R. C. BOWERS, AS TRUSTEE IN BANKRUPTCY FOR THE ESTATE OF E. C. PEARSON, BANKRUPT, APPELLANT,
v.
ROSA M. PEARSON, BY HER NEXT FRIEND, H. H. HOBBS, APPELLEE
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A bankruptcy trustee appealed the overruling of a plea in a mortgage foreclosure suit, arguing that a U.S. Court decree should bar the assignee's foreclosure. The Florida Supreme Court held that a lis pendens only affects transfers made after the suit is filed, and since the mortgage assignment predated the filing, the U.S. Court decree was not binding on the assignee who was never a party to that suit.
The U.S. Court decree was not binding on the mortgage assignee because: (1) a lis pendens only affects transfers made after the suit is filed; (2) the assignee was never a party to the U.S. Court suit; and (3) the mortgage assignment predated the filing of the U.S. Court suit, making the decree inapplicable to her rights.
“Where a mortgage foreclosure suit is started, and a lis pendens filed, the lis pendens can only affect transfers and assignments which are made after the suit is started and after the lis pendens is filed.”
Establishes the core legal principle that lis pendens does not reach back to affect pre-filing transfers.
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Join FLexlaw to unlock all legal intelligenceE.C. Pearson's estate was in bankruptcy, with R.C. Bowers serving as trustee. A mortgage foreclosure suit was initiated and a lis pendens was filed. T…
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Where a mortgage foreclosure suit is started, and a Us pendens filed, the Us pendens can only affect transfers and assignments which are made after the suit is started and after the lis pendens is filed. Baker v. Bartlett, 56 Am. St. Rep. 594; Wingfield v. Neall, 116 Am. St. Rep. 882. The decree of the U. S. Court referred to in the plea in this case was therefore not binding on the appellant as assignee of the mortgage, who never was miade a party, actually or constructively, in the U. S. Court suit, and whose assignment of mortgage antedated the filing of such suit. The assignment is directly shown not to have been made pendente lite altho unrecord*716ed as required by statute, Section 5744, C. G. L., 3841 R. G. S., until after tbe U. S. Court suit was filed.
Tbe plea which was over-ruled by the Chancellor, whose order is appealed from in this case, undertook to set up as a defense to foreclosure by the assignee of the mortgage, an adverse adjudication by the U. S. Court which was not binding on the assignee altho her assignment was recorded after the suit was filed, because she was not a party to such suit and her rights could not have been legally determined by the decree made by the U. S. Court.
The plea based on the effect of the adjudication of the U. S. Court in no wise undertook to raise the question of the rights of appellant to foreclose her mortgage, under her unrecorded assignment, as against the appellee, as a trustee in bankruptcy for the bankrupt estate of the assignor. Whether the trustee in bankruptcy represents the creditors of the assignor of the mortgage and is entitled to the benefit of the statute against unrecorded mortgage assignments, as contended by appellants, is not presented by the plea which confines itself to reliance’ upon the adjudication of another court, which we hold was not binding on appellant.
The order over-ruling the plea to the bill of complaint is therefore affirmed.
Whitfield, P.J., and Terrell and Davis, J.J., concur.
Buford, C.J., and Ellis and Brown, J.J., concur in the opinion and judgment.
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Nat'l Bank OF Sarasota v. Dugger, 335 So. 2d 859 (Fla. 2d DCA 1976)…ens. We point out that in O’Bryan the holders of the deed waited seven years after the foreclosure and sale before asserting their interest, and the appellees’ title had vested by adverse possession. O’Bryan did not overrule Bowers v. Pearson, 1931, 101 Fla. 714, 135 So. 562, wherein the Florida supreme court held that the filing of notice of lis pendens affects only transfers and assignments made after commencement of the suit and after the notice is filed. We have no quarrel with the law pronounced in the…