Interdevco, Inc. v. Brickellbanc Sav. Ass'n, 87-637
| Decision Date | 03 May 1988 |
| Docket Number | No. 87-637,87-637 |
| Citation | 524 So.2d 1087,13 Fla. L. Weekly 1059 |
| Court | Florida District Court of Appeals |
| Parties | 13 Fla. L. Weekly 1059 INTERDEVCO, INC., and Interdevco-Grove Square, Inc., Petitioners, v. BRICKELLBANC SAVINGS ASSOCIATION and Hollywood Federal Savings & Loan Association, Respondents. |
Squadron, Ellenoff, Mandler, Plesent & Lehrer and Bernard S. Mandler, Miami, for petitioners.
Ellis, Spencer, Butler & Kisslan and Robert Paul Keeley, Hollywood, for respondent Hollywood Federal Sav. & Loan Ass'n.
Dubbin, Berkman, Garber, Bloom & Moriber and Scott Rubin, Miami, for respondent Brickellbanc Sav. Ass'n.
Before HUBBART, FERGUSON and JORGENSON, JJ.
ON MOTION FOR REHEARING
The petitioners, Interdevco, Inc. and Interdevco-Grove Square, Inc., seek reversal of an order appointing a receiver.
Interdevco commenced this litigation against appellee Brickellbanc on a complaint alleging "bad-faith" lending practices, admitting nonpayment on a construction loan, and seeking a restructuring or modification of the loan agreements to recover certain commitment and extension fees. Brickellbanc counterclaimed for foreclosure and for the appointment of a receiver. Appellee Hollywood Federal, a co-lender, filed an intervening complaint for foreclosure and appointment of a receiver. 1
The subject property is a large commercial and residential mixed-use project called Grove Square. At the time a receiver was appointed the $12 million project was "99.9%" completed, awaiting issuance of a certificate of occupancy after completion of $82,000 in clean-up work and correction of building code violations. A delay in completion of the building was caused by architectural and engineering problems for which the parties were compensated by insurers. A $1.2 million escrow fund was established from the insurance proceeds which the banks contend was available to complete construction, cure code violations, and make the project marketable. Interdevco disagreed that the insurance proceeds could be used to complete construction and offered no plans for completing construction other than by obtaining additional loans from the respondents:
MR. MANDLER [for Interdevco]: The purpose of the monies, your Honor, is not to be used in the construction of the project. There is a very important distinction the Court has to understand. Those are our monies. There is no question about that.
It is uncontroverted in the record that the market value of the collateral was less than the credit already extended by the banks. For that reason Hollywood Federal indicated that it would not put more money into the project.
Based on the testimony at the hearing where the respondent's witnesses and an Interdevco principal gave testimony the court concluded:
Gentlemen, I think I've heard sufficient testimony from the presentation of the [counter] plaintiff's two witnesses to make a determination that the building is not going to get complete without help from the court and help from the court can come only from a receiver.
Clearly it was Interdevco's refusal to permit use of the escrowed insurance proceeds to complete construction that caused the court to appoint a receiver while Interdevco's bad-faith lending claim and the bank's counterclaim for foreclosure remained pending.
Protracted litigation that postpones a foreclosure proceeding where the borrower is in default is considered a good reason for appointing a receiver. Federal Land Bank of Columbia v. Evans, 106 Fla. 560, 143 So. 403 (1932). Other jurisdictions have recognized the propriety of appointing a receiver to complete construction as a means of protecting the collateral. Pemberton Lumber & Millwork Indus. v. William G. Ridgway Constr. Co., 38 N.J.Super. 383, 118 A.2d 873 (Ch.Div.1955). In a case from this district a receiver was appointed to complete construction during the pendency of a foreclosure action without the consent of the mortgagor. Merritt v. First Nat'l Bank of Miami, 251 So.2d 329 (Fla. 3d DCA 1971). The propriety of the appointment was not an issue in Merritt.
In this case, however, it cannot be said that the trial court abused its discretion in appointing a receiver and authorizing the issuance of receiver certificates to complete construction. The record indicates that the borrower is in default; the market value of the collateral, in its unfinished condition, is less than the amount of the mortgage loans; the foreclosure proceeding will be protracted due to the borrower's claims that the mortgage contract should be reformed; the collateral is improved realty which cannot be marketed because it is in an incomplete state; and an escrow fund which could be used to complete construction cannot be used for that purpose because of the defaulting borrower's claim to the funds. Appointment of a receiver rests in the discretion of the court subject to being set aside only if shown to be so arbitrary, unreasonable, or so unjust as to amount to an abuse of discretion. Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241 (1930). Such an abuse is not shown in the record.
The court order of February 17, 1987, appointed a receiver with powers not only to complete construction but also to "market and contract to sell or lease all or part of the subject property." No equitable grounds are shown for interfering with the petitioners' rights to possess and market the property after construction is completed. There has been no showing that Interdevco-Grove Square is insolvent or...
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