Young v. Charnack

• Decision Date: 04 June 1974
• Docket Number: No. 73--53,73--53
• Citation: 295 So. 2d 665
• Parties: Paul R. YOUNG and Irene A. Young, his wife, Appellants, v. Max B. CHARNACK et al., Appellees.
• Court: Florida District Court of Appeals

Page 665

295 So.2d 665

Paul R. YOUNG and Irene A. Young, his wife, Appellants, v.Max B. CHARNACK et al., Appellees.

No. 73--53.

District Court of Appeal of Florida, Third District.

June 4, 1974.

Ainslee R. Ferdie, Miami, for appellants.

Broad & Cassell and Lewis Horwitz, Miami Beach, Lawrence G. Ropes, Jr., Coral Gables, Klein, Kass & Tannenbaum, Ocala, Herbert Stettin, Miami, for appellees.

Before PEARSON, CARROLL and HAVERFIELD, JJ.

CARROLL, Judge.

Max B. Charnack and Blanche Charnack his wife filed this action to foreclose a first mortgage encumbering real estate.The mortgage secured a note made to plaintiffs by the owners, the defendantPaul R. Young and Irene A. Young, his wife, in the principal sum of $2,900, payable in monthly installments of $50.Other defendants in the action included the First National Bank of Miami Springs, alleged to hold a junior mortgage interest, and the holders of a superior judgment lien, Klein, Kass & Tannenbaum.¹

During the pendency of the foreclosure action the note and mortgage were lost, when mailed by plaintiffs to their attorneys and not received by the latter.Also, the plaintiffs transferred and assigned their interest in the note and mortgage to Milton Rothman.An amended complaint was filed alleging the loss of the note and mortgage and seeking the re-establishment thereof as lost instruments.An order was made substituting Rothman as the plaintiff.

The defendant bank answered, and cross-claimed alleging default in the indebtedness secured by its junior mortgage, in an amount in excess of $32,000, and seeking foreclosure thereof.The above named holders of a judgment, the lien of which was prior in dignity to the first mortgage, cross-claimed for 'foreclosure' of their said judgment.

A defensive pleading filed by the defendant mortgagor-owners Young and wife averred that the real property involved was a homestead.Therein they admitted liability on the first mortgage obligation, expressing doubt as to the unpaid balance thereof; averred the effort of the bank to foreclose its junior mortgage in this action was improper in view of the pendency of a separate action the bank had filed for the foreclosure thereof; and contended the effort of the bank to foreclose the same in this action should be transferred to their already pending separate action for foreclosure; and additionally it was there contended that the effort of the said judgment holders to enforce their judgment in equity in this action was improper.

On motions for summary judgment filed by the plaintiff and by said cross-claimants, summary judgment was entered in favor of the plaintiff for foreclosure of the first mortgage holding there was due thereunder for principal, interest and attorney's fees the sum of $2,226.75; and summary judgment was entered in favor of the cross-claimant bank for foreclosure of its junior mortgage lien for the amount of $32,471.40.Also, the judgment included summary judgment in favor of Klein, Kass & Tannenbaum directing payment of the amount of their said judgment (which was shown to be $432 plus interest from October 23, 1962) out of the proceeds of the foreclosure sale, ahead of payments therefrom to the plaintiff-mortgagee.The defendants Young and wife appealed.

Appellants' first contention is that the court committed error, in the...