State Inv. Holding, Inc. v. Merrick P'ship, LLC

• Court: Florida District Court of Appeals
• Writing for the Court: ROTHENBERG
• Citation: State Inv. Holding, Inc. v. Merrick P'ship, LLC, 103 So.3d 232 (Fla. App. 2013)
• Decision Date: 11 January 2013
• Docket Number: No. 3D11–2369.,3D11–2369.
• Parties: STATE INVESTMENT HOLDING, INC., Appellant, v. MERRICK PARTNERSHIP, LLC, et al., Appellees.

103 So.3d 232

STATE INVESTMENT HOLDING, INC., Appellant,

v.MERRICK PARTNERSHIP, LLC, et al., Appellees.

No. 3D11–2369.

District Court of Appeal of Florida, Third District.

Dec. 12, 2012.

Rehearing Denied Jan. 11, 2013.

N. Fraser Schuh, Hallandale, for appellant.

Glenn L. Widom, Miami, for appellee.

Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.

ROTHENBERG, J.

State Investment Holding, Inc. (“SIH”) appeals the trial court's nonfinal order denying its motion for entry of a temporary injunction, which sought: a (1) finding that the quit-claim deed recorded by appellee Merrick Partnership, LLC (“Merrick”) was not a valid conveyance, and therefore, SIH remains the owner of the property; and (2) to enjoin the appellees from exercising any rights of ownership as to the property. Based on the evidence presented and the representations made by the appellees through their counsel, we find no abuse of discretion, and thus we affirm.

SIH's lawsuit concerns commercial property originally encumbered by two mortgages, which were both in foreclosure: a first mortgage held by Mercantile Commerce Bank, N.A. (“Mercantile”); and a second mortgage held by S & G Financial Services of South Florida, Inc. (“S & G”). In 2009, a settlement was negotiated to resolve both foreclosure actions. SIH's obligations to Mercantile and S & G were satisfied; S & G and CMA Florida Holdings, LLC (“CMA”), refinanced SIH's indebtedness; and the foreclosure actions were dismissed with prejudice. Pursuant to the settlement agreement, SIH was required to execute a new mortgage with S & G with a first priority lien encumbering the property, and a new mortgage with CMA, which was to receive a second priority lien encumbering the property. The refinancing of the property was conditioned on SIH's executing a quit-claim deed on the property, and an escrow agreement providing that in the event of a default in SIH's payments, the quit-claim deed would be recorded.

Without belaboring the point, it is alleged that SIH defaulted, and thereafter, the quit-claim deed was recorded, thereby passing ownership from SIH to Merrick Partnership, LLC. SIH claims the quit-claim deed did not lawfully convey title to the property to Merrick. SIH contends the quit-claim deed was provided as security for the repayment of SIH's indebtedness to Merrick and CMA, and as such SIH is entitled to the benefits and protections of section 697.01, Florida Statutes (2011), which provides as follows:

Instruments deemed mortgages

(1) All conveyances, obligations conditioned or defeasible, bills of sale or other instruments of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money, whether such instrument be from the debtor to the creditor or from the debtor to some third person in trust for the creditor, shall be deemed and held mortgages, and shall be subject to the same rules of foreclosure and to the same regulations, restraints and forms as are prescribed in relation to mortgages.

SIH contends the quit-claim deed was given as security for the payment of its debt and thus it must be deemed a mortgage and made the subject of a mortgage foreclosure action. Accordingly, SIH argues the quit claim deed cannot be used to terminate its interest in...