LAKE REGION HOTEL COMPANY, A FLORIDA CORPORATION, APPELLANT,
v.
WILLIAM A. GOLLICK, APPELLEE
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Lake Region Hotel Company appealed the trial court's order striking its mortgage foreclosure defendant's answer. The defendant alleged the mortgage was procured through fraud regarding the acreage of the orange grove securing the debt. The Florida Supreme Court reversed, holding that fraud allegations constitute a valid defense to foreclosure.
The court held that allegations of fraud in obtaining a mortgage and note constitute a good and valid defense to foreclosure, and therefore the trial court erred in striking the defendant's answer containing such allegations.
“We think the allegations of the answer constitute a good defense under the opinion and judgment of this Court in the case of Firstbrook v. Buzbee, et al., 101 Fla. 867, 132 Sou. 673, and cases there cited.”
The court's holding that fraud allegations provide a valid defense to foreclosure and should not be stricken from the answer.
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Join FLexlaw to unlock all legal intelligenceLake Region Hotel Company sought to foreclose a mortgage securing the final payment for an orange grove. The defendant mortgagor alleged the mortgagee…
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This case is before us on appeal from an order granting a motion to strike defendant’s answer.
The suit was to foreclose a mortgage given to secure the final payment of purchase price of a certain orange grove. The answer of the defendant alleged that the mortgage and note, the payment of which the mortgage was given to secure, were obtained by fraud and deception in that the mortgagee and payee procured the delivery of the note and mortgage to such payee by a false and fraudulent representation as to the acreage contained in the orange grove, part payment for which these instruments were given to secure.
It was alleged in effect in the answer that it was agreed between the mortgagor and the mortgagee that the mortgagor would buy the grove on a price basis of $1,500.00 per acre and that the mortgagee assured the purchaser and mortgagor that the grove contained 104 acres, that the grove was bounded by the meander lines of certain lakes and that it was not possible for the purchaser and mortgagor to ascertain the exact acreage contained in the grove without a survey thereof, but that the mortgagor verily believed *325the statements made by the mortgagee that the grove contained 104 acres and, so believing, purchased the grove at that price, when in truth and in fact the grove contained only 83 acres and that the mortgagee and vendor of the grove then and there well knew at.the time that such false representations were made that the same were false and untrue. That if the mortgagor and purchaser had known that the grove only contained 83 acres it would not have executed the mortgage and note, the payment of which is sought to be enforced, but would have agreed to pay only for 83 acres at $1500.00 per acre.
The note secured by the mortgage is for $25,000.00 The difference between the purchase price at $1500.00 per acre for 104 acres and the purchase price of 83 acres at $1500.00 per acre is $31,500.00, being $6,500 more than the amount of the note and mortgage. '
We think the allegations of the answer constitute a good defense under the opinion and judgment of this Court in the case of Firstbrook v. Buzbee, et al., 101 Fla. 867, 132 Sou. 673, and cases there cited.
The order appealed from should, therefore, be reversed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.
Reversed.
Whitfield, P. J., and Brown and Buford, J. J., concur.
Davis, C. J., and Ellis and Terrell; J. J., concur in the opinion and judgment.
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McGregor v. Provident Tr. Co. of Philadelphia, 119 Fla. 718 (Fla. 1935)…udicata■, there must be a concurrence of identity in thing sued for, identity of cause of action, identity -of persons and parties to the action, and identity of quality in persons for or against whom claim is made. Lake Region Hotel Co. v. Gollick, 110 Fla. 324, 149 Sou. Rep. 204; Gray v. Gray, 91 Fla. 103, 107 Sou. Rep. 261; Brundage v. O’Berry, 101 Fla. 320, 134 Sou. Rep. 520. This is in line with the second of the two rules above stated by Black; the first is commonly denoted as estoppel by matter of re…
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Smith v. W. A. Pattishall under the last will and testament of Mary O. Beeman, 129 Fla. 498 (Fla. 1937)…ata, - there must be a concurrence of identity in the thing sued for, identity of cause of action, identity of persons and parties to the action, and identity of quality in persons for or against whom claim is made. Lake Region Hotel Co. v. Gollick, 110 Fla. 324, 149 Sou. Rep. 204; Gray v. Gray, 91 Fla. 103, 107 Sou. Rep. 26; Brundage v. O’Berry, 101 Fla. 320, 134 Sou. Rep. 520. This is in line with the second of the two rules above stated by.Black; the first is commonly denoted as estoppel by matter of rec…
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Norris v. Paps, 615 So. 2d 735 (Fla. 2d DCA 1993)…is case is whether the trial court abused its discretion when it granted a severance under Florida Rule of Civil Procedure 1.270(b). It is well established that fraud can be a valid defense in a foreclosure action. Lake Region Hotel Co. v. Gollick, 110 Fla. 324, 149 So. 204 (1933) (misrepresentation of size of acreage). Fraud is also a legal action for damages that can be raised as a counterclaim. Spring v. Ronel Refining, Inc., 421 So. 2d 46 (Fla. 3d DCA1982). At least in some, if not all, cases, fraud in…
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- Firstbrook v. E. Buzbee and wife, 101 Fla. 876 (Fla. 1931)