ANJ FUTURE INVESTMENTS, INC., AND MOHAMED IBRAHIM, APPELLANTS,
v.
FRANK ALTER, APPELLEE
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Florida appellate court reversed receiver appointment in foreclosure, holding that absent evidence of waste or property value insufficiency, appointment of a receiver is an abuse of discretion when less drastic remedies exist.
Appointment of a receiver in foreclosure is an abuse of discretion absent evidence that the mortgagor is wasting the property, the property value is insufficient to secure the loan, or no less drastic remedies are available.
[1] Appointment of a receiver in foreclosure is an extraordinary equitable remedy not a matter of right, requiring the trial court to balance the mortgagor's fundamental righ…
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Join FLexlaw to unlock all legal intelligence“The appointment of a receiver, as an equitable remedy; is not a matter of right even if the mortgage so provides.... [T]he trial court must balance the mortgagor's right to own and possess its property against the interests of the mortgagee in protecting its security in the property.”
Establishing the legal standard for receiver appointment in mortgage foreclosure cases.
ANJ Future Investments and Mohamed Ibrahim owned mortgaged property. Frank Alter, the mortgagee, sought appointment of a receiver in foreclosure proce…
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PER CURIAM.
ANJ Future Investments, Inc. and Mohamed Ibrahim [collectively, ANJ] seek to reverse an order appointing a receiver in foreclosure proceedings. We reverse.
“The appointment of a receiver, as an equitable remedy; is not a matter of right even if the mortgage so provides.... [T]he trial court must balance the mortgagor’s right to own and possess its property against the interests of the mortgagee in protecting its security in the property.” Seasons Partnership I v. Kraus-Anderson, Inc., 700 So. 2d 60, 61 (Fla. 2d DCA 1997); see Barnett Bank of Alachua County v. Steinberg, 632 So. 2d 233 (Fla. 1st DCA 1994)(appointment of a receiver is an extraordinary measure which must be exercised with caution as it is in derogation of the legal owner’s fundamental right to possession of his or her property).
Here, there was no showing on the record that ANJ was wasting the mortgaged property or otherwise subjecting it to serious risk of loss, or that the value of the property was insufficient to secure the mortgage loan. Where there are other less drastic methods to protect Alter’s security interest, the appointment of a receiver was an abuse of discretion. Atco Construction & Development Corp. v. Beneficial Savings Bank, F.S.B., 523 So. 2d 747 (Fla. 5th DCA 1988); Turtle Lake Assoc. Ltd. v.
Third Financial Services, Inc., 518 So. 2d 959 (Fla. 1st DCA 1988); see, e.g., Alafaya Square Ass’n, Ltd. v. Great Western Bank, 700 So. 2d 38 (Fla. 5th DCA 1997); Sazant v. Foremost Investments, N.V., 507 So. 2d 653 (Fla. 3d DCA 1987).
Accordingly, we reverse the order appointing a receiver and remand for further proceedings.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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DeSILVA v. First Cmty. Bank OF Am., 42 So. 3d 285 (Fla. 2d DCA 2010)…nk, F.S.B., 523 So. 2d 747 (Fla. 5th DCA 1988) (reversing appointment of a receiver where witness testified that she did not know the condition of the property and there was no showing of waste); see generally ANJ Future [*290] Invs., Inc. v. Alter, 756 So. 2d 153, 154 (Fla. 3d DCA 2000) (reversing appointment of receiver because party seeking receivership did not show that mortgagor was wasting the property or subjecting it to serious risk of loss). Therefore, something more than a generic possibility of inj…
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Concordia Ventures v. Slemovici (Fla. 2d DCA 2024)
Authorities Cited
- Turtle Lake Assocs., Ltd. v. Third Fin. Servs., Inc., 518 So. 2d 959 (Fla. 1st DCA 1988)
- Atco Constr. & Dev. Corp. v. Beneficial Sav. Bank, 523 So. 2d 747 (Fla. 5th DCA 1988)
- Barnett Bank OF Alachua Cnty., N.A. v. Steinberg, 632 So. 2d 233 (Fla. 1st DCA 1994)
- Alafaya Square Ass'n, Ltd. v. Great W. Bank, 700 So. 2d 38 (Fla. 5th DCA 1997)
- The Seasons P'ship I v. Kraus-Anderson, 700 So. 2d 60 (Fla. 2d DCA 1997)
- Sazant v. Foremost Invs., N.V., 507 So. 2d 653 (Fla. 3d DCA 1987)