New England Mut. Life Ins. Co. v. Luxury Home Builders, Inc., 74--1673
Decision Date | 08 April 1975 |
Docket Number | No. 74--1673,74--1673 |
Parties | NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, a Massachusetts Corporation, Appellant, v. LUXURY HOME BUILDERS, INC., a dissolved Florida Corporation, et al., Appellees. |
Court | Florida District Court of Appeals |
Shutts & Bowen and William J. Kendrick, Miami, for appellant.
Alan S. Rosenthal, Miami Beach, and Gerald E. Fine, N. Miami Beach, for appellees.
Before BARKDULL, C.J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
The appellant filed this action against the last known directors of Luxury Home Builders, Inc., a dissolved Florida corporation, as trustees of the property of said corporation, the owner of the property involved, for the foreclosure of two mortgages thereon.
One of the mortgages, made on June 4, 1964, was given by D. H. Overmyer Warehouse Company of Florida to the First National Bank of Miami, to secure a promissory note of that date from the former to the latter, in the principal sum of $600,000. The note provided for payment of interest at the rate of five and three quarters percent per annum until January 1, 1965 or until the note was 'assigned' to New England Mutual Life Insurance Company, whichever should be sooner, and thereafter at the rate of six percent per annum. The note and the mortgage contained acceleration clauses.
The note provided for payment of the principal and interest in 79 installments of $12,930, payable on the first days of January, April, July and October of each year. By a written agreement of the parties, made on March 15, 1965, the times for payments under the note and mortgage were changed to require the payment of such installments to be made on the first days of March June, September and December of each year, with the first such payment to become due on June 1, 1965, and the last of such payments to be due on January 1, 1985.
On March 15, 1965 the said note and mortgage were transferred and assigned by the mortgagee to New England Mutual Life Insurance Company.
On June 1, 1965 the mortgagor made and delivered to New England Mutual Life Insurance Company a promissory note for $40,000, at interest of six percent per annum, with provision for payment of principal and interest in quarterly installments of $862, to commence on September 1, 1965. That note was secured by a second mortgage made by the warehouse company to the insurance company. Both that note and the mortgage contained an acceleration clause. On June 3, 1965 those parties entered into an agreement whereby the mortgagor covenanted that a default under the second mortgage would constitute a default under the first mortgage.
Thereafter, the mortgagor sold the premises to Luxury Home Builders, Inc., subject, of course, to the said mortgages. This action was filed against the latter owner to foreclose the two mortgages, upon alleging that the installment payments due under the two mortgages on September 1, 1973 were not paid, and alleging the plaintiff had declared election to accelerate the unpaid and remaining indebtednesses thereunder, by giving notice thereof on March 5, 1974.
In response to the action to foreclose the defendant filed a pleading entitled 'Petition for Equitable Relief'. It was signed by counsel only, and was not verified. Therein the defendant alleged that upon purchasing the mortgaged premises from the mortgagor it had leased the premises back to its grantor (the mortgagor) for a period of twenty five years at an annual rental of $75,168, and that its inability to maintain the payments on the first and second mortgages, 1 and the defaults thereunder, were the result of its lessee having defaulted under the lease.
Plaintiff moved to strike the petition. Following a hearing the court denied the motion to strike and granted the petition, without further evidence or proofs, and ordered that the mortgages be reinstated upon payment to the plaintiff of the amounts past due thereunder, plus certain attorney's fees. The plaintiff filed an appeal and an interlocutory appeal therefrom. We deal with the matter on the appeal.
Financial inability of a mortgagor (or of his grantee)...
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