Jamnadas v. Singh, 98-1198.

• Decision Date: 01 April 1999
• Docket Number: No. 98-1198.,98-1198.
• Citation: 731 So.2d 69
• Parties: Pradip JAMNADAS, etc., et al., Appellants, v. Mohan SINGH, etc., et al., Appellees.
• Court: Florida District Court of Appeals

731 So.2d 69

Pradip JAMNADAS, etc., et al., Appellants, v. Mohan SINGH, etc., et al., Appellees.

No. 98-1198.

District Court of Appeal of Florida, Fifth District.

April 1, 1999.

Maureen A. Arago of Maureen A. Arago, P.A., Longwood, for Appellants.

Martin S. Awerbach of Awerbach & Murphy, P.A., Clearwater, for Appellees.

ON MOTION FOR REHEARING/CLARIFICATION

COBB, J.

We grant the appellees' motion for rehearing/clarification and issue this substitute opinion.

This is an appeal from an order dismissing with prejudice Counts VII and X of the plaintiffs' third amended complaint, which counts were directed against various mortgagees. Count VII sought to impose equitable liens in favor of the plaintiffs against several parcels of real property, and a determination that the equitable liens should have priority over recorded mortgages held by the mortgagees on the individual properties. Count X sought a declaratory judgment that some of the same mortgages are void and not enforceable against the plaintiffs.

According to the well pleaded facts of the third amended complaint, the plaintiffs entered into a series of verbal agreements with Mohan Singh and Savitri Singh (the Singhs) for the purchase and improvement of subdivision lots. The plaintiffs gave money to the Singhs with the understanding that the Singhs would purchase said lots. The plaintiffs gave the Singhs a portion of the money needed to purchase the properties and the Singhs agreed to have the acquired lots deeded to the plaintiff Jamnadas' unincorporated business entity, "Sams Properties." The Singhs were then supposed to build single family homes on the lots and the Singhs represented to the plaintiffs that the homes to be constructed were pre-sold. The Singhs allegedly showed the plaintiffs contracts with the alleged purchasers. The plaintiffs were then supposed to receive the return of the initial investment, plus the profits from the sales of the lots and homes.

The plaintiffs allege that the Singhs did not purchase the lots in the name of Sams Properties; instead, the Singhs placed title to the lots in the names of others, including the plaintiffs, without their knowledge or consent. The Singhs then obtained mortgage loans in the names of those to whom the lots had been unwittingly deeded. Those mortgages were given to the mortgagees. The plaintiffs allege that the Singhs maliciously stole their names and credit histories and allowed the mortgages to go into default with no risk to the Singhs' credit rating. The plaintiffs allege these mortgages were forged and void.¹ The plaintiffs allege that the properties were sold or leased and the profits retained by the Singhs.

The mortgagees moved to dismiss the third amended complaint asserting that it failed to allege facts that would constitute a basis for granting an equitable lien having priority over the recorded mortgages. The trial court granted the motion to dismiss with prejudice. We reverse.

The third amended complaint alleges sufficient facts indicating that the mortgages in question were forged. The complaint alleges that the Singhs arranged for mortgages to be forged to various financial institutions, in the names of, among others, the plaintiffs. A forged mortgage is void, a legal nullity. See Southeast Bank, N.A. v. Sapp, 554 So.2d 1193 (Fla. 1st DCA 1989),rev. denied, 564 So.2d 1087 (Fla. 1990). If a void mortgage is ultimately established, the mortgagees may have an equitable lien but such a lien would be compared to that of the plaintiffs, who provided the consideration for the purchase of the lots. Determination as to superiority of the liens cannot be made by way of a motion to dismiss.

The mortgagees maintain that the complaint incorrectly characterizes the mortgages as "forged." The mortgagees assert that the...