DOUGLAS STEVENS AND CHARLOTTE STEVENS, APPELLANTS,
v.
JEFFERSON NATIONAL BANK OF MIAMI BEACH, 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.
Appellants challenged denial of their motion to dismiss Count III of a mortgage foreclosure complaint. The court held that Count III, which sought to foreclose a mortgage to secure a guarantee of a third-party promissory note, failed to allege sufficient facts to state a cause of action because the mortgage did not extend to cover the guarantee.
Count III fails to state a cause of action because the mortgage did not extend its lien to cover the guarantee of the Charwend note, and none of the instruments relating to the guarantee authorized a lien on the premises.
[1] A mortgage lien does not extend to secure a personal guarantee of a third-party note unless the mortgage instruments expressly provide for such coverage.
[2] A complaint seeking foreclosure of a mortgage must contain sufficient allegations to state a cause of action for the relief sought.
Previewing 2 of 3 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“the trial court should have granted appellants' motion to dismiss in regard to Count III of appellee's complaint. We believe that there were insufficient allegations in this Count to state a cause of action for the relief sought.”
The court's core holding that Count III fails on its face to allege sufficient facts to support foreclosure on the guarantee.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellants executed a mortgage with appellee on June 19, 1973, securing approximately $650 in debt. Subsequently, appellants executed a $2,000 promiss…
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.
Explore caselaw by topic → Browse Cause Of Action Sufficiency cases and more on FLexlaw
KEHOE, Judge.
Appellants, defendants below, bring this interlocutory appeal from an order dated April 28, 1977, entered by the trial court denying their motion to dismiss appellee’s, plaintiff below, complaint. We have concluded that the trial court erred by denying appellants’ motion to dismiss in regard to Count III of appellee’s complaint.
Appellee filed a complaint seeking to foreclose a mortgage on certain real property in Dade County owned by appellants. Among other things, it was alleged that appellants executed a mortgage on June 19, 1973, with appellee and that there remained due approximately $650 on the mortgage. It was further alleged that, subsequently, appellants executed a promissory note in favor of appellee in the amount of $2000 which was covered by a mortgage provision relating to future advances. Also, in Count III of the complaint, it was alleged that a corporation, Charwend, Inc., owned and controlled by appellants executed and delivered a promissory note to appellee for the amount of $15,869.26, and that in conjunction with this note appellants, individually, executed a guarantee of the note. Appellee then alleged that the guarantee of appellants was secured by the mortgage which was sought to be foreclosed.
In response to appellee’s complaint, particularly in reference to Count III, appellants filed a motion to dismiss. The basis of the motion was that the mortgage did not extend the lien on the premises to cover the guarantee and the Charwend, Inc., note, and that none of the instruments relating to such guarantee authorized a lien on the premises. From the trial court’s order denying their motion to dismiss, appellants bring this appeal.
Our review of this matter leads us to the opinion that the trial court should have granted appellants’ motion to dismiss in regart to Count III of appellee’s complaint. We believe that there were insufficient allegations in this Count to state a cause of action for the relief sought. See Downing v. First National Bank of Lake City, 81 So. 2d 486 (Fla.1955); Newman v. Greene, 92 Fla. 684, 109 So. 582 (Fla.1926); and 9 Thompson on Real Property § 4749 (J. S. Grimes ed. 1958). Therefore, the order appealed is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Downing v. The First Nat'l Bank OF Lake City, 81 So. 2d 486 (Fla. 1955)
- Newman v. Greene, 92 Fla. 684 (Fla. 1926)