SYDNEY E. COON AND NORMA S. COON, HIS WIFE, AND SYD-NOR, INC., APPELLANTS,
v.
L. PHARR ABNER, TRUSTEE, APPELLEE
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Plaintiffs appealed an order dismissing their complaint for improper venue in a suit seeking to cancel an allegedly usurious promissory note and mortgages. The court affirmed the dismissal, holding that while one mortgage was secured by Dade County real property, the action was fundamentally a personam suit to cancel the note rather than one involving title to or liens on real property.
Venue in Dade County was improper because the action was fundamentally an in personam suit for cancellation of a usurious note, not an action involving title to or removal of a cloud or lien on Dade County real property, and thus the presence of a mortgage on Dade County property did not establish venue there.
[1] Venue for an action to cancel a promissory note and its securing mortgages, based on allegations of usury, is proper in the county where the note was executed and made pa…
[2] An action to cancel a promissory note and mortgages on the grounds of usury is considered an action in personam, not an action involving title to or removal of a cloud or…
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Join FLexlaw to unlock all legal intelligence“This action sounds in equity as an action for the cancellation of an alleged usurious note.”
Establishes the characterization of the suit as fundamentally a suit to cancel a note rather than an action involving real property.
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Join FLexlaw to unlock all legal intelligencePlaintiffs executed a promissory note to defendant payable in Winter Park, Florida, secured by mortgages including one on real property in Dade County…
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Plaintiffs below have taken an interlocutory appeal from an order which dismissed their complaint because of improper venue.
Plaintiffs maintain their complaint sought a declaratory decree that a promissory note and mortgages given by them to the defendant were usurious and void and they prayed for cancellation of the note and mortgages and injunctive relief against a foreclosure. They contend that the property in litigation is located in Dade County, Florida, because one of the mortgages given as security for the note is on real property located in Dade County, *144Florida. See § 47.011, Fla.Stat., F.S.A. A deed of trust on real property in California was also allegedly given as security for the challenged note. The promissory note was attached as an exhibit to the complaint but the mortgages were not so attached and are not in the record on appeal. The record on appeal indicates that the note was executed and made payable in Winter Park, Florida and that all prior payments and performances have been in Winter Park, Orange County, Florida, where the defendant resides.
The defendant argues that the complaint sounded in equity as a suit to cancel a note and mortgages because they were alleged to be usurious. Defendant contends that this action did not involve title to, or the removal of a cloud or lien upon, real property in Dade County, Florida, but that it was simply an action in personam to cancel a promissory note alleged to be usurious, together with the mortgages which secured the note.
A careful examination of the complaint shows that it does not allege or seek removal of a cloud or a lien on real property located in Dade County, Florida and that it did not seek to determine title to such property.
This action sounds in equity as an action for the cancellation of an alleged usurious note. We affirm the ruling that venue in Dade County, Florida, was improper. See Baum v. Corn, Fla.App.1964, 167 So.2d 740; 56 Am.Jur. Venue § 21; and 13 Am.Jur.2d Cancellation of Instruments § 53.
The order dismissing the cause for improper venue is
Affirmed.
(dissenting).
I respectfully dissent from the majority opinion in this cause and would reverse the order under review.
The plaintiffs alleged by verified complaint that they were the owners of the real property located in Dade County, Florida; that they executed a note payable to the defendant and, at the same time, did execute and deliver a second mortgage covering property in Dade County, Florida; and sought, among other things, that the mortgage be cancelled and discharged of record. I think this is sufficient proof that venue would lie in Dade County, Florida.
BARKDULL, Judge
(dissenting).
I respectfully dissent from the majority opinion in this cause and would reverse the order under review.
The plaintiffs alleged by verified complaint that they were the owners of the real property located in Dade County, Florida; that they executed a note payable to the defendant and, at the same time, did execute and deliver a second mortgage covering property in Dade County, Florida; and sought, among other things, that the mortgage be cancelled and discharged of record. I think this is sufficient proof that venue would lie in Dade County, Florida.
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Tucker v. Chantal Fianson, 484 So. 2d 1370 (Fla. 3d DCA 1986)…ccrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents. Since the defendant resides in Broward County and no property is "in litigation” within the meaning of the statute, Coon v. Abner, 246 So. 2d 143 (Fla.1971), venue may be sustained in Dade County only if, as we hold, the cause of action "accrued” here. In this connection, we agree with the defendant that for present purposes— although not in considering the separate question of whether a tran…
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Royal v. Parado, 462 So. 2d 849 (Fla. 1st DCA 1985)
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Greene v. A.G.B.B. Hotels, Inc., 505 So. 2d 666 (Fla. 5th DCA 1987)…DCA 1981). The transfer of the security of the lien from the land to the bond pursuant to statute apparently results in a conversion of the lienor’s cause of action from one in rem to one in personam. Cheesbro, supra, f.n. 4. . Cf. Coon v. Abner, 246 So. 2d 143 (Fla. 3d DCA 1971) where the court held that an action to cancel a note and mortgage on the ground of usury was an action in personam and did not involve the property in the litigation, so that venue based solely on the location of the property was…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baum v. Morton Corn, 167 So. 2d 740 (Fla. 2d DCA 1964)