ASSOCIATES DISCOUNT CORPORATION AND WILLIAM A. INGRAHAM, JR., TRUSTEE, APPELLANTS,
v.
JOHN GOMES AND ADELINE GOMES, HIS WIFE, APPELLEES
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Associates Discount Corporation and William A. Ingraham, Jr., as trustee, sought to reverse a foreclosure judgment that upheld the priority of the Gomes' purchase money mortgage over their judgment lien. The court affirmed, holding that purchase money mortgages are senior to judgment liens as a matter of law.
The court held that the Gomes' purchase money mortgage is a superior lien to appellants' judgment lien, and therefore the trial court properly granted summary judgment in favor of appellees on the ground that purchase money mortgages generally take priority over judgment liens.
[1] A purchase money mortgage generally takes priority over other claims or liens attaching to the property through the mortgagor.
[2] Purchase money mortgages are recognized as being senior to judgment liens.
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Join FLexlaw to unlock all legal intelligence“purchase money mortgages generally take priority over any other prior or subsequent claims or liens attaching to the property through the mortgagor and these mortgages are recognized as being senior to the claims of dower and homestead as well as to judgment liens and mortgages on after acquired property”
Establishes the fundamental legal principle that purchase money mortgages have superior priority to judgment liens
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Join FLexlaw to unlock all legal intelligenceIn October 1969, appellants obtained a personal final judgment against John and Estella Martin. The Martins later purchased real property from appelle…
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[*553] PER CURIAM.
Appellants seek reversal of a final judgment of foreclosure determining appellees’ mortgage to be a superior lien.
In October 1969 appellants Associates Discount Corporation and William A. Ingra-ham, Jr., Trustee had a personal final judgment recorded against John and Estella Martin. Thereafter the Martins purchased from appellees, John and Adeline Gomes, the subject real property and executed a promissory note and mortgage in their favor. Subsequently the Martins defaulted on the mortgage payments, and appellees filed a complaint to foreclose mortgage and a notice of lis pendens. While this action was pending, appellants levied upon the subject property with the October 1969 final judgment against the Martins, and on September 18, 1973 at a public sale the property was sold by the sheriff to the appellants. On November 21 a final judgment of foreclosure was entered in favor of appellees, and on December 27 a certificate of sale issued to them. Upon learning of the sheriff’s sale, appellees moved to set aside the final judgment and sale. This motion was granted, and appellees filed an amended foreclosure complaint adding appellants. Appellees filed motion for summary judgment and after a hearing, the court granted appellees’ motion on the ground that appellees’ purchase money mortgage is a superior lien to appellants’ judgment lien. Thereupon, a final judgment of foreclosure was entered in favor of appellees.
Appellants contend the trial court erred as a matter of law and fact when it upheld the priority of the purchase money mortgage. We cannot agree.
The law is well settled that purchase money mortgages generally take priority over any other prior or subsequent claims or liens attaching to the property through the mortgagor and these mortgages are recognized as being senior to the claims of dower and homestead as well as to judgment liens and mortgages on after acquired property. County of Pinellas v. Clearwater Fed. Sav. & L. Ass'n, 214 So. 2d 525 (Fla.2d DCA 1968). Further, appellants’ attempt to execute on their judgment was too late as prior thereto the foreclosure action by appellants had commenced and a notice of lis pendens had been filed. Cf. Baron v. Aiello, 319 So. 2d 198 (Fla.3d DCA 1975). Thus, the trial judge was eminently correct in determining that appellees’ purchase money mortgage does have priority.
Affirmed.
BARKDULL, C. J., concurs in decision.
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Bancflorida v. Hayward, 689 So. 2d 1052 (Fla. 1997)…the public records. Thus, a purchase money mortgage has been recognized to be senior to prior recorded judgment liens, Citibank Mortgage Corp. v. Carteret Sav. Bank, 612 So. 2d 599 (Fla. 4th DCA 1992); Sarmiento; Associates Discount Corp. v. Gomes, 338 So. 2d 552 (Fla. 3d DCA 1976), and a prior recorded welfare lien. Pinellas County v. Clearwater Fed. Sav. & Loan Ass’n, 214 So. 2d 525 (Fla. 2d DCA 1968). Presumably, the rule giving superiority to purchase money mortgages came about because of the recognitio…
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Sarmiento v. Stockton, 399 So. 2d 1057 (Fla. 3d DCA 1981)…se money mortgage, in that the mortgage was not executed in favor of the vendor but in favor of a third party. The appellant’s contention is without merit and this case will be affirmed on the authority of Associates Discount Corporation v. Gomes, 338 So. 2d 552 (Fla.3d DCA 1976); Shilling v. Bank of Sulphur Springs, 147 So. 218 (Fla.1933); Cheves v. First National Bank of Gainesville, 79 Fla. 34, 83 So. 870 (1920); 2 Boyer, Florida Real Estate Transactions, § 32.04(1). In the latter authority, the followin…
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Harris v. Nat'l Judgment Recovery Agency, Inc., 819 So. 2d 850 (Fla. 4th DCA 2002)…thereto, the Sheriff published a Notice of Sheriffs sale for July 18, 2001. Appellant filed (in the Baarcke case) a “Motion to Vacate/Quash the Writ of Execution/Notice of Levy,” on the ground that the holding in Associates Discount Corp. v. Gomes, 338 So. 2d 552 (Fla. 3d DCA 1976), precludes levy on real property under a writ of execution while a foreclosure on that property is pending and Notice of Lis Pendens has been filed. On appeal from the order denying that motion (No. 4D01-2826), appellant makes the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cnty. OF Pinellas v. Clearwater Fed. Sav. & Loan Ass'n, 214 So. 2d 525 (Fla. 2d DCA 1968)
- Marylin S. Baron v. Aiello, 319 So. 2d 198 (Fla. 3d DCA 1975)