YOUR CONSTRUCTION CENTER, INC., A FLORIDA CORPORATION, ET AL., APPELLANTS,
v.
GORDON R. GROSS, NOT INDIVIDUALLY BUT AS A TRUSTEE OF DOMINION MORTGAGE AND REALTY TRUST, A MASSACHUSETTS BUSINESS TRUST, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A trustee of a Massachusetts business trust sued to foreclose a mortgage on Florida real estate where the note and mortgage named only that single trustee as payee. The court held that a single trustee of a foreign trust is entitled to maintain a foreclosure action without joining all other trustees of the trust, distinguishing prior case law that applied only to sham trusts.
A trustee of a foreign business trust who is named as the sole payee on a note and mortgage has the right to maintain a foreclosure action without joining other trustees. The trust's failure to qualify under Florida law does not bar the action because the creation and execution of the note and mortgage outside Florida does not constitute the transaction of business requiring qualification under Florida statutes.
[1] A trustee of a foreign business trust, named as the sole payee on a note and mortgage, is entitled to maintain an action to foreclose the note and mortgage.
[2] A foreign business trust is not required to qualify under Florida Statutes Chapter 609 to bring suit on a note and mortgage if its actions do not constitute transacting b…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“where a note and mortgage are executed naming as payee one trustee to this sort of foreign trust, and not more, that trustee is entitled to maintain an action on the note and mortgage and to discharge the obligation”
Establishes the core holding that a single trustee named as payee has standing to foreclose without joining other trustees
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe plaintiff, Gordon R. Gross, was a trustee of Dominion Mortgage and Realty Trust, a Massachusetts business trust, and was the sole payee on a note …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
WALDEN, Chief Judge.
This is an appeal by defendants from a trial court denial of their motion to dismiss plaintiff’s complaint to foreclose a note and mortgage. The plaintiff, a trustee of Dominion Mortgage and Realty Trust, a Massachusetts business trust, brought suit to foreclose the note and mortgage as trustee. He is the sole payee on the note and mortgage. Defendants have argued that each trustee of the trust company should be named as plaintiff, and cite to Willey v. Hoggson, 90 Fla. 343, 106 So. 408 (1925):
“When parties having a joint interest in the subject-matter of litigation are not properly before the court, the appeal will be dismissed.” 90 Fla. at 355, 106 So. at 412.
Willey v. Hoggson, supra, however, dealt not with an individual bringing suit in his own name as trustee, but with a finding by the Supreme Court that a claimed trust was a ruse, calculated by the parties to the arrangement to evade the liabilities of a partnership and acquire the privileges of a corporation without complying with the Florida corporation laws. The Willey court, therefore, held that all persons interested in the properties of what it termed the “association” had to be joined in the action.
In this case the plaintiff is a trustee of a Massachusetts Business Trust. We hold that where a note and mortgage are executed naming as payee one trustee to this sort of foreign trust, and not more, that trustee is entitled to maintain an action on the note and mortgage and to discharge the obligation. See Boyd v. Blvd. Nat’l Bank, 306 So. 2d 551 (3d DCA Fla. 1975). We do not eliminate the possibility that there could be a motion to add parties under Fla.R.C.P. 1.250 (1975).
Further, when plaintiff files his complaint, he must necessarily allege he is the owner and holder of the note and mortgage in question. 22 Fla.Jur., Mortgages § 314 (1958). Should defendants have any allegation to the contrary they 'may join issue on it, and obtain adjudication as to the ownership.
Defendants alleged that the Massachusetts trust had not qualified under Chapter 609 of the Florida Statutes to do business in the State of Florida, and should be precluded from bringing the subject action. However, we find that plaintiff has not engaged in activities sufficient to subject him to Chapter 609 qualification. The action arises upon a note and mortgage on Florida real estate, made, executed and delivered in New York. In 36 Am. Jur.2d, Foreign Corporations, § 335 (1968), it is noted:
“If the consummation of a contract outside the state by a foreign corporation amounts to the transaction of business, it is the transaction of business in the state where the contract is consummated.” Id. at 336.
We do not hold that plaintiff’s actions would not subject him to service under the long arm statutes of Florida, but his actions do not require qualification under Chapter 609, in order to bring suit. Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974).
Affirmed.
OWEN and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Brickell Constr. Co. v. Hartman, 332 So. 2d 119 (Fla. 3d DCA 1976)…PER CURIAM. Affirmed. See Your Construction Center, Inc. v. Gross, Fla.App.1975, 316 So. 2d 596 and Brickell Construction Corp. v. Pujol, Fla.App.3d 1976, 329 So. 2d 340.…
-
Tampa Props., Inc. v. Great Am. Mortg. Invs., 333 So. 2d 480 (Fla. 2d DCA 1976)…t Florida decisions. In Boyd v. Boulevard National Bank, Fla.App.3d 1975, 306 So. 2d 551, the Third District Court of Appeal held such a trust was an entity for purpose of being sued, and in Your Construction Center, Inc. v. Gross, Fla.App.4th 1975, 316 So. 2d 596, the Fourth District Court of Appeal held that all of the trustees of a Massachusetts business trust were not indispensable parties plaintiff in a mortgage foreclosure. Recently, in Pinellas County v. Lake Padgett Pines, Fla.App., 333 So. 2d 472, o…
-
Overseas Dev., Inc. v. Krause, 323 So. 2d 679 (Fla. 3d DCA 1975)…plaintiff, so styled, was the named payee on the indebtedness that was the subject of the foreclosure. This exact point has been passed upon by the District Court of Appeal, Fourth District, in Your Construction Center, Inc. v. Gross, Fla.App.1975, 316 So. 2d 596. We follow the holding of that court. See also Boyd v. Boulevard National Bank, Fla.App.1975, 306 So. 2d 551. We further note that such holding does not eliminate the possibility that there could be a motion to add parties under RCP 1.250. Affirmed…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allenberg Cotton Co., Inc. v. Pittman, 419 U.S. 20 (U.S. 1974)
- Willey v. W. J. Hoggson Corp., 90 Fla. 343 (Fla. 1925)
- Boyd v. Boulevard Nat'l Bank, 306 So. 2d 551 (Fla. 3d DCA 1975)