OVERSEAS DEVELOPMENT, INC., A FLORIDA CORPORATION, APPELLANT,
v.
R. A. KRAUSE, AS NOMINEE OF THE TRUSTEES OF ATICO MORTGAGE INVESTORS, A MASSACHUSETTS BUSINESS TRUST, ET AL., APPELLEES
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Overseas Development challenged an interlocutory order appointing a receiver in a mortgage foreclosure action and an order denying its motion to dismiss. The Florida appellate court affirmed both orders, holding that a receiver may be appointed before service of process in emergency circumstances and that a Massachusetts business trust may sue through a nominee without all trustees being named parties.
A receiver may be appointed before service of process when an emergency exists and the defendant has adequate notice of the application and suffers no prejudice. A Massachusetts business trust may sue through a nominee styled as payee without requiring all trustees to be named as parties to the action.
[1] A court may appoint a receiver in a mortgage foreclosure proceeding prior to the actual service of process on the defendant when an emergency exists and the defendant has…
[2] The appointment of a receiver in a mortgage foreclosure proceeding is within the discretion of the trial court, even when the plaintiff is alleged to have unclean hands.
Previewing 2 of 4 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“it is not available to [the appellant] here inasmuch as there is no general rule requiring service prior to the appointment of the receiver whenever an emergency exists”
Establishes that service of process is not a prerequisite to receiver appointment when emergency circumstances justify appointment
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Join FLexlaw to unlock all legal intelligenceOverseas Development, a Florida corporation, was the defendant in a mortgage foreclosure proceeding brought by R. A. Krause as nominee of the trustees…
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PER CURIAM.
These interlocutory appeals have been consolidated for all appellate purposes. The first numbered appeal is from an order appointing a receiver in a mortgage foreclosure proceeding. The second is from an order denying a motion to dismiss.
Defendant urges that, as to the appointment of the receiver, it was error to make such appointment prior to the actual service of process on the defendant. While this argument could be made under some circumstances, it ' is not available .to the appellant here inasmuch as there is no general rule requiring service prior to the appointment of the receiver whenever an emergency exists. See the rule in Bochterle v. Florida Milk Co., 1938, 132 Fla. 827, 182 So. 215 and Dixie Music Co. v. Pike, 1938, 135 Fla. 671, 185 So. 441. Under the present circumstances, it is clear that defendant had adequate notice of the application and was in no way prejudiced by the failure to be served with process before the hearing. Also, as to the appointment of the receiver, the defendant urges that the plaintiff entered the court with unclean hands. Under the facts revealed by the record, the appointment of the receiver was within the discretion of the trial court. Welch v. Gray Moss Bondholders Corporation, 1937, 128 Fla. 722, 175 So. 529 and Dixie Music Co. v. Pike, 1938, 135 Fla. 671, 185 So. 441.
The ground upon which the defendant urges that the plaintiff’s complaint for foreclosure should have been dismissed is:
“That this Court lacks jurisdiction of the person and of the subject matter in that there is no entity before the Court as Plaintiff pursuant to the law in the State of Florida.”
It urges that the plaintiff, a Massachusetts investment trust, must appear by all the trustees. The named plaintiff is: “R. A. Krause, as Nominee of the Trustees of ATICO MORTGAGE INVESTORS, a Massachusetts business trust.” The 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.
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Largen and Clontz v. Greenfield, 363 So. 2d 573 (Fla. 2d DCA 1978)…se of improper venue to be raised upon or before the filing of an answer. A defendant in a civil action who does not move for change of venue until after his answer has been filed is deemed to have waived his venue privilege. Aquaco, Inc. v. Hopkin, 323 So. 2d 679 (Fla.3d DCA 1975); Fixel v. Clevenger, 285 So. 2d 687 (Fla.3d DCA 1973). If this principle was deemed inapplicable to medical mediation proceedings, there would be nothing to prevent a defendant from raising venue at any time during the mediation pr…
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Silver Pines P'rs Ltd. v. The Resolution Tr. Corp., 588 So. 2d 63 (Fla. 5th DCA 1991)…chterle v. Florida Milk Co., 132 Fla. 827, 182 So. 215 (1938); Smith v. State Life Insurance Co., 114 Fla. 371, 153 So. 842 (1934); Smith v. Taylor, 112 Fla. 597, 150 So. 803 (1933); Pasco v. Gamble, 15 Fla. 562 (1876); Overseas Dev. Inc. v. Krause, 323 So. 2d 679 (Fla. 3d DCA 1975), cert, denied, 336 So. 2d 107 (Fla.1976). See also, Chapman v. Chapman, 526 So. 2d 131 (Fla. 3d DCA 1988); Annot., Appointment of Receivers — “Waste” 55 A.L.R.3d 1041, § 14[a] (1974). AFFIRMED. COWART, PETERSON and DIAMANTIS,…
Authorities Cited
- Dixie Music Co., Inc. v. Pike, 135 Fla. 671 (Fla. 1938)
- Welch v. Gray Moss Bondholders Corp., 128 Fla. 722 (Fla. 1937)
- Boyd v. Boulevard Nat'l Bank, 306 So. 2d 551 (Fla. 3d DCA 1975)
- Your Constr. Ctr., Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975)
- Mrs. F. J. Bochterle v. Fla. Milk Co., Inc., 132 Fla. 827 (Fla. 1938)