VELAZQUEZ v. SERRANO
| Decision Date | 28 July 2010 |
| Docket Number | No. 3D09-609.,3D09-609. |
| Citation | 43 So.3d 82 |
| Parties | Ana VELAZQUEZ, Appellant, v. Armando SERRANO, et al., Appellees. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Mario A. Lamar; Arnaldo Velez, Coral Gables, for appellant.
Adorno & Yoss and Philippe W. Devé, Miami, and Jordan S. Kosches, for appellees.
Before WELLS, ROTHENBERG, and LAGOA, JJ.
Appellant, Ana Velazquez ("Velazquez"), appeals from a final judgment entered in favor of appellee Deutsche Bank, N.A. Because the trial court erred in entering summary judgment on the grounds that Deutsche Bank's mortgage is senior to Velazquez's mortgage, we reverse the final judgment.
On July 22, 2005, Velazquez sold certain real property to Armando Serrano; the closing documents reflected a sales price of $320,000. At the closing, Serrano executed two purchase money mortgages in favor of Hayhurst Mortgage, to secure notes for $256,000 and $64,000. The Hayhurst mortgages were recorded on August 11, 2005.
In October 2006, Serrano executed a promissory note in favor of Velazquez for $29,000, reflecting the actual sales price of $340,000.1 The note was secured by a mortgage that was recorded on October 25, 2006, and it included a due-on-sale clause. This clause permitted Velazquez to declare the remaining loan balance immediately due and payable if the property was sold or transferred.
On November 28, 2006, Serrano sold the property to Ana Montes and Cecilio Mejia for $395,000. Montes executed a promissory note for $375,250 in favor of WMC Mortgage Corp. The note was secured by a mortgage that was recorded on December 6, 2006. At closing, the funds obtained from WMC were used to satisfy the Hayhurst mortgages and a portion of the remaining funds (approximately $30,000) were paid to Serrano. At the time of the Montes/Serrano closing, the endorsement to the title insurance commitment did not note the Velazquez mortgage and it was not paid off.
The WMC mortgage was subsequently assigned to Deutsche Bank.
In 2007, Velazquez and Deutsche Bank filed separate foreclosure actions when Serrano and Montes each defaulted on their respective mortgage. The actions were consolidated. Deutsche Bank also filed a counterclaim in the Velazquez action to establish its priority over the Velazquez mortgage. Both parties sought summary judgment, with Deutsche Bank asserting that it was entitled to an equitable lien based on its satisfaction of the Hayhurst mortgages, which were recorded prior to the Velazquez mortgage.
The trial court granted Deutsche Bank's summary judgment motion. In applying the doctrine of equitable subrogation to award Deutsche Bank's lien priority, the court stated that Velazquez would be unjustly enriched as a result of Deutsche Bank's payment of the Hayhurst mortgages, which were superior to Velazquez's interest and which Velazquez would have been required to satisfy in order to claim a first lien position on the property.
On appeal, Velazquez argues that, by virtue of the recording statutes, her mortgage has priority over Deutsche Bank's mortgage and that the doctrine of equitable subrogation, an exception to the recording statutes, does not apply here. We agree.
We review an order granting summary judgment de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Equitable subrogation is generally defined as follows:
Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right. Subrogation arises by operation of law, where one having a liability or a right or a fiduciary relation in the premises pays a debt due by another under such circumstances that he is, in equity, entitled to the security or obligation held by the creditor whom he has paid.
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¦[ 43 So.3d 84 ]¦
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Boley v. Daniel, 72 Fla. 121, 72 So. 644, 645 (1916). Subrogation "is not allowed if it works any injustice to the rights of others." Fed. Land Bank of Columbia v. Godwin, 107 Fla. 537, 145 So. 883, 885 (1933); see...
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Nikooie v. JPMorgan Chase Bank, N.A.
...applies when "one person" is appropriately substituted "in the place of another," relying upon the analysis in Velazquez v. Serrano, 43 So.3d 82, 83–84 (Fla. 3d DCA 2010), and the Restatement (Third) of Property: Mortgages section 7.6. In this case, Washington Mutual paid off Washington Mut......
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Sherman v. Deutsche Bank Nat'l Trust Co.
...Finding insufficient record support for the application of the doctrine of equitable subrogation—as in the case of Velazquez v. Serrano, 43 So.3d 82 (Fla. 3d DCA 2010), also involving Deutsche Bank—we reverse and remand the case for further proceedings.Facts and Procedural Background In 200......
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Sherman v. Deutsche Bank Nat'l Trust Co.
...Finding insufficient record support for the application of the doctrine of equitable subrogation—as in the case of Velazquez v. Serrano, 43 So. 3d 82 (Fla. 3d DCA 2010), also involving Deutsche Bank—we reverse and remand the case for further proceedings. Facts and Procedural Background In 2......
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AG Grp. Invs., LLC v. All Realty Alliance Corp., 3D11-2547
...circumstances that he is, in equity, entitled to the security or obligation held by the creditor whom he has paid." Velazquez v. Serrano, 43 So. 3d 82, 83 (Fla. 3d DCA 2010) (internal citation omitted). Equitable subrogation is not available in circumstances where its use would place credit......
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Whose shoes to use: achieving a subrogation footing in the wave of foreclosures.
...due and owing on the first mortgage. A few months later in 2010, the Third DCA took a much more expansive view in Velazquez v. Serrano, 43 So. 3d 82 (Fla. 3d DCA 2010). Senchuk and Velazquez have very similar facts and present an apparent In Senchuk, the Senchuks executed a first mortgage i......
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Chapter 5-4 Priority of Interests and Florida's Recording Act
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