Dib. v. Attorneys'title Ins. Fund

778 So. 2d 413, 2001 WL 76736

• Court: District Court of Appeal of Florida
• Decided: January 31, 2001
• Docket: 3D00-387
• Status: Published

Opinion

778 So.2d 413 (2001)

DUBAI ISLAMIC BANK, Appellant,
v.
ATTORNEYS' TITLE INSURANCE FUND, et al., Appellees.

No. 3D00-387.

District Court of Appeal of Florida, Third District.

January 31, 2001. Rehearing Denied March 8, 2001.

Fine & Associates, P.A., Alan S. Fine, and Jonathan R. Rosenn, Coral Gables, for appellant.

Cohen, Fox, P.A., Scott A. Burr, and Robert A. Cohen, Miami, for appellees.

Before COPE, FLETCHER, and RAMIREZ, JJ.

ON MOTION FOR REHEARING

PER CURIAM.

Appellant Dubai Islamic Bank's (DIB) motion for rehearing and/or clarification is granted, the original opinion in this case, filed on December 13, 2000, is vacated, and the following corrected opinion is substituted therefor.

DIB appeals a final summary judgment of foreclosure that extinguishes its interest as a beneficiary of a constructive trust in a condominium unit on which appellee Attorneys' Title holds a mortgage. Because DIB's interest is inferior to that of Attorneys' Title, we affirm.

The record before this Court is devoid of any evidence that Private Funding, the assignor of Attorneys' Title's mortgage, had any knowledge of DIB's interest when it provided the loan to the foreclosure defendant below, Foutanga Dit Babani Sissoko. Additionally, the record is devoid of any evidence to refute Private Funding's affidavit and deposition testimony that it did not have actual or constructive knowledge of DIB's interest. Because a constructive trust beneficiary's interest in real property is, by definition, an unrecorded interest which is inferior to the interest of a bona fide purchaser of the real property, see General Coffee Corp. v. City Nat'l Bank of Miami, 828 F.2d 699, 704 (11th Cir.1987), the final summary judgment in favor of Attorneys' Title was properly entered under the circumstances of this case.

Affirmed.