DAVID CHAYKIN, APPELLANT,
v.
JOAN KANT ET AL., APPELLEES
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Chaykin sought to foreclose a $50,000 mortgage on the Kant family home. The trial court found that the mortgage was part of a scheme to defeat a potential IRS tax lien, involved a circular cash transaction with no real consideration, and dismissed the foreclosure suit based on the doctrine of in pari delicto.
The trial court properly rejected the foreclosure suit because the note and mortgage lacked valid consideration and were part of a fraudulent scheme. The defendants were not estopped from challenging the instrument's validity because all parties, including Chaykin, were in pari delicto (equally at fault).
[1] A court will not enforce a mortgage or note that was part of a scheme to defraud the government.
[2] Parties who are in pari delicto, meaning equally at fault, will not be aided by the court in enforcing an illegal agreement.
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“Chaykin, the plaintiff, was the party seeking foreclosure of the mortgage and possession of the home and, therefore, the court was correct in not aiding Chaykin by enforcing the mortgage but instead leaving Chaykin where he placed himself and dismissing his suit.”
Establishes the core holding that a party in pari delicto cannot obtain judicial aid to enforce an instrument tainted by his own wrongdoing.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSamuel J. Kant executed a $50,000 note and mortgage to Chaykin secured by his home. Defendants alleged this was done as part of a scheme to protect Ka…
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PER CURIAM.
David Chaykin, plaintiff in the trial court, brought suit against Jon R. Kant and Terry A. Kant, the heirs of Samuel J. Kant, deceased, to foreclose a mortgage secured by a note in the sum of $50,000 given by the deceased on his home. The United States government was joined as a party defendant by virtue of an Internal Revenue tax lien which was filed against Samuel J. Kant.
Jon and Terry Kant defended the suit by alleging, in essence, that the note and mortgage were given to Chaykin by the deceased for the purpose of eliminating a possible Internal Revenue tax lien against Kant and thereby protecting his home from a forced sale. The mortgage was recorded. Defendants admit execution of the mortgage and note, but contend failure of consideration in' that, as a part of a scheme or device to defeat the potential tax lien, Kant did execute the note and mortgage to Chaykin and at the same time, gave Chaykin $50,000 in cash. Chaykin, in return, gave Kant a check for $50,000 and a satisfaction of mortgage, prepared by Kant’s lawyer, to hold until Kant desired to record it. Jon and Terry Kant counterclaimed for declaratory relief to declare and determine their rights and interest in the property.
The trial court, without jury, after the conclusion of all the testimony, entered final judgment for Jon and Terry Kant, refused enforcement of the note and mortgage, and dismissed Chay-kin’s suit with prejudice, specifically finding that the defendants had proved their defenses. It is from this final judgment that Chaykin appeals, contending that defendants’ evidence was not sufficient to overcome the established validity of the mortgage and note and further that the defendants were estopped to attack the validity of the mortgage and note.
The record reflects that there was substantial competent evidence to support the findings and judgment of the trial court. On appeal, an appellate court does not weigh the evidence, for that is the primary function of the trial judge. Light v. King, Fla.App.1965, 179 So. 2d 398; Bosem v. Bosem, Fla.App.1972, 269 So. 2d 758, 761.
We do not agree with Chaykin’s contention that since the trial court found in its final judgment that the plaintiff had proved by competent evidence that there was a conspiracy between Samuel J. Kant and Chaykin, the plaintiff, Kant cannot be considered an innocent party and, therefore, Jon and Terry Kant are estopped to assert the invalidity of the mortgage and note. Chaykin, Samuel J. Kant and defendants, Jon and Terry Kant, were, in this case, in pari delicto. Chaykin, the plaintiff, was the party seeking foreclosure of the mortgage and possession of the home and, therefore, the court was correct in not aiding Chaykin by enforcing the mortgage but instead leaving Chaykin where he placed himself and dismissing his suit. Burton v. McMillan, 1907, 52 Fla. 228, 42 So. 879; Chesser v. Chesser, 1914, 67 Fla. 6, 64 So. 357.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bosem v. A. R. A. Corp., 350 So. 2d 526 (Fla. 3d DCA 1977)…the cause for new trial, we do not pass judgment on whether or not the additional exhibits would enable the plaintiff to establish a prima facie case for goods sold and delivered. That decision is one for the trial judge to answer. Chaykin v. Kant, 327 So. 2d 793 (Fla.3d DCA 1976). Accordingly, the final judgment appealed from is reversed and the cause remanded for new trial. Reversed and remanded for new trial. . Defendant contends that it is not proper for this court to consider any alleged error by the…
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Pelle v. Glantz, 349 So. 2d 732 (Fla. 3d DCA 1977)…on of the note and mortgage. “22. That based upon the scheme entered into by the Defendant PELLE and the mortgagor GLANTZ, the Court finds that the equities in this matter would prohibit the enforcing of said mortgage. (Chaykin vs. Kant [Fla.App.], 327 So. 2d 793.)” Thereupon, the court declined to enforce the Glantz mortgage. On this appeal, appellants’ contention is that the trial judge erred in finding the mortgage unenforceable because the mortgagor failed to sustain by a “preponderance of the evidence…
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Kremser v. Hadigher Tonokaboni, 356 So. 2d 1331 (Fla. 3d DCA 1978)…ord in light of the applicable principles of law, it is our opinion that no consideration was present. As a general principle of law, a mortgage is not valid and binding unless founded upon a bona fide and sufficient consideration. Chaykin v. Kant, 327 So. 2d 793 (Fla.3d DCA 1976); 22 Fla.Jur. Mortgages, § 63 (1958). If at the mortgagor’s request, any detriment or loss is sustained by the mortgagee, or any advantage or benefit accrues to the mortgagor, there is sufficient consideration to support the mortgag…
Authorities Cited
- Arie Lionel Bosem v. Bosem, 269 So. 2d 758 (Fla. 3d DCA 1972)
- Light v. King, 179 So. 2d 398 (Fla. 3d DCA 1965)
- Burton v. McMillan, 52 Fla. 228 (Fla. 1906)
- The First Nat'l Bank of Lake City v. United States Fid. & Guar. Co., 67 Fla. 6 (Fla. 1914)