; it had priority over the reformed Falcone mortgage and the subsequent judgments. The trial court erred in canceling Roberts' mortgage and in determining the priority order among the lienholders.
[1] A party asserting affirmative defenses in response to a complaint does not thereby file a counterclaim or cross-claim, and thus does not bear the burden of proving the ex…
[2] A recorded mortgage, note, and power of attorney are admissible as evidence without requiring the production of the original note or extrinsic authentication when present…
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because Mr. Falcone did not own the property when he executed his mortgage, that mortgage was not valid and did not affect the priority of appellant's mortgage.”
Establishes the fundamental invalidity of the Falcone mortgage, which is the basis for Roberts' superior priority.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1984, the Harts sold their house to Robert Falcone, with the deed naming Sandra Falcone as sole grantee but only Mr. Falcone as the mortgagor on th…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Reformation Of Mortgage cases and more on FLexlaw
GARRETT, Judge.
Appellant seeks review of the Final Judgment entered by the trial court in favor of appellees Thomas and Patricia Hart (Harts) on their complaint to reform and foreclose a note and mortgage. The trial court also ruled that appellant failed to prove the allegations of her “counterclaim” and cancelled her mortgage finding it to be null and void.
In 1984 the Harts sold their house to Robert Falcone (Mr. Falcone) “and or assigns.” At the closing, Mr. Falcone’s attorney designated Sandra Falcone (Mrs. Fal-cone) as the sole grantee on the deed, but only named Mr. Falcone as the promisor and mortgagor on the note and mortgage. The attorney recorded the deed from the Harts to Mrs. Falcone and the mortgage from Mr. Falcone to the Harts. In 1987 appellant Doris Roberts (Mrs. Roberts) recorded a mortgage given to her by Mrs. Falcone. Appellant’s mortgage on the property was executed by Mrs. Falcone’s agent acting under a power of attorney.
In February of 1988 appellee Orange State Bank recorded the judgment it obtained against the Falcones.
In March of 1988 appellee Ocean General Agency, Inc. (Ocean General) recorded its judgment against Mrs. Falcone.
The trial court found appellant’s mortgage null and void, reformed the purchase money mortgage and note by adding Mrs. Falcone’s name, and determined that the Harts had first priority, followed by Ocean General, then Orange State Bank.
We reverse on several grounds. First, appellant did not file a counterclaim or cross-claim. Her answer only responded to the allegations of the complaint and asserted several affirmative defenses as to Mrs. Falcone. Appellant did not seek any affirmative relief or to foreclose her mortgage. Therefore, she had no burden to prove the existence of her note in the lawsuit to foreclose appellee’s mortgage.
Second, appellant’s mortgage was not null and void. Appellant produced the mortgage, note and power of attorney as recorded in the public records. Sub judice, Mrs. Roberts was not required to produce the actual note nor to provide extrinsic evidence authenticating the documents. § 90.902(2), Fla.Stat. (1989). However, we acknowledge that she may not be able to foreclose her own mortgage without producing the original note in that case. § 90.953(1), Fla.Stat. (1989); International Center of the Americas, Inc. v. Chemical Bank, 384 So. 2d 725, 726 (Fla. 3d DCA 1980); In re Shelter Development Group, Inc. v. MMA of Georgia, Inc., 50 B.R. 588, 590-591 (Bankr.S.D.Fla.1985).
Third, the trial court erred as to the order of priority of the various lien or judgment holders. The Roberts’ mortgage has priority over the Harts’ mortgage and the Orange State Bank judgment and the Ocean General lien. Because Mr. Falcone did not own the property when he executed his mortgage, that mortgage was not valid and did not affect the priority of appellant’s mortgage. Wagner v. Roberts, 320 So. 2d 408, 410 (Fla. 2d DCA 1975).
Because the subsequent reformation of Mr. Falcone’s mortgage could not act to the detriment of appellant, an intervening party without notice, the reformation did not affect the priority of appellant's mortgage. Meadows v. Citicorp Leasing, 511 So. 2d 622 (Fla. 5th DCA 1987); Nall v. Raybon, 451 So. 2d 923 (Fla. 1st DCA 1984).
Appellant’s mortgage has priority over the reformed Falcone mortgage since the reformation took place subsequent to the recording of her mortgage. Appellant’s mortgage has priority over Orange State and Ocean General1 since the record date of her mortgage predates the recording of their judgments.
Accordingly, we reverse and remand for further proceedings consistent with this opinion.
DOWNEY and LETTS, JJ., concur. . Ocean General has conceded that appellant’s mortgage is superior to its judgment.
PER CURIAM.
We grant appellee Ocean General Agency, Inc.’s (Ocean General) motion for rehearing or clarification to the extent that our opinion is corrected to reflect that the trial judge determined that the Ocean General’s mortgage had first priority, followed by the Harts’ mortgage, then Orange State Bank’s mortgage.
. DOWNEY, LETTS and GARRETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Pastore-Borroto Dev., Inc. v. Marevista Apts., 596 So. 2d 526 (Fla. 3d DCA 1992)…Figueredo v. Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3d DCA 1989); Emerald Plaza West v. Salter, 466 So. 2d 1129 (Fla. 3d DCA 1985); see generally, Pennsylvania Blue Shield v. Wolfe, 575 So. 2d 1361, 1363 (Fla. 3d DCA 1991). Cf. Roberts v. Hart, 573 So. 2d 12 (Fla. 4th DCA 1990). The entry of the clerk’s order of default does not preclude consideration of this issue. Downing v. First Nat’l Bank of Lake City, 81 So. 2d 486, 488 (Fla.1955) (failure to produce original note “precluded entry of a valid decre…
-
Bank OF NEW York Mellon v. P2D2, LLC, 100 So. 3d 205 (Fla. 2d DCA 2012)…have a valid mortgage because the mortgage documents executed by Jorgensen did not expressly mention the leasehold interest. It is true that a mortgage executed by a mortgagor who does not own the property is not valid. See, e.g., Roberts v. Hart, 573 So. 2d 12, 13 (Fla. 4th DCA 1990). However, unlike the facts in Roberts, in this case Jorgensen owned a leasehold interest on the property. A leasehold interest is an asset which can be mortgaged by the lessee. Gould, Inc. v. Hydro-Ski Int’l Corp., 287 So. 2d…
Authorities Cited
- Wagner v. Eston E. L. Roberts and Heir of Juanita McQuarter, 320 So. 2d 408 (Fla. 2d DCA 1975)
- Meadows v. Citicorp Leasing, Inc., 511 So. 2d 622 (Fla. 5th DCA 1987)
- Int'l Ctr. OF THE Americas, Inc. v. Chem. Bank, 384 So. 2d 725 (Fla. 3d DCA 1980)
- Nall v. Raybon, 451 So. 2d 923 (Fla. 1st DCA 1984)