Florida/Georgia Personal Injury & Workers Compensation

...not pledge them along with the land, *625 thus incumbering them with a contract lien, as security for a debt? Id. 128 So. at 245. However, if such an assignment was given for the purpose of securing the payment of money, it falls within the ambit of § 697.01, Florida Statutes, and is subject to the same rules of foreclosure as are prescribed for ordinary mortgages....

...iver in a foreclosure proceeding."). The parties are not permitted to subvert this requirement by entering into a separate assignment of rent agreement, for as long as that assignment secures a debt, it is deemed subject to the rules of foreclosure. § 697.01, Florida Statutes; See also, Four Star Aviation, supra....

...Thus, these installment payments were no more separate and distinct "sales" (as Plaintiffs argue) than are continuing payments under a mortgage. Indeed, under Florida statutory law, installment land sales contracts such as these are treated as mortgages. § 697.01 Fla.Stat....

...*296 Moreover, we concur with the decision of the District Court of Appeal for the First District in Mid-State Investment Corporation v. O'Steen, Fla.App. 1961, 133 So.2d 455, holding that an installment land sale contract is in essence a mortgage, and pursuant to Fla. Stat. § 697.01, F.S.A., the safeguards for the debtor and the remedies for the creditor are the same as those between a mortgagor and mortgagee....

...appeal, but its main argument seems to revolve around the question of the validity of the above-quoted repossession provision in the contract. We think, and we hold, that the contract involved in this appeal falls within the ken of the provisions of Section 697.01, Florida Statutes, F.S.A., which reads in pertinent part: "697.01 Instruments deemed mortgages "All conveyances, obligations conditioned or defeasible, bills of sale or other *457 instruments of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing...

...d' lienholder could not have an allowable secured claim under § 506(a). . . . In other words, the trigger for Justice Thomas's protection of rights analysis is the existence of a lien, not the presence of value to support that lien.") [4] FLA.STAT. § 697.01(1) provides: "[a]ll conveyances, obligations conditioned or defeasible, bills of sale of 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 ....

...With this in view we must next consider the legal effect of O'Connor's Assignment of Contract to Anchorage Mortgage Company, the agreement to reassign accompanying this Assignment, and the "Modification of Assignment of Contract." Plaintiff contends that these instruments fall within the provisions of § 697.01, Fla....

...favor of Anchorage Mortgage Company dated the same day as the assignment and agreement to reassign. The "Modification of Assignment of Contract" *746 has the effect of merely increasing the amount secured by the assignment. The statute in question, § 697.01, Fla....

...securing the payment of money. Pittman v. Milton, 1915, 69 Fla. 304, 68 So. 658. Applying these rules to the instruments before us, it becomes clear that they were given for the purpose of securing the payment of money and fall within the purview of § 697.01, Fla....

...are prescribed in relation to mortgages". MidState Investment Corporation v. O'Steen, 133 So.2d 455 (1st DCA Fla. 1961); Huguley v. Hall, 157 So.2d 417 (Fla. 1963) [dicta]; H & L Land Company v. Warner, 258 So.2d 293 (2nd DCA Fla. 1972); Fla. Stat. § 697.01 (1973)....

...The trial court directed a verdict against the defendants. On appeal the First District Court on Appeal affirmed, holding that the forfeiture clause was ineffective because the arrangement constituted a security device, that the contract constituted a mortgage within the meaning of section 697.01, Florida Statutes, and that the defendant had no legal right to repossess the property or to trespass on it and was responsible in damages for having done so and that the defendant's remedy was an equitable foreclosure of its lien....

...In a particular instance, as perhaps in O'Steen, where the legal title is transferred to a creditor who enters into an agreement for deed with a debtor as purchaser, and the whole arrangement is but a device to secure a loan, the deed and agreement for deed together constitute a mortgage within the purview of section 697.01, Florida Statutes (1981)....

...ip Property is void under Florida law. c. The security interest in the Partnership Property is void in that it is not a valid mortgage. To grant a security interest in real property, the owner must deliver a mortgage to the transferee. See Fla.Stat. § 697.01 (1989)....

...ial court, that the subject property is not government owned because the city holds legal title to the property merely as security. We further find that Hialeah, Inc. is the true and equitable owner. The basis for these findings is as follows. Under section 697.01, Florida Statutes (1985), an instrument must be construed as a mortgage if, when taken alone or in conjunction with surrounding facts, it appears to have been given for the purpose of securing the payment of money....

...Holness, Fla.App. 1958, 102 So.2d 35. The courts of this state on numerous occasions have held that a deed, although absolute on its face, may be interpreted as a mortgage. See cases collected at 22 Fla.Jur., Mortgages, § 94, n. 13. Further, by the provision of § 697.01, Fla....

...red into. This may present a factual issue, but in the present posture of the case it must now be considered as true. Accordingly, in my view, appellant sufficiently pleaded that the assignment was in truth, a "lien" within the contemplation of F.S. § 697.01, F.S.A.; and he is entitled to a declaration thereof for purposes of preserving any right of redemption or other relief he deems appropriate. In this latter regard, I would concede that if the aforesaid "assignment" was a "pledge" agreement, then § 697.01, supra, doesn't apply....

...In the substance of a transaction that land is being used to secure debt it matters not the form of the transaction; both the creditor's and debtor's rights in and to the land are subject to adjudication only in equity proceedings based upon equitable principles. These equitable principles are codified in section 697.01(1), Florida Statutes, which provides as follows: 697.01 Instruments deemed mortgages....

...Nyberg, 344 So.2d 614 (Fla. 2d DCA 1977); Torcise v. Perez, 319 So.2d 41 (Fla. 3d DCA 1975); Hoffman v. Semet, 316 So.2d 649 (Fla. 4th DCA 1975); H & L Land Company v. Warner, 258 So.2d 293 (Fla. 2d DCA 1972); Mid-State Investment Corp. v. O'Steen . [7] See § 697.01(1), Fla....

...the final summary judgment in favor of KWPH. Among the facts recited in the order denying Valk's motion for partial summary judgment was that the assignment of the lease to Valk had never been recorded. In paragraph 16 of the order, the court quoted section 697.01, Florida Statutes (1995), to the effect that written instruments conveying or selling property for the purpose or with the intention of securing the payment of money are deemed to be mortgages, subject to the same rules of foreclosure:...

...s defenses other than the res judicata defense. But neither did the undisputed facts conclusively support the trial court's finding that KWPH had no notice of the assignment to Valk. The same is true of the premise for that finding, i.e., that under section 697.01 Valk's lease was, in fact, a mortgage....

...Because Valk's lease was, in the trial court's words, "cancelled by the bankruptcy court", the court held that KWPH was entitled to summary judgment. Again, the underlying premise for the trial court's conclusion was that Valk's lease must be treated as a mortgage by virtue of section 697.01, for if it was truly a lease it would not have been extinguished by the bankruptcy court's order....

...The Legislature and this court have declared that such agreements are essentially mortgages with attendant rights and remedies provided to mortgagors and mortgagees, which include the seller's remedy of foreclosure if the buyer defaults and the buyer's right of redemption. § 697.01, Fla....

...2d DCA 1972), this type of contract is essentially a security instrument which takes the place of the more traditional purchase money mortgage. Being in essence a mortgage, the enforcement of this form of contract is governed by the rules applicable to mortgage foreclosures. Section 697.01, Florida Statutes; Mid-State Investment Corporation v....

...nt. See 10 Fla. Jur., "Deeds", Section 115 and cases cited therein. Moreover, the legislature has recognized that, where the parties so intend, an instrument may be construed to be a mortgage although appearing to be otherwise *611 on its face. In F.S. 697.01, the legislature has provided: "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...

...STURGIS, C.J., and FABISINSKI, L.L., A.J., concur. NOTES [1] Brannen v. State, 94 Fla. 656, 114 So. 429. See: Montgomery v. State, 55 Fla. 97, 45 So. 879; Pepper v. Pepper, Fla. 1953, 66 So.2d 280; Fenton v. Fenton, Fla.App., 100 So.2d 659. [2] F.S. § 697.01, F.S.A....

...for the property, payable over a 20-year period in annual payments of $375.00 plus interest at the rate of 5-1/4 percent per annum. The real question here is whether the $7,500 allocated to A.C. was actually a loan to A.C. or the consideration for a bona fide sale of A.C.'s property to L.C., in view of the provision of Section 697.01, Fla....

...neous evidence which will determine the decision of the question. The attitude of the parties relative to the conveyance after its execution may also be considered." Marcus v. Hull, 1940, 142 Fla. 306, 195 So. 170, 172. The statute in question, Sec. 697.01, supra, should be liberally construed, Torreyson v....

...buyer with a purchase money mortgage back to the seller. See Purcell v. Williams, 511 So.2d 1080 (Fla. 1st DCA 1987). Such an agreement is treated under Florida law as a mortgage, and is subject to all the rules of foreclosure. Id. at 1082. See also § 697.01, Florida Statutes (1995)....

...In sum, we find that the allegations in the complaint are sufficient to plead a cause of action in usury, and for the related relief of quiet title [11] and civil theft. [12] We find nothing in the record to justify the dismissal of Count VII, which alternately pleaded for a declaration of the deed to be a mortgage, section 697.01, Blanco v....

...so as to require that assignments of mortgages be recorded via a document *801 which contains the assignment as well as containing a title indicating that is an assignment of a mortgage. There is nothing in this section that excludes leasehold mortgages from its coverage. See Fla.Stat. § 697.01 (defining mortgages)....

...gage. In Mid-State Investment Corporation v. O'Steen, 133 So.2d 455 (Fla.App. 1st, 1961), this court found that a contract containing almost the identical language as the contract now before us must be deemed to be a mortgage under the provisions of Section 697.01, Florida Statutes, and therefore is "......

...The points made on the cross assignment have been considered and held to be without merit. A deed given for the purpose of securing repayment of an obligation is deemed a mortgage foreclosable in equity and constitutes a lien to the extent of the indebtedness secured thereby. Section 697.01, Fla....

...In Bowman v. Saltsman, 736 So.2d 144, 146 (Fla. 5th DCA 1999), the court stated that a secured party under an agreement for deed cannot treat a "default as an automatic termination of the buyer's interest." This is because an agreement for deed, "under section 697.01, Florida Statutes, is a mortgage and carries all the burdens thereof including the rules relating to foreclosure and the right of redemption." Id....

...Bennett validly effected a transfer of the entireties property to him, [1] excepting only a showing, as alternatively alleged by Mr. MacGregor, that the deeds should properly be *40 regarded as creating no more than a security interest in the property. See F.S., § 697.01....

...but apparently pursuant to a "power of sale" clause in one of the promissory notes. Plaintiff thereafter sold the furniture at a private sale and subsequently brought a law action for a deficiency judgment. This Court pointed out in its opinion that § 697.01, Fla.Stats., F.S.A., provides that all mortgages, including chattel mortgages, are subject to the same rules of foreclosure and that a sale such as was held by plaintiff bank was not a permissible mode of mortgage foreclosure in Florida....

...le by adverse possession." Moore v. Musa, 198 So.2d 843, 846 (Fla. 3d DCA 1967). All written conveyances of property, either real or personal, for the purpose or with the intention of securing the payment of money shall be deemed and held mortgages, Section 697.01(1), Florida Statutes, the essential point being the intent of the parties or the object of the conveyance....

...ch is, in effect, "a security agreement by which the seller retains legal title as security for the payment of the purchase price, typically paid in installments, during the life of the debt." Florida Real Estate Practice III, § 9.12 (2d ed. 1983). Section 697.01(1), Florida Statutes (1985), provides: 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 ......

...The basic question raised on appeal is whether or not as a matter of law, under the contracts for deed, appellees, purchasers, are entitled to use and possession of the subject properties prior to making all of the installment payments required under said contracts. Section 697.01(1), Fla....

...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." In our opinion the contracts for deed were clearly intended to secure the payment of money and under § 697.01(1), Fla....

...for deed, had no right to the use or possession of the properties sold to appellees. See H & L Land Company, Inc., v. Warner, Fla.App. 1972, 258 So.2d 293, citing Mid-State Investment Corporation v. O'Steen, Fla.App. 1961, 133 So.2d 455 (construing § 697.01 Fla....

...r. and the appellees to serve as security for the repayment of money. If in view of all the circumstances the transaction resolves itself into security for the repayment of money, it is a mortgage. Brumick v. Morris, 131 Fla. 46, 178 So. 564 (1938). Section 697.01(1), Florida Statutes, allows a court to interpret an instrument in the form of a deed absolute as a mortgage: 697.01 Instruments deemed mortgages....

...However, if it is a forgery, the two are joint tenants. To impose the obligation to pay rent into the registry of the court is to decide the validity of the Quit Claim Deed and provide the remedy before the case is properly adjudicated in court. Under section 697.01, Florida Statutes (2003), "[a]ll conveyances, obligations conditioned or defeasible, bills of sale or other instruments of writing conveying or selling property ......

...ed, Bowman would get legal title [1] to the land he sought and Saltsman would end up with the property he desired with no tax consequence. This arrangement is a classic, if somewhat complicated by the tax consideration, agreement for deed and, under section 697.01, Florida Statutes, is a mortgage and carries all the burdens thereof including the rules relating to foreclosure and the right of redemption....

...note without acceleration language. The Kubanys' counsel stated that they would talk about it. Apparently, no agreement was reached. This agreement for deed is treated under Florida law as a mortgage and is subject to the same rules of foreclosure. § 697.01(1), Fla....

...e nature of the transaction, whether it was a bona fide sale or a loan. Beausejour contends that the transaction under consideration was an outright sale and not a loan to Beausejour. The relevant statute under the present circumstances is Fla.Stat. § 697.01 (1981) which states as follows: § 697.01 (1) All conveyances, obligations conditioned or defeasible, bills of sale or after instruments of writing, conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money, wheth...

...hereby the tax shall be 15 cents on each $100 or fraction thereof. On appeal, the Department contends that the first supplemental indenture of mortgage and deed of trust is a "mortgage" as defined in Florida Administrative Code Rule 12B-4.052(7) and section 697.01(1), Florida Statutes, and therefore is subject to tax under section 201.08. Rule 12B-4.052(7) and section 697.01(1) both provide that "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 ......

...Buschlen's claim that he was entitled to possession of the premises, and thus damages for the wrongful withholding of such possession, is bottomed, as it must be, on his contention that he occupied the position of owner of the leasehold interest upon the purchaser's default. This contention, however, is without merit. Section 697.01, Florida Statutes (1979), provides in pertinent part: "All conveyances ......

...District Court of Appeal of Florida, Fourth District. November 13, 2002. *225 James M. McCann of Akerman, Senterfitt & Eidson, P.A., West Palm Beach, for appellant. Manuel Farach of Nason, Yeager, Gerson, White & Lioce, P.A., West Palm Beach, for appellee. KLEIN, J. Section 697.01(1), Florida Statutes (2000) provides that all instruments of writing, conveying property for the purpose of securing the payment of money, are deemed mortgages subject to foreclosure....

...After the lender was given relief from the bankruptcy stay, the deed was recorded, and the court entered a judgment enforcing the settlement *226 agreement, ratifying the deed, and issuing a writ of possession. The borrower appeals, arguing that the deed it gave as part of the settlement is a mortgage under section 697.01(1), Florida Statutes (2000) which provides: 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 inten...

...In the Motion, the Debtor asserted that the arrangement between the Debtor and Hill constituted a mortgage, not a deed and lease-back, with the result that Hill's Complaint could not be sustained as an eviction action. To support her Motion to Dismiss, the Debtor also filed a Memorandum on Application of Section 697.01(1) of the Florida Statutes....

...he registry of the Court. On May 11, 2007, the Debtor filed a Counterclaim against Hill. In the Counterclaim, the Debtor seeks a declaratory judgment that any transfer of the Property's title from the Debtor to Hill should be deemed a mortgage under § 697.01 of the Florida Statutes....

...First, the issues raised in the State Court Action arise squarely under state law. In the initial State Court Complaint, for example, Hill asserts an action for tenant eviction, and also an action for damages for unpaid rent. Both claims are controlled by Florida law. Further, the Debtor's Counterclaim is based on § 697.01 of the Florida Statutes, entitled "Instruments Deemed Mortgages." The Counterclaim included a demand for trial by jury. None of the claims in the Complaint or Counterclaim depend on federal law or bankruptcy law for their disposition. Hill's eviction action and the Debtor's statutory claim under § 697.01 rest solely on state law, and are within the expertise of the Circuit Court for Pinellas County....

...Hill asserts that the Debtor held only a leasehold interest in the Property as of the commencement of the bankruptcy case, and that she had defaulted under the lease prior to the filing of the petition. The Debtor, on the other hand, asserts that her transaction with Hill should be deemed a mortgage under § 697.01 of the Florida Statutes, and that she is entitled to recover her ownership interest in the Property....

...In either case, the Chapter 7 Trustee has filed her Report that "there is no *795 property available for distribution from the estate over and above that exempted by law." The estate has no interest in the Property that is the subject of the State Court Action. Specifically, even if the Debtor prevails on her claim under § 697.01 and recovers her ownership interest in the Property, she has claimed the Property as exempt on her bankruptcy schedules....

...a non-core proceeding, and has no independent basis for federal jurisdiction other than § 1334(b). The State Court Complaint consists of an action for tenant eviction and an action for damages for unpaid rent. The Debtor's Counterclaim is based on § 697.01 of the Florida Statutes....

...s of a usual landlord tenant relationship. [2] While not seriously disputing the proposition that the substance of a transaction controls over form when considering the legal effect of a real estate transaction or any other business transaction, see § 697.01(1), Fla....

...of writing conveying or selling property . . . for the purpose or with the intention of securing the payment of money . . . shall be deemed and held mortgages . . ."); Rothschild Reserve Int'l, Inc. v. Silver, 830 So.2d 224, 225 (Fla. 4th DCA 2002)("Section 697.01(1), Florida Statutes (2000) provides that all instruments of writing, conveying property for the purpose *648 of securing the payment of money, are deemed mortgages subject to foreclosure."); Valk v....

...4th DCA 1981) (holding that a “mortgagee should not be required to accept a substituted security interest since a mortgagee hen is a property right_”). Moreover, Florida law gives a mortgagee the right to foreclose and reforeclose its hens. Fla.Stat. § 697.01 (1993)....

...221, 45 So. 23 (1907). However, we agree with Equitable that although there is no authorizing court rule, under the particular provisions of this contract and the circumstances of this case, the contract is one of those instruments deemed a mortgage under section 697.01, Florida Statutes (1983), subject to the same rules of foreclosure, and that section 702.06, Florida Statutes (1983), applies to authorize entry of a deficiency judgment in this case....

...rling, and King. We agree. In count one of their complaint, the Braces sought a declaration that the "payments" they had made to King/Sterling— and that King/Sterling accepted— "constituted a mortgage on the subject property pursuant to Fla. Stat. § 697.01." Section 697.01, Florida Statutes (2006), provides that "[a]ll conveyances, obligations conditioned or defeasible, bills of sale or other instruments of writing conveying or selling property ......

...Although poorly stated, the essence of the complaint is that the Braces are seeking a judgment interpreting their rights contained in their written contract with Comfort as related to Comfort's contractual rights with King/Sterling. That is, in asking that the payments be declared a mortgage pursuant to section 697.01, they are asking that the lease with option to purchase agreement between Comfort and King/Sterling be considered a mortgage under the statute and that the payments they made pursuant to the assignment of the lease/option agreement via their contract with Comfort be declared mortgage payments....

...First, we note that the cases cited by the Banks do not deal with the taxability of mortgages and, furthermore, were all decided prior to the 1977 amendments. More importantly, at the time the Legislature amended Section 201.08(1) to include mortgages, Section 697.01(1), Florida Statutes (1977), was in existence and specifically recognized that mortgages as a class of instruments can be conditioned or defeasible....

...Furthermore, "[t]he general rule of legislative construction ... favors a construction which gives each [enactment] a field of operation, rather than have one meaningless or repealed by implication." City of Punta Gorda, 294 So.2d at 29. At the time of the 1977 amendments, Section 697.01(1) was in existence and defined mortgages as being "conditioned or defeasible." Thus, it is clear that the Legislature expressly intended to put this conditional or contingent type of document into the class of documents subject to the...

...As specified in the statutory language, it is the "mortgage" (a written document) and "other evidences of indebtedness" that are taxed upon being "filed or recorded". The tax is not on the debt, but rather, it is on the document and the recording of that document. Affirmed. NOTES [1] Section 697.01(1) provides: 697.01 Instruments deemed mortgages....

...the note and chattel mortgage ; that if the first contention is followed the plaintiff is not entitled to a deficiency judgment, and if the second method is used the statutory rules of foreclosure must be followed. The defendant claims that Sections 697.01 and 698.03, Florida Statutes, F.S.A., prohibits a private power of sale in this instance, and therefore the trial court judge erred in granting the summary judgment for the plaintiff.' The plaintiff contends that the collateral note was sued o...

...684, 687 (bill of sale); Hull, et al. v. Burr, 1909, 58 Fla. 432 , 50 So. 754 , 757 (deed of conveyance); Wylly-Gabbett Co. v. Williams, 1907, 53 Fla. 872 , 42 So. 910 , 929 (assignment to trustee). If this instrument is then taken as a mortgage, it must come within Section 697.01 of the Florida Statutes, F.S.A., which provides: “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 t...

...Costello that these transactions, although having the appearance of conveyance, in reality constituted a loan secured by a mortgage on the subject property. Mrs. Costello seeks an order construing the relevant documents as a mortgage on the real estate pursuant to Florida Statute § 697.01 in order to reflect what she contends was the mutual intent of the parties at the time of the transaction....

...Considering the respective contentions of the parties, seriatim, the initial inquiry must be addressed to the question whether or not the relevant documents shall be accepted for what they are purported to be or should be construed as a mortgage to reflect the intent of the parties pursuant to Florida Statutes § 697.01 which provides as follows: "697.01....

...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. Section 697.01(1), Florida Statutes (1981)....

...es not convert the transaction into a mortgage. Holmberg v. Hardee, 90 Fla. 787, 108 So. 211 (1926). The party contending that a transaction, which on its face appears to be a conveyance, should be deemed to be a mortgage pursuant to Florida Statute § 697.01 has the burden of establishing the intent of the parties by a preponderance of the evidence....

...In light of the foregoing, the Court is satisfied that the Plaintiff failed to meet her burden of proving by a preponderance of the evidence that both parties intended the transaction to be a mortgage rather than a conveyance as required to apply Florida Statutes § 697.01....

...SIH claims the quitclaim 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 p...

...resentations made, no irreparable injury has been shown. We additionally note that the trial court has not yet made any findings regarding the legal validity or effect of the quit-claim deed, nor whether SIH is entitled to the rights and benefits of section 697.01....

State Oil Company comes within the purview of Section 697.01 Fla. Statutes 1941 (same F.S.A.) and was made

...mption; .... Defendants argue that because the note was ineffective under Florida law to effect a transfer of an interest in debtors’ realty, no “transfer” within the meaning of § 101(50) took place. Defendants’ position is based in part on § 697.01, Florida Statutes (“Instruments Deemed Mortgages”) and § 697.02, Florida Statutes (“Nature of Mortgage”). Those statutes provide: 697.01 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, ......

...The contract was not fulfilled and the Terrys, the sellers, sued the Johnsons for its breach. The trial court dismissed the complaint with finality correctly determining that the underlying document was in the nature of a mortgage or security instrument within the meaning of section 697.01, Florida Statutes (1985), thus requiring a foreclosure proceeding to accomplish its enforcement....

...1st DCA 1963), in which this court determined that the dismissal of a complaint for failure to state a cause of action on one pleaded theory does not create a bar to the filing of an action on a different theory of recovery. The Terrys urge the view that section 697.01 armed the Johnsons with an affirmative defense but it was waived by not having been raised by motion or in the responsive pleading....

...4th DCA 1982) (such motion can be made as late as the trial of an action but not thereafter). The facts alleged in the Terrys’ complaint stated a cause of action remediable through foreclosure, but not upon the claim that the Johnsons breached the contract. Thus, the trial court properly considered the section 697.01 defense raised for the first time by the Johnsons at trial....

...Andrews, 573 So.2d 113 (Fla. 2d DCA 1991) and Mailman Dev. Corp. v. Segall, 403 So.2d 1137, 1137 (Fla. 4th DCA 1981). As the Zipperer court recognized: *1268 Florida law gives a mortgagee the right to foreclose and reforeclose its hens. Fla. Stat. § 697.01 (1993)....

foreclose and refore-close its liens. Fla. Stat. § 697.01 (1993). Therefore, a mortgage is a cause of action

...4th DCA 1981) (holding that a “mortgagee should not be required to accept a substituted security interest since a mortgagee lien is a property right . . . .”). Moreover, Florida law gives a mortgagee the right to foreclose and reforeclose its liens. Fla. Stat. § 697.01 (1993)....

..."A promissory note is a contract evidencing a debt and specifying terms under which one party will pay money to another." Id. A mortgage is "not a promise to pay a debt; it is an interest in [real property] that a lender can take if a debtor does not fulfill a payment obligation.” See Id., see also Fla. Stat. § 697.01 (1) (identifying documents deemed to be mortgages under Florida law); Id....

consistent herewith. Reversed and remanded. . Section 697.01, Florida Statutes, F.S.A.: “All conveyances

...That was error. Section 733.702(4) excludes proceedings to enforce hens and mortgages from the operation of the non-claims statute. This was such an action. It would be premature to consider whether the language on the note is sufficient to satisfy section 697.01, Florida Statutes (1993), or whether some other defect of form or substance may ultimately defeat recovery....

...the amount of some $31,000 at the time of trial. It is likewise shown from the record that there was due the appellant from the third party some $98,000, a sum which the appellee sought to secure under the terms of its purported absolute assignment. Section 697.01, Fla....

...Frissell dealt with an executory contract, a lease/option which the lessee had not yet exercised before his death. The present case, however, involves an executed agreement for deed. An agreement for deed is deemed to be a mortgage and subject to the same rules of foreclosure as a mortgage. See § 697.01, Fla.Stat....

...Having reached the conclusion that the trust agreement was executed for the purpose of securing the payment of the debt of the Trustor and was not such assignment for the benefit of creditors as is controlled by Chapter 727 Fla. Statutes, 1941 (same FSA), it follows that the instrument comes within the purview of Section 697.01 Fla....

...rrounding the transaction to discern the parties' intent. New Beginnings counters that the transaction documents were unambiguous, and that the record did not show the Bernsteins misunderstood them or did not know what they were signing. Pursuant to section 697.01(1), Florida Statutes, written instruments conveying or selling property for the purpose or with the intention of securing the payment of money are deemed to be mortgages....

...where the parties so intend, an instrument may be construed to be a mortgage although appearing to be otherwise on its face"). It is the substance and not the form that is critical. Blanco, 854 So.2d at 674. Florida courts have liberally interpreted section 697.01(1) and, when in doubt, "have leaned in favor of construing the deed as a mortgage and have taken into consideration the entire transaction and circumstances in addition to the agreement *95 and instrument of conveyance itself." Barr, 314 So.2d at 611....

PER CURIAM. Chancellor in this cause determined that a deed was' in actuality a mort *75 gage under Section 697.01, Fla.Stat., F.S.A....

...221 , 45 So. 23 (1907). However, we agree with Equitable that although there is no authorizing court rule, under the particular provisions of this contract and the circumstances of this case, the contract is one of those instruments deemed a mortgage under section 697.01, Florida Statutes (1983), subject to the same rules of foreclosure, and that section 702.06, Florida Statutes (1983), applies to authorize entry of a deficiency judgment in this case....

Equity, 112-390; Story’s Equity Pleadings, section 697; 1 Daniell’s Chy. Pl. & Pr., *696-7. See, also

...re was no proof that it had been received or recorded by that agency. We find that there was sufficient, competent and substantial evidence in the record to uphold the finding of the trial judge that Jovan Corporation had a lien on the aircraft. See § 697.01, Fla.Stat, F.S.A.; Marcus v....

the deed could be deemed a mortgage under section 697.01(1), Florida Statutes (1979). Equity peculiarly

...And you were representing the seller? A. Yes. Q. You weren't looking at Miss Kirkland's interest in this, correct? A. That's true, but the buyer obtained a benefit as well. Q. From the seller's standpoint it was to avoid foreclosure, your clients? A. Yes. Section 697.01, Florida Statutes (1985), provides: 697.01 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...

...r 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. § 697.01, Fla....

...5th DCA 1986), the transaction at issue here was not a valid Illinois land trust; it was a mortgage securing indebtedness. It is uncontradicted the sellers and Kirkland each intended that the conveyance would secure the payment of money, as provided in section 697.01, Florida Statutes (1985)....

mortgage but an agreement for deed is incorrect. Section 697.01, Florida Statutes, provides: 697.01 Instruments

...is action below. There is however, no claim of possession by either of the parties to this appeal. Appellant contends that 1) the original conveyance from Richards Land Development Corporation to Di Costanzo, as trustee, constitutes a mortgage under 697.01 F. S.A. and 2) was invalid as such since said conveyance was given as security for Berkowitz’s personal debt. On the basis of the record the latter contention is without merit, so we shall deal only with appellant’s first contention. F.S. Section 697.01 F.S.A....