ANGELINA E. STADLER, A WIDOW, ET AL., APPELLANTS,
v.
MIAMI BANK & TRUST COMPANY, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, AS TRUSTEE, ET AL., APPELLEES
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The Florida Supreme Court affirmed a lower court's decision in a mortgage foreclosure case, upholding the allowance of attorney's fees and a deficiency decree against a bank's receiver.
Yes, a deficiency decree can be granted against a receiver who assumed the mortgage obligations. The court found sufficient predicate for the attorney's fee award and did not find it excessive.
“We have examined the record and do not think either assignment is well supported.”
The court's initial assessment of the appellant's claims.
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Join FLexlaw to unlock all legal intelligenceAppellants appealed a final decree in a mortgage foreclosure, challenging the allowance of attorney's fees and a deficiency decree granted against the…
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This appeal is from a final decree in a mortgage foreclosure. The only errors assigned are that the court erred in the allowance of attorney’s fees and in the granting of a deficiency decree against the receiver of the Flagler Bank and Trust Company.
We have examined the record and do not think either assignment is well supported. There was sufficient predicate for the award of an attorney’s fee and there is no contention or showing that the fee allowed was excessive. As to the granting of a deficiency decree it is contended that such decrees can be granted only against the original mortgagor and that the receiver of the Flagler Bank and Trust Company against whom the deficiency decree was granted, was not the original mortgagor but merely assumed and agreed to pay the note secured by the mortgage which was foreclosed.
The record discloses that the Flagler Bank and Trust Company assumed payment of the note and mortgage brought in question and to all intents and purposes, placed' itself in the position of the original mortgagor. We. do not think the statute now in force, Chapter 11993, Acts of 1927 (Section 5751 Comp. Gen. Laws of 1927) as amended by Chapter 13625, Acts of 1929, Laws of Florida, is susceptible of the interpretation contended for by appellant and the decisions of this Court tend to the contrary view. Exchange Bank of Tampa v. Clark, Ray, Johnson Company, 95 Fla. 734, 116 So. R. 648; Letchworth v. Koon et ux., 99 Fla. 451, 127 So. R. 321.
Affirmed.
Terrell, C. J., and Ellis, and Brown, J. J., concur.
Whitfield, P. J., and Strum and Buford, J. J., concur in the opinion and judgment.
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Citator
Cited By
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Adams v. Fisher, 390 So. 2d 1248 (Fla. 1st DCA 1980)…is to determine that the trial judge did not abuse his discretion and that his decision is based on substantial competent evidence. Sunrise v. West Broward Utilities, 311 So. 2d 175 (Fla. 4th DCA 1975) reh. denied; Stadler v. Miami Bank & Trust Co., 100 Fla. 1658, 132 So. 648 (1931); Accord Tobias v. King, 84 Ill.App.3d 998, 40 Ill.Dec. 400, 406 N.E. 2d 101, 104 (1980) (case involves contingency contract). We note that the trial judge specifically stated in his order that he considered the principles in Sohn…
Authorities Cited
- Letchworth v. Koon, 99 Fla. 451 (Fla. 1930)
- Exch. Nat'l Bank of Tampa v. the Clark-Ray-Johnson Co., 95 Fla. 734 (Fla. 1928)