Costa Bella Development Corp. v. Recarey

390 So. 2d 100, 1980 Fla. App. LEXIS 18081

• Court: District Court of Appeal of Florida
• Decided: November 4, 1980
• Docket: Nos. 79-1942, 79-1943
• Status: Published

Opinion

PER CURIAM.

Appellant, plaintiff below, brings this appeal from two orders¹ which dismissed its amended complaint for failure to state a cause of action against the appellees, defendants below, in their individual capacities. We find that a cause of action was stated and reverse.

The complaint alleges that the plaintiff sold land to Costa Development Corporation, which was owned and controlled by the defendants, and took back as part of the purchase price a purchase money mortgage encumbering the property. A subsequent mortgage was then taken out on the property by the defendants. Plaintiff allegedly was induced, through a fraudulent conspiracy, to subrogate its mortgage to that of the second lender. Plaintiff further alleged that the defendants, in their individual capacities, guaranteed this second mortgage and that those guarantees acted as added security for the appellant’s mortgage but that the defendants subsequently sold the property to a dummy corporation of the second lender in return for a quantity of cash and a release from their personal guarantees. These facts sufficiently established the plaintiff’s cause of action against the defendants for fraudulently conspiring to extinguish plaintiff’s rights and security under the mortgage. Ocala Loan Company v. Smith, 155 So.2d 711 (Fla. 1st DCA 1963).

We find that the complaint does set forth a cause of action against the individual defendants and reverse the orders of the trial court.

1 . One order was entered in favor of appellee, Donald H. Altman; the other was entered in favor of appellees, Recareys.