GLENN O. MORTORO, APPELLANT/CROSS-APPELLEE,
v.
JOHN L. MALONEY, ET AL., APPELLEES/CROSS-APPELLANTS
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This case involves competing claims to foreclosure surplus proceeds following a complex series of debt assignments and guarantees. The court held that Glenn Mortoro was entitled to equitable subrogation to Sun Bank's position and therefore had priority over First Florida Bank's subsequent judgment lien to the remaining foreclosure surplus.
Mortoro was entitled to equitable subrogation to Sun Bank's position and therefore had priority to the surplus proceeds. The court agreed subrogation was appropriate and rejected the argument that Mortoro was merely paying his own debt, distinguishing the case as one where Mortoro assigned an asset (the $317,000 note) to obtain release from his prior obligation.
[1] Equitable subrogation arises when one who has a liability, right, or fiduciary relationship pays a debt of another under circumstances entitling them, in equity, to the s…
[2] A guarantor's obligation is not to pay the original debt, but rather to pay the guaranteed obligation if those primarily responsible fail to do so.
Previewing 2 of 4 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“Equitable subrogation arises when one having a liability, right or fiduciary relationship pays a debt due by another under such circumstances that he is, in equity, entitled to the securities held by the creditor who has been paid.”
Establishes the legal standard for equitable subrogation applicable to this case
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1985, Mortoro obtained a $1.8 million loan from Sun Bank secured by deposit accounts to purchase a dealership interest from Maloney, Sanctuary, and…
The full statement of facts, procedural history, and disposition for this case are member content.
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HARRIS, Judge.
In 1985, Glenn 0. Mortoro, joined by his wife, executed a $1,800,000 note to Sun Bank to obtain funds to purchase a majority interest in an automobile dealership owned by John Maloney, Robert Sanctuary and Richard Cason. The note was secured by various deposit accounts.
Mortoro defaulted and the bank applied the security to the indebtedness leaving a balance of $300,000. Sun Bank agreed to release Mortoro and his wife from their remaining obligation in exchange for an assignment from the Morteros of a note due them from Maloney, Sanctuary and Cason in the amount of $317,000 secured by a second mortgage on certain property. As part of the agreement, Mortoro guaranteed payment of the note assigned to the bank and secured his guarantee with the assignment of unit shares in a limited partnership.
Maloney, Sanctuary and Cason defaulted on their note and, after calling the guarantee, the bank applied the proceeds from the unit shares in the limited partnership to their remaining obligation reducing it by $162,000. The real estate securing the Ma-loney, Sanctuary and Cason note went into foreclosure (the first mortgagee bringing the action) and after sale and after the first and second mortgages were paid, a surplus remained in the amount of $105,851.15.
The issue before us is who is entitled to these proceeds — Mortoro because of equitable subrogation or First Florida Bank because of a subsequent judgment against Maloney, Sanctuary and Cason. The trial court found that Mortoro was entitled to be equitably subrogated to Sun Bank’s position in the funds but, since the determination of Mortoro’s rights were determined after First Florida’s judgment was recorded, such right of subrogation was subordinate to First Florida’s claim.
We agree with the court that subrogation was indeed appropriate but disagree as to the priority. The surplus exists only because the Sun Bank obligation was reduced by crediting the proceeds from Mor-toro’s unit shares. Equitable subrogation arises when one having a liability, right or fiduciary relationship pays a debt due by another under such circumstances that he is, in equity, entitled to the securities held by the creditor who has been paid. Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916).
It is true, as argued by First Florida, that equitable subrogation is not available to one who simply pays his own debt. Meyer v. Levy, 169 So. 2d 339 (Fla. 3d DCA 1964). That is not present in this case. Mortoro assigned a $317,000 note (an asset) to Sun Bank to pay off and be released from any previous obligation to such bank. It is true that the bank required Mortoro to guarantee the new obligation (the $317,000 note) for such release, but that was merely the reason (consideration) for the guarantee. Mortoro was not guaranteeing the original obligation — he had been discharged from that — but rather the Malo-ney, Sanctuary and Cason note. His new obligation was therefore nothing more than that of any guarantor — to pay off the guaranteed obligation if those primarily responsible failed to do so.
Having determined that subrogation was proper, we find that Mortoro stands in place of Sun Bank and is entitled to the priority enjoyed by Sun Bank. Mortoro is entitled to the remaining funds.
REVERSED and REMANDED for further proceedings consistent with this opinion.
GRIFFIN and DIAMANTIS, JJ., concur.
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In re Forfeiture of United States Currency IN THE Amount OF Ninety-One Thousand Three Hundred Fifty-Seven & 12/100 Dollars ($91, 595 So. 2d 998 (Fla. 4th DCA 1992)…d on established principles of equity to prevent an unjust forfeiture, on the one hand, and a windfall amounting to unjust enrichment, on the other. E.g., Federal Land Bank of Columbia v. Godwin, 107 Fla. 537, 145 So. 883 (1933); Mortoro v. Maloney, 580 So. 2d 822 (Fla. 5th DCA 1991); Eastern Nat’l Bank v. Glendale Fed. Sav. & Loan Ass’n, 508 So. 2d 1323 (Fla. 3d DCA 1987). As to the other issue raised, we find no error. Therefore, the summary judgment is reversed and remanded for further proceedings on the…
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A.M. Hochstadt v. Gerl, 678 So. 2d 1310 (Fla. 4th DCA 1996)…92, respectively. It was undisputed that because neither the Gerls nor Sanctuary paid these taxes, AmeriFirst paid them to protect its lien. When AmeriFirst paid these taxes, they became subrogation rights of Ameri-First/RTC. See Mortoro v. Maloney, 580 So. 2d 822 (Fla. 5th DCA 1991). The agreement clearly provided that Hochstadt would be assigned any subrogation rights RTC had against Sanctuary or any other party and specifically that Hochstadt would be entitled to “those taxes paid by assignor during the pe…
Authorities Cited
- Boley v. Daniel, 72 Fla. 121 (Fla. 1916)
- Vitiello v. State, 169 So. 2d 339 (Fla. 3d DCA 1964)
- Baron De Hirsch Meyer v. Levy, 169 So. 2d 339 (Fla. 3d DCA 1964)