Madonna Corp. v. FDIC

• Decision Date: 15 June 1990
• Docket Number: No. 89-02352.,89-02352.
• Citation: 563 So.2d 763
• Parties: MADONNA CORP. and Delverde, Inc., Doing Business As Tierra Verde Company, a Joint Venture, Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, in Its Corporate Capacity, Appellee.
• Court: Florida District Court of Appeals

563 So.2d 763

MADONNA CORP. and Delverde, Inc., Doing Business As Tierra Verde Company, a Joint Venture, Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, in Its Corporate Capacity, Appellee.

No. 89-02352.

District Court of Appeal of Florida, Second District.

June 15, 1990.

Joseph Mancilla, Jr. of Mancilla & Betz, P.A., Coral Gables, for appellants.

William C. Ballard and Anthony J. Russo of Fisher & Sauls, P.A., St. Petersburg, and Mark I. Rosen, Deputy Gen. Counsel, Ann S. DuRoss, Asst. Gen. Counsel, and Jaclyn C. Taner, Sr. Atty., Federal Deposit Insurance Corp., Washington, D.C., for appellee.

FRANK, Acting Chief Judge.

The questions of law we respond to in this matter arise from the demise of the Park Bank (the Bank) in Pinellas County and the assumption of its assets by the appellee, Federal Deposit Insurance Corporation (FDIC). The trial court granted the FDIC's motion for a summary judgment and we affirm.

The setting leading to our conclusions may be summarized as follows:

On or about August 11, 1978, the appellant, Tierra Verde, entered into a contract for deed with Caru Corporation as the purchaser of the property that is the subject of this foreclosure action. Upon the completion of all payments due Tierra Verde, Caru was to receive the deed. On August 16, 1982, however, Caru filed a petition under Chapter 11 of the Bankruptcy Code in the United States District Court of the Middle District of Florida. At the moment of that event, Tierra Verde continued to hold its secured claim against the property. Tierra Verde, through its parent organization, Deltona, filed an adversary proceeding in the bankruptcy court in order to protect its secured status. To settle the controversy, Caru and Deltona (or Tierra Verde) entered into a joint motion seeking an order approving a settlement agreement. The settlement agreement was approved by the bankruptcy court on July 27, 1984. Pursuant to that document's provisions, Tierra Verde converted the contract of purchase to a mortgage and note, the terms of which were to be the same as the earlier Caru/Tierra Verde contract for deed. The contract for deed, however, is not to be found in the record before us. Nonetheless, because of language alleged to be contained in that contract conferring a first mortgage standing upon Tierra Verde, it contends it has a first lien on the property.

On August 29, 1984, Caru filed a notice in the bankruptcy proceeding of its intention to sell the property to an attorney, W. Thompson Thorn, III, with a copy of the Thorn contract of sale attached to the notice. That contract called for the purchase to be subject to Tierra Verde's mortgagee interest in the property. On August 28, 1984, it appears that Thorn obtained a loan commitment from the Bank to fund his purchase of the Caru property, and on December 21, 1984, he gave the Bank a note and mortgage on the property to secure the loan. He also executed a note and a mortgage on December 26, 1984, encumbering the property in favor of Tierra Verde. Thorn assumed the task of recording the Bank's and Tierra Verde's mortgages but he recorded his December 21 mortgage given to the Bank prior to recording the Tierra Verde mortgage.

Thorn defaulted in his mortgage obligation to the Bank. On February 13, 1985, the day prior to the FDIC's takeover of the Bank, Thorn tendered a deed to the bank assertedly in lieu of foreclosure. That deed was not recorded and any understanding Thorn may have reached with the Bank in the nature of an accord, designed to forestall the foreclosure of his interest in the property and exonerating him from further liability under the note, was not memorialized.

Tierra Verde attempted to reopen the bankruptcy action. When that effort failed it responded to the FDIC complaint and pleaded in counter and cross claims that FDIC's lien was subordinate to its position as mortgagee. Tierra Verde has grounded its claim to a status superior to that of the FDIC upon two considerations. Its first contention is bottomed upon the notion that Thorn's deed in lieu of foreclosure vested full title to the property in the Bank, thus terminating Thorn's indebtedness to the Bank, resulting in the Bank assuming the obligation to satisfy the Tierra Verde mortgage executed by Thorn. It next points to the settlement agreement approved by the bankruptcy court which it contends incorporated the provisions of the Caru/Tierra Verde contract for deed thus endowing the Tierra Verde mortgage stemming from the bankruptcy settlement agreement with a primary position. The record, as we noted above, does not contain the Caru/Tierra contract for deed, an instrument essential to Tierra Verde's claim of equitable entitlement to a first mortgage position.

Turning to that aspect of this case which is central to Tierra Verde's major position — Thorn's deed to the Bank in lieu of foreclosure — we are persuaded beyond any doubt that whatever understanding Thorn and the Bank reached in that regard, if one was, indeed, reached, it cannot serve now to defeat the ability of the FDIC to foreclose the Thorn mortgage held by the Bank. In spite of Thorn's deposition indicating that an officer of the Bank agreed to accept his deed in lieu of foreclosure, the record is barren of any independent evidence to support the Bank's concurrence in that scheme.

"It has long been the law of Florida that it is essential to the validity of a deed of land that there be a voluntary delivery of it by the grantor to the grantee or to someone on his behalf, and an acceptance thereof by him with the mutual intention of the parties to pass title to the land." (Emphasis added).

Jeffords v. Jeffords, 148 So.2d 43, 44 (Fla. 1st DCA 1962).

It is obvious at this point in our analysis that a question of fact emerges with respect to whether the Bank accepted the deed thus, but only for a moment, casting doubt upon the propriety of granting a summary judgment for the FDIC. Whittimore v. Cruce, 479 So.2d 761 (Fla. 1st DCA 1985). That doubt is eradicated by 12 U.S.C. § 1823 (e), which provides that:

No agreement which tends to diminish or defeat the right, title or interest of the Corporation in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the Corporation unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and

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