Decubellis v. Ritchotte

730 So. 2d 723, 1999 WL 49362
CourtDistrict Court of Appeal of Florida
DecidedFebruary 5, 1999
Docket98-1991
StatusPublished
Cited by5 cases

This text of 730 So. 2d 723 (Decubellis v. Ritchotte) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Decubellis v. Ritchotte, 730 So. 2d 723, 1999 WL 49362 (Fla. Ct. App. 1999).

Opinion

730 So.2d 723 (1999)

Magna M. DECUBELLIS, et al., Appellants,
v.
Douglas RITCHOTTE, et al., Appellees.

No. 98-1991

District Court of Appeal of Florida, Fifth District.

February 5, 1999.
Rehearing Denied March 4, 1999.

*724 Howard S. Marks and Samuel M. Nelson of Graham, Clark, Jones, Builder, Pratt & Marks, Winter Park, for Appellants.

Ronald H. Roby of Ronald H. Roby, P.A., Winter Park, for Appellees.

DAUKSCH, J.

This appeal arises out of a mortgage and lien foreclosure action. Because of fatal pleading deficiencies and the lien-holder's failure to comply with statutory requirements, we reverse the appealed foreclosure judgment.

In 1994, appellee Orange County Raceway (the Raceway) obtained a summary final judgment against Robert Lamp (not a party to this appeal). The judgment was recorded in the Orange County public records, but failed to state the Raceway's address. The following year, Lamp acquired the real property at issue in this appeal and used it to secure a mortgage to the Ritchottes (not a party to this appeal). In June 1997, the Ritchottes filed a complaint and lis pendens to foreclose their mortgage from Lamp. The Raceway answered, counterclaimed against the Ritchottes, and cross-claimed against Lamp, asserting that it was an unpaid senior creditor of Mr. Lamp and therefore entitled to proceeds from the foreclosure sale. However, the Raceway failed to file a lis pendens in connection with its claim. As a consequence, Orange County public records reflected only the Ritchottes' lis pendens as encumbering the subject property.

On July 30, 1997, appellant Howard Builders paid off the Ritchottes on behalf of the Lamps and obtained the property by warranty deed. On August 5, the Ritchottes voluntarily dismissed their claim and released the lis pendens. Howard Builders then recorded the warranty deed in Orange County's public records and used the property to secure a mortgage to appellant Citrus Bank. On April 10, 1998, eight months after the Ritchottes' lis pendens was dissolved, Howard Builders conveyed a portion of the property to appellant Magna Decubellis by warranty deed. Decubellis used the property to secure a $90,000 loan from appellant North American.

After defaulting all adverse parties to its cross-claim, on April 28, 1998, the Raceway obtained a judgment setting the foreclosure sale for June 2. The Raceway was the high bidder and received a certificate of sale the same day. Appellants were never joined as parties to the Raceway's foreclosure claim, were never served with the Raceway's cross-claim, and never knew of the Raceway's lien interest. Consequently, they never opposed the Raceway's default and judgment, either collectively or individually, until after the foreclosure sale. After discovering the judgment and sale on June 4, appellants filed a Motion for Relief from Judgment and to Vacate Judgment and Sale. The circuit court denied the motion this appeal followed.

Appellants argue that the court below lacked subject-matter jurisdiction to enter the foreclosure judgment for two reasons. First, they contend that the Raceway's failure to plead exhaustion of remedies in its answer and cross-claim deprived the court of jurisdiction. Second, appellants argue that the Raceway's money summary judgment against Lamp never matured into a lien because it failed to state the creditor's address as required by statute. We agree on both points and address each issue in turn.

In Miller v. Security-Peoples Trust Co., 142 Fla. 434, 195 So. 191 (Fla.1940), the court held that "before a creditor can resort to ... a creditor's bill he must first secure a judgment at law and exhaust all means afforded by the law to recover on such judgment." Id. at 194. The court went on to *725 state that "allegations relating to jurisdiction of equity cannot be shown by general averments... but facts must be alleged showing that only in equity will the remedy be full, adequate and complete." Id. The third district in Gantz v. First Nat'l Bank of Miami, 138 So.2d 367 (Fla. 3d DCA 1962) interpreted this ruling to require creditors to plead exhaustion of remedies in order to properly invoke a court's jurisdiction in equity. Id. at 368. However, neither of these decisions applied this rule to creditors who entered the litigation as cross-claimants in the underlying foreclosure action.

The third district in Young v. Charnack, 295 So.2d 665 (Fla. 3d DCA 1974), though, applied Gantz to facts which are procedurally identical to the instant appeal. In Charnack, the mortgagee brought a foreclosure action against the appellant-property owners. Id. at 665. Appellee, a senior judgment creditor, answered and cross-claimed for a share of foreclosure proceeds, but failed to allege exhaustion of remedies in the cross-claim. The trial court granted summary judgment in favor of the mortgagee and ordered that appellee-judgment creditor be paid out of proceeds generated by the foreclosure sale. On appeal, the third district reversed, holding in relevant part that "a resort to equity for collection of a judgment is not authorized in the absence of a showing of unavailability of collection by legal process." Id. at 666 (citing Gantz.) The court noted that "the cross-claim of the judgment holders made no such showing, alleging merely the existence and priority of the judgment and that it had not been paid." Id. at 667. Consequently, the court reversed that portion of the judgment ordering the payment of foreclosure proceeds to the appellee-creditor.

Charnack makes clear that exhaustion must be pled even by cross-claimants in foreclosure suits who seek to invoke the court's powers in equity. As in Charnack, the Raceway entered this case as a cross-claimant seeking to defend its judgment by establishing a right in the debtor's (Mr. Lamp) property. Its answer, counter-claim, and cross-claim alleges only that it is the holder of a final judgment against Lamp, that the judgment is past due, that Lamp owns the subject property, and that the Raceway is therefore entitled to proceeds from the foreclosure sale. It does not allege that it has resorted to execution, attachment, or other legal remedies to satisfy the judgment, or that such remedies are inadequate. Nor does the record indicate that the Raceway has utilized, much less exhausted, available legal avenues. We conclude that the Raceway did not properly invoke the circuit court's jurisdiction in equity.

Further, the underlying judgment against Lamp failed to comply with section 55.10(1), Florida Statutes (1997) and, thus, never matured into a lien. The statute dictates the procedure for creating judgment liens on real property as follows:

A judgment, order, or decree becomes a lien on real estate in any county when a certified copy of it is recorded in the official records or judgment lien record of the county, whichever is maintained at the time of recordation, and it shall be a lien for a period of 7 years from the date of the recording provided that the judgment, order, or decree contains the address of the person who has a lien as a result of such judgment, order, or decree or a separate affidavit is recorded simultaneously with the judgment, order, or decree stating the address of the person who has a lien as a result of such judgment, order, or decree. A judgment, order or decree does not become a lien on real estate unless the address of the person who has a lien as a result of such judgment, order, or decree

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Cite This Page — Counsel Stack

Bluebook (online)
730 So. 2d 723, 1999 WL 49362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/decubellis-v-ritchotte-fladistctapp-1999.