CopyCited 24 times | Published | District Court, N.D. Florida | 1995 U.S. Dist. LEXIS 11519, 1995 WL 488330
...ebts arise. Butner v. United States,
440 U.S. 48, 55-57,
99 S.Ct. 914, 918-19,
59 L.Ed.2d 136, 141-43 (1979). Under Florida law, an assignment of a mortgage on real property becomes effective against subsequent purchasers for value upon recordation. §
701.02(1), Fla.Stat....
CopyCited 18 times | Published | Florida 1st District Court of Appeal | 23 U.C.C. Rep. Serv. (West) 1020
...iates, Inc., supra . Generally, the banking industry in Florida does not consider real estate mortgages as covered by Article 9. Rather, it considers that its interest in a real estate mortgage is protected by recording the assignment as required by Section 701.02, Florida Statutes (1975)....
CopyCited 14 times | Published | United States Bankruptcy Court, S.D. Florida.
...Shoe Co. v. Pinkus,
278 U.S. 261,
49 S.Ct. 108,
73 L.Ed. 318 (1929). Under Florida law, this court concludes that plaintiffs would have no ownership interest in any of the mortgages sufficient to remove them from property of the estate. Fla.Stats., §
701.02(1), provides: No assignment of a mortgage upon real property or of any interest therein, shall be good or effectual in law or equity, against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless the same be recorded according to law....
...te. Even without considering the elements which are required as the basis for imposing a constructive trust, this court concludes that the Florida statute would also preclude giving any plaintiff in these cases that equitable remedy. The language of § 701.02(1) is about as clear as the legislature could make it that no unrecorded assignment of mortgage is to be enforced against creditors in law or equity....
...e debtors' business was a part, was of particular concern to Congress. It is clear that Congress was convinced that the operations of the secondary mortgage market would be jeopardized by the enforcement in bankruptcy of statutes such as Fla.Stats., § 701.02....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 1997 WL 593932
...closure: (2) Provided, however, that no such conveyance shall be deemed or held to be a mortgage, as against a bona fide purchaser or mortgagee, for value without notice, holding under the grantee. In the next paragraph of the order the court quoted section 701.02, Florida Statutes (1995), subsection (1) of which provides that no assignment of a mortgage is effective against creditors "or subsequent purchasers, for valuable consideration, and without notice" *419 unless the assignment is recorded....
CopyCited 6 times | Published | United States Bankruptcy Court, S.D. Florida. | 1993 Bankr. LEXIS 733
....This chapter does not apply: (10) Except to the extent that provision is made for fixtures in s. 679.313, to the creation or transfer of an interest in or lien on real estate, including a lease or rents thereunder; or Section 2. Subsection (1) of section 701.02, Florida Statutes, is amended to read: 701.02 Assignment not effectual against creditors unless recorded and indicated in title of document. *800 (1) No assignment of a mortgage upon real property or of any interest therein, shall be good or effectual in law or equity, against creditors...
...Thus, the Florida Legislature could not overrule established case law concerning a statute merely by passing a preamble without any corresponding change in the wording of the statute. However, Section 2 of Fla.Law ch. 89-41 did change the wording of § 701.02(1), Fla....
...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). Documents such as those referred to in §
701.02(1) are recorded in the public records of the applicable county pursuant to Fla.Stat....
...("A financing statement must be filed to perfect all security interests . . ."), and § 679.402 (UCC § 9-402) (listing the formal requisites for a UCC financing statement). Since the actual document assigning a leasehold mortgage must be filed pursuant to §§
701.02 and
695.01, and since the actual document creating a security interest under UCC Article 9 is not filed, this amendment to §
701.02(1) made clear that leasehold mortgages cannot be covered under the Florida UCC....
...Longboat Key Beach Erosion Control Dist.,
604 So.2d 452 (Fla.1992) ("it is a cardinal rule of statutory interpretation that courts should avoid readings that would render part of a statute meaningless"). Therefore, by combining the reenactment of § 679.104(10) together with the amendment of §
701.02, the Florida Legislature clarified Florida law concerning the UCC's coverage of leasehold mortgages....
CopyCited 5 times | Published | United States Bankruptcy Court, M.D. Florida | 1990 Bankr. LEXIS 2206, 1990 WL 157363
...d Development. The Debtors concede that the facts are indeed without dispute, but in opposition to the Motion contend that by virtue of Section 544(a)(3), they occupy the position of a bona fide purchaser of real property thus by virtue of Fla.Stat. 701.02 defeat the mortgage lien asserted by Citibank as a matter of law....
...ebtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser and has perfected such transfer at the time of the commencement of the case, whether or not such a purchaser exists. Fla.Stat. 701.02 entitled "Assignment not effectual against creditors unless recorded" provides (1) No assignment of a mortgage upon real property or of any interest therein, shall be good or effectual in law or equity, against creditors or subsequent purchase...
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 2221, 2009 WL 691187
...Importantly, New Millennial and BB & T did not defend by arguing that the two notes had been paid off and the mortgages satisfied. [2] Rather, they defended by arguing that the mortgages were ineffective and unenforceable against them because JP Morgan had not recorded the assignments received from AmSouth, as required by section 701.02, Florida Statutes (2004)....
...On September 11, 2007, the trial court denied JP Morgan's motion for summary judgment and granted New Millennial and BB & T's motion, finding: 1. AmSouth Bank assigned the two mortgages at issue in this case to JP Morgan Chase ("Assignments"). The Assignments were not recorded in accordance with § 701.02, Florida Statutes. *684 2. New Millennial is a subsequent purchaser for valuable consideration, was without notice of the Assignments, and is protected by § 701.02, Florida Statutes. 3. BB & T is a subsequent creditor for valuable consideration, was without notice of the Assignments, and is protected by § 701.02, Florida Statutes....
...e on the AmSouth mortgage and they were advised that the loan in question was paid in full. Moreover Defendant BB & T is a subsequent creditor for valuable consideration with no knowledge or notice of the mortgages at issue. Accordingly, pursuant to section 701.02, Florida Statutes, the mortgages at issue are not effective or enforceable against New Millennial or BB & T....
...ubsequent assignees may lawfully have, take and pursue the same means and remedies which the mortgagee may lawfully have, take or pursue for the foreclosure of a mortgage and for the recovery of the money secured thereby. (Underline emphasis added.) Section 701.02 provides, in relevant part: Assignment not effectual against creditors unless recorded and indicated in title of document. (1) No assignment of a mortgage upon real property or of any interest therein, shall be good or effectual in l...
...w or in equity against creditors or subsequent purchasers for a valuable consideration without notice, unless a duly executed assignment be recorded according to law. (Underline emphasis added.) JP Morgan first argues that the trial court misapplied section 701.02 when *685 it held that New Millennial was a subsequent purchaser and BB & T was a subsequent creditor for valuable consideration and without notice of the assignments. JP Morgan's position is that section 701.02(1) only applies to estop an earlier purchaser/assignee of a mortgagee the person or entity that loaned the money involved in the mortgage and obtained a security interest on the piece of propertyfrom claiming priority in the same m...
...gned failed to record its assignment. Id. When the bankruptcy trustee, standing in the shoes of mortgagor Halabi, tried to avoid the mortgage debt based on the last assignee's failure to record the assignment, the bankruptcy court held that section "701.02's recording requirement is applicable only to (and enforceable by) competing creditors or subsequent bona fide purchasers of the mortgagee, not by the mortgagor." Id....
...
184 F.3d at 1338 (emphasis added). Because the mortgagor's successor "had constructive notice of a mortgage by whomever held, he cannot assume the status of a bona fide purchaser without notice." Id. at 1338 n. 1 (underline emphasis added). Any other interpretation of section
701.02 would turn well-established secured transaction principles on their heads: a buyer could effectively ignore a recorded mortgage simply because the mortgage/note *686 has been sold in the aftermarket to a different financial institution which has failed to record the assignment....
...r se, it did not affect the rights or interests of the debtor or the debtor's [successor]...." Id. at 1339. As pointed out in In re Halabi, in Bradley v. Forbs,
116 Fla. 350,
156 So. 716 (1934), the Florida Supreme Court held that the predecessor of section
701.02 applied only to creditors or subsequent purchasers of a mortgagee....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1990 Fla. App. LEXIS 8183, 1990 WL 258779
...Chicago Title, Commercial Bank's insurer, stepped into the litigation in place of its insured. Chicago Title contends that when Commercial Bank acquired the mortgages, record title showed no existing encumbrances or assignment and, for that reason, it is entitled to the protection afforded by section 701.02, Florida Statutes (1987), which invalidates, as against innocent creditors for valuable consideration, any mortgage assignment which is not recorded according to law....
...Reese,
68 Fla. 451,
67 So. 136 (1914) (where a mortgage is assigned and the record of the mortgage is unauthorizedly cancelled, a second mortgage executed and assigned after the cancellation has no priority over the assignee of the first mortgage). Section
701.02(1), Florida Statutes (1987), relied upon by Chicago Title, provides: No assignment of a mortgage upon real property or any interest therein, shall be good and effectual in law or equity, against creditors or subsequent purchasers, for...
CopyCited 3 times | Published | United States Bankruptcy Court, M.D. Florida | 2011 WL 1883031
...On August 30, 2010, the Debtor filed an Amended Complaint (Adv. Doc. No. 45). The Amended Complaint states claims for relief against HSBC as follows: Count Ito value HSBC's claim and to avoid its alleged liens pursuant to Section 506 [2] ; Count IIfor violation of Fla. Stat. § 701.02 and avoidance of the alleged liens pursuant to Section 544; Count IIIto avoid the alleged liens as fraudulent transfers pursuant to Section 548; Count IVto avoid the alleged liens as preferential transfers pursuant to Section 547; Count...
...he Debtor is not authorized under the Bankruptcy Code to avoid transfers under 548, 547, or 549. Accordingly, the Court will grant summary judgment in favor of HSBC on Counts III, IV and V. Debtor Lacks Standing to Assert a Claim Under of Fla. Stat. § 701.02. (Count II) As to Count II, the Debtor raised the issue of HSBC's violation of Fla. Stat. § 701.02. The Eleventh Circuit also addressed this statute in the Kapila case and affirmed the bankruptcy court's holding that Fla. Stat. § 701.02's recording requirements are applicable only, and enforceable only, by competing creditors or subsequent bona fide purchasers of the mortgagee, not by the mortgagor. Id. at 1338. In finding in that case that the trustee did not have standing to avoid a mortgage under Fla. Stat. § 701.02, the Eleventh Circuit stated, From the point of view of the mortgagor or someone standing in his shoes, a subsequent assignment of the mortgagee's interestwhether recorded or not does not change the nature of the interest of the mortgagor or someone claiming under him....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2014 WL 1795756, 2014 Fla. App. LEXIS 6717
...he note and mortgage until after commencement. Neither argument has merit. First, the failure to record an assignment does not render it invalid but simply affects the rights/priority of the assignee mortgagees against other assignees. See generally § 701.02, Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2001 WL 194059
...She posits that a reasonably prudent person, upon seeing the trial court's discharge of the mortgage judgment in the Official Records would have investigated to see if it had been appealed. On the other hand, Swanson argues that he is protected by section 701.02, Florida Statutes (1995), as he took title without notice (of any type) of the apparent reinstatement of Marion Slachter's mortgage, and paid valuable consideration to the Millmans....
CopyCited 1 times | Published | Court of Appeals for the Eleventh Circuit | 42 Collier Bankr. Cas. 2d 1173, 1999 U.S. App. LEXIS 19741, 34 Bankr. Ct. Dec. (CRR) 1119, 1999 WL 635513
...estate.
In addition to deciding that the Trustee was not authorized to act under §§ 544 and 549 of the
Bankruptcy Code, the bankruptcy court rejected the Trustee's reliance on state law to defeat the rights of the
appellees. Fla. Stat. § 701.02 provides:
(1) No assignment of a mortgage upon real property or of any interest therein, shall be good or
effectual in law or equity against creditors or subsequent purchasers, for a valuable consideration,
and without notice, unless the assignment is contained in a document which, in its title, indicates an
assignment of mortgage and is recorded according to law.
The bankruptcy court held that Fla. Stat. § 701.02's recording requirement is applicable only to (and
enforceable by) competing creditors or subsequent bona fide purchasers of the mortgagee, not by the
mortgagor....
...§
679.302(2):
If a secured party assigns a perfected security interest, no filing under this chapter is required in order
to continue the perfected status of the security interest against creditors of and transferees from the
original debtor.1
We think this reading of the Fla. Stat. § 701.02 accords with common sense....
...gnments of the mortgage. The mortgagor has actual notice of the
1
The bankruptcy court also relied on Bradley et al. v. Forbs et al.,
116 Fla. 350,
156 So. 716 (1934) in
which the Florida Supreme Court held that the predecessor of Fla. Stat. §
701.02 applied only to creditors
or subsequent purchasers of a mortgagee....
...The appellees contend that Lakeside is factually distinguishable
from the present case, principally because the mortgage was not of record when the bankruptcy petition
was filed. To the extent that Lakeside may stand—as the Trustee suggests—for the proposition that a
trustee may rely on Fla. Stat. § 701.02 to prevail against improperly recorded assignments of a duly
recorded mortgage, we endorse the decision of the bankruptcy court to steer a different course.
5
6
CopyPublished | United States Bankruptcy Court, M.D. Florida | 19 Fla. L. Weekly Fed. B 90, 2005 Bankr. LEXIS 2100, 2005 WL 2952601
...PERFECTION OF THE SECURITY INTERESTS The Trustee argues that the Creditors are not properly perfected in their interests in the two properties under either Florida or North Carolina law because the promissory notes were not recorded with the assignments. Under Florida Statute 701.02, an assignment is effective if it indicates that it is an assignment of a mortgage and is recorded....
CopyPublished | Court of Appeals for the Eleventh Circuit
educational institutions. Pub. L. No. 92-261, § 701–02, 86 Stat. 103, 103–04 (Mar. 24, 1972). That ex-
CopyPublished | District Court, M.D. Florida | 2012 WL 5383092, 2012 U.S. Dist. LEXIS 161170
...discharging an unrecorded “assignment of mortgage or other evidence of transfer of ownership of the Subject Mortgage,” pursuant to Florida Statute §
695.01 (Count I); discharging an unrecorded assignment of mortgage pursuant to Florida Statute §
701.02 (Count II), discharging unidentified unrecorded interests in certain real property pursuant to Florida Statute §
48.23, and quieting title vis a vis the Subject Mortgage, pursuant to Florida Statute §
65.021 (Dkt.3)....
...This theory is frivolous. The failure to record a mortgage assignment does not invalidate Defendant’s recorded mortgage. As for Count II, the failure to record an assignment of mortgage provides no basis to discharge the assignment under Fla. Stat. § 701.02 ....
CopyPublished | Florida 3rd District Court of Appeal
...City’s liens. In response, the City filed its answer and affirmative defenses,
asserting that because an assignment of the mortgage from Bayrock to Wells Fargo
was not recorded prior to the City’s recording of its liens, based on the application
of section 701.02(1) of the Florida Statutes,1 the City’s liens were superior to the
mortgage, even though the mortgage was recorded first.
Following a bench trial, the trial court entered a final judgment foreclosing
MetroJax’s mortgage. The trial court, however, ruled that “because Wells Fargo
failed to comply with the clear language of F.S. 701.02(1),” the City’s code
1 Section 701.02(1), Florida Statutes (2011), provides:
Assignment not effectual against creditors unless recorded and
indicated in title of document; applicability.—
(1) An assignment of a mortgage upon real prope...
...Barton to MetroJax.
In its cross-appeal, MetroJax contends that the trial court erred by holding
that the City’s later-recorded code compliance liens have priority over MetroJax’s
earlier-recorded mortgage based on the application of section 701.02(1)....
...or to the City’s later-
5
recorded code compliance liens. However, the City argued below, and the trial
court found, that the earlier-recorded mortgage lost its priority based on the
application of section
701.02(1) solely because an assignment of the mortgage
from Bayrock to Wells Fargo was not recorded prior to the City’s recording of its
liens. The City’s and the trial court’s reliance on section
701.02(1) is misplaced.
In JP Morgan Chase v. New Millennial, LC,
6 So. 3d 681 (Fla. 2d DCA
2009), our sister court addressed the application of section
701.02(1) as it relates to
the failure to record an assignment of a mortgage....
...including New Millennial and BB & T. New Millennial and BB & T defended the
foreclosure action “by arguing that the mortgages were ineffective and
unenforceable against them because JP Morgan had not recorded the assignments
received from AmSouth, as required by section 701.02, Florida Statutes (2004).”
6
Id. at 683. Both sides filed motions for summary judgment.
The trial court granted New Millennial and BB & T’s motion for summary
judgment, finding that New Millennial was protected by section 701.02 because it
is a subsequent purchaser for valuable consideration who was without notice of the
assignments. The trial court also determined that BB & T was protected by section
701.02 because it is a subsequent creditor for valuable consideration who was
without notice of the assignments.
On appeal, the Second District Court of Appeal reversed the summary
judgment granted in favor of New Millennial and BB & T, concluding that the trial
court misapplied section 701.02(1). In doing so, the Second District held that
section 701.02(1)
only applies to estop an earlier purchaser/assignee of a mortgagee—
the person or entity that loaned the money involved in the mortgage
and obtained a security interest on the piece of property—from
clai...
...ty over a latter
assignee of the same mortgage (Entity B).
In reaching this conclusion, the Second District relied on Kapila v. Atlantic
Mortgage & Investments Corp. (In re Halabi),
184 F.3d 1335 (11th Cir. 1999),
which held that section “
701.02’s recording requirement is applicable only to (and
enforceable by) competing creditors or subsequent bona fide purchasers of the
7
mortgagee, not by the mortgagor.” Id....
...n).
As stated earlier, it is undisputed that the City had, at the very least,
constructive notice of the earlier-recorded Bayrock mortgage when it recorded its
code compliance liens against Barton. As set forth in JP Morgan, the purpose of
section 701.02(1)’s recording requirement is to protect assignees of mortgages, not
creditors of borrowers or others who place liens on the real property after the
mortgage has been recorded....
...4th DCA
2014) (“[T]he failure to record an assignment [of the mortgage] does not render it
8
invalid but simply affects the rights/priority of the assignee mortgagees against
other assignees.”) (citing §
701.02, Fla. Stat. (2013); JP Morgan,
6 So. 3d at 684-
86). As stated in JP Morgan, “[a]ny other interpretation of section
701.02 would
turn well-established secured transaction principles on their heads[.]” Id....
CopyPublished | Florida 4th District Court of Appeal | 86 U.C.C. Rep. Serv. 2d (West) 565, 2015 Fla. App. LEXIS 6716, 2015 WL 2078683
...identical promissory notes secured by the same mortgage. The underlying
transaction contemplated just one note. After payments stopped, both
banks sought to foreclose. The question before us asks which bank may
proceed?
To resolve the dispute, the circuit court applied section 701.02, Florida
Statutes (2008), the recording statute for mortgage assignments....
...possession of the property.
The matter went to a non-jury trial. By that point, LaSalle Bank had
been succeeded as party plaintiff by U.S. Bank, N.A. (“U.S. Bank”). The
trial court entered a final declaratory judgment in U.S. Bank’s favor after
applying section 701.02—Florida’s recording statute for mortgage
assignments. Finding that section 701.02 “appl[ies] to all subsequent
assignments of the original mortgagee,” the trial court found it
determinative that before HSBC recorded its mortgage assignment, “US
Bank obtained its assignment of the same mortgage by closing on it...
...pooling and servicing agreement, thereby obtaining its equitable interest
in the mortgage.” Since U.S. Bank “obtained its [equitable] assignment for
valuable consideration and without notice of HSBC’s prior assignment,”
the trial court held that, pursuant to section 701.02, U.S....
...note, a remedy more theoretical than practical given the existence of the
scheme to defraud.
traditional practices in the secondary mortgage market so expensive
that they would be abandoned.
Id. § 30-8(a), at 62-63.
-7-
Section
701.02 Does Not Apply as Between the Dueling Mortgage
Assignments in This Case
We reject LaSalle Bank’s argument that section
701.02 compels a result
in its favor. Two cases—American Bank of the South v. Rothenberg,
598
So. 2d 289 (Fla. 5th DCA 1992), and JP Morgan Chase v. New Millennial,
LC,
6 So. 3d 681 (Fla. 2d DCA 2009)—touch on the application of section
701.02 to successive assignees of a note and mortgage. We agree with
Rothenberg that the statute has no application to such successive
assignees, a conclusion reinforced by the 2005 amendments to section
701.02 and Uniform Commercial Code Comment 7 to section
679.1091.
Section
701.02 is entitled “Assignment not effectual against creditors
unless recorded and indicated in the title of document.” The statute
provides:
(1) An assignment of a mortgage upon real property or of any
interest therein, is no...
...named as the
mortgagee in the recorded mortgage or, if an assignment of
the mortgage has been recorded in accordance with this
section, the term “mortgagee of record” means the assignee
named in the recorded assignment.
§ 701.02, Fla....
...Prior to American
Bank recording an assignment, Rothenberg purchased the note and
mortgage from the mortgagee and recorded an assignment of mortgage.
Id. at 289-90. Rothenberg did not, however, take possession of the note.
The Rothenberg parties framed their priority arguments around the
application of section 701.02. Id. at 290. Ultimately, the Fifth District
resolved the matter in American Bank’s favor, but not based on section
701.02. The court concluded that the section did not apply to successive
assignments of a note and mortgage:
The confusion in this case arises from the failure of both
parties to recognize that section 701.02 ....
...is inapplicable.
This case, involving as it does the competing interests of
successive assignees of a note and mortgage, is governed by
-9-
negotiable instruments law, not the recording statute. Section
701.02 was enacted to protect a creditor or subsequent
purchaser of land who has relied on the record satisfaction of
a prior mortgage, which satisfaction was executed by the
mortgagee after he made an unrecorded assignment of the
same mortgage....
...See Rogers, Chapter
20,954, Acts of 1941 (Dealing with Real Property), 15 Fla. L.J.
276 (Oct. 1941). Nothing in the statute makes it applicable to
successive assignees of mortgages and we decline to so extend
it.
Id. (footnote omitted). With section 701.02 cast aside, the court applied
Chapter 673 of Florida’s Uniform Commercial Code to hold American
Bank’s interest superior to Rothenberg’s by virtue of its status “as
possessor of a valid assignment of mortgage and holder in due course of
the original note.” Id. at 291.
Seventeen years later, in JP Morgan Chase, the second district
confronted section 701.02’s application to successive assignees of the
same mortgage, albeit under a vastly different fact pattern....
...al
that the “loans were paid off” and later faxed to the closing agent two
computer screen printouts indicating the payoff. Id. Thereafter, when New
Millennial failed to pay and JP Morgan instituted foreclosure proceedings,
New Millennial argued section 701.02 rendered JP Morgan’s notes and
mortgages ineffective and unenforceable against it because JP Morgan
failed to record its mortgage assignments....
...Id.
The second district ruled in favor of JP Morgan on the grounds that
New Millennial had “actual knowledge” that the two recorded mortgages
existed and had not been satisfied. Id. at 686. However, in reaching this
result, the court interpreted section 701.02(1) as applying “only ....
...gns the mortgage to
Entity A and Entity A fails to record that assignment, Entity A cannot claim
priority over a latter assignee of the same mortgage (Entity B).” Id.
While JP Morgan Chase did not acknowledge Rothenberg, its
characterization of section 701.02 is directly at odds with the fifth
district—the former standing for the proposition that section 701.02
applies only to competing interests of successive assignees, and the latter
concluding that it does not apply at all.
Both the Plain Language of Section 701.02(1) and the 2005 Amendment
Contained in Section 701.02(4) Demonstrate that the Statute Does Not
Apply to Determine Priority Between the Mortgage Assignments in this
Case
In 1828, Florida enacted its first recording statute, which, at the time,
provide...
...[s]
of a mortgage lien [a]s not [being] ‘a conveyance’ or a ‘transfer’ of ‘any
interest’ in land covered by the mortgage.” Garrett v. Fernauld,
57 So. 671,
672 (Fla. 1912).
Three years after Garrett, the Florida Legislature enacted section
701.02.5 Although there is no legislative history from that time period,
Justice Stephen Grimes—while a student at the University of Florida Law
School—explained in a 1954 case note that “the statute was apparently
passed to protect pur...
...ecord and (2) then
files a satisfaction. Thereafter, a prudent purchaser looking to the real estate
records would see only a satisfaction of the prior mortgage, leading one to believe
the property to be free and clear of encumbrances. Application of section 701.02
would stave off the inequitable result of an unaware purchaser being burdened
with the absent mortgage assignment.
- 12 -
three concerns for concluding that section 701.02 does not apply to
successive assignments of the same debt and mortgage:
First, the statute by its express terms applies only to
“creditors or subsequent purchasers.” The failure of the
Legislature to include s...
...the Legislature.
598 So. 2d at 290 n.2 (quoting Grimes, supra, at 97); accord Matter of Ascot
Mortg., Inc.,
153 B.R. 1002, 1010 (Bankr. N.D. Ga. 1993).7
7The bankruptcy court in Matter of Ascot agreed with the Grimes/Rothenberg
approach to section
701.02, stating:
[T]he Florida recording statute, in common with those of many other
jurisdictions, extends protection only to subsequent purchasers for
value and mortgagees and other lien claimants against the
un...
...owner of the underlying land or those who claim through him; they
do not apply as between competing assignees or successive
claimants in the mortgage.
- 13 -
We agree with the Grimes/Rothenberg view that section 701.02 was
designed to confront issues pertaining to real property. See David E.
Peterson, Cracking the Mortgage Assignment Shell Game, 85 Fla. B.J. 10,
15-17 (Nov. 2011). As Justice Grimes observed, section 701.02(1) requires
recording to make an assignment of a mortgage “good or effectual” against
“creditors or subsequent purchasers”; however, the statute omits any
reference to “subsequent assignees.” In a statute dealing with
assignments, had the Legislature intended to treat subsequent assignees
the same as “creditors or subsequent purchasers,” it would have said so.
Any doubt that section 701.02 does not apply to the assignment of a
mortgage was laid to rest in 2005 when the Legislature added section
701.02(4). That subsection provides that “[n]otwithstanding” subsections
701.02(1)-(3) “governing the assignment of mortgages,”
chapters 670-680 of the Uniform Commercial Code of this
state govern the attachment and perfection of a security
interest in a mortgage upon real property and in a promisso...
...The assignment of such a mortgage need not be
recorded under this section for purposes of attachment or
perfection of a security interest in the mortgage under the
Uniform Commercial Code.
The section establishes that it is the Uniform Commercial Code, and
not recording pursuant to section 701.02, that determines “attachment
and perfection” of a security interest in a note and mortgage....
...As discussed
above, the Code provides that earlier “perfection” gives a secured party
priority over latecomers.
Legislative history of the 2005 amendment supports the notion that it
is the Uniform Commercial Code that determines priority of mortgage
assignments and not section 701.02....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 5223, 1992 WL 100644
...After being contacted by American Bank, he realized he had received only a copy of the promissory note from Northeast Mortgage. In December 1989, Rothenberg filed the instant foreclosure action and moved for summary judgment. Rothenberg argued that pursuant to section 701.02(1), Florida Statutes (1991), 1 American Bank’s failure to record its assignment of the note and mortgage precluded American Bank from prevailing against him....
...not render the assignment to American Bank ineffectual against the assignment to Rothenberg. The trial court entered summary final judgment in favor of Rothenberg. The confusion in this case arises from the failure of both parties to recognize that section 701.02, titled “Assignment not effectual against creditors unless recorded and indicated in title of document” is inapplicable. This case, involving as it does the competing interests of successive assignees of a note and mortgage, is governed by negotiable instruments law, not the recording statute. Section 701.02 was enacted to protect a creditor or subsequent purchaser of land who has relied on the record satisfaction of a prior mortgage, which satisfaction was executed by the mortgagee after he made an unrecorded assignment of the same mortgage....
...3 American Bank, as possessor of a valid assignment of mortgage and holder in due course of the original note, prevails. See Vance v. Fields,
172 So.2d 613 (Fla.1965). REVERSED and REMANDED for entry of judgment in accordance with this opinion. DAUKSCH and COWART, JJ., concur. . Section
701.02 provides: (1) No assignment of a mortgage upon real property or of any interest therein, shall be good or effectual in law or equity, against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless...
CopyPublished | District Court, M.D. Florida | 2012 WL 3733869, 2012 U.S. Dist. LEXIS 123320
...The parties concede there is no statute or judicial decision that requires the recording of mortgage assignments. Florida law does address, however, the effect against creditors of the failure to file an assignment of a mortgage against those creditors. Section 701.02(1), Florida Statutes provides that a mortgage assignment is not effective in providing constructive notice to creditors and subsequent purchasers unless it is recorded....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Dec 16, 2022
...R. Evid. 701. A diagnosis requiring more complex
diagnostic reasoning than that required to notice a broken jaw may fall under
Rule 701(c)’s prohibition. See Stephen A. Saltzburg et al., 3 Federal Rules of
Evidence Manual § 701.02[7] (Matthew Bender 12th ed.) (“When the [treating]
physician testifies that the plaintiff was coughing and running a fever, this is
lay witness testimony governed by Rule 701....
CopyPublished | Florida 3rd District Court of Appeal
...3d 424, 430 (Fla. 3d DCA 2014) (noting the parties needed to have paid
documentary stamp and intangible taxes on the principal mortgage amounts
claimed by them); Barton v. MetroJax Prop. Holdings, LLC,
207 So. 3d 304,
307 (Fla. 3d DCA 2016) (“‘[Section]
701.02’s recording requirement is
applicable only to (and enforceable by) competing creditors or subsequent
bona fide purchasers of the mortgagee, not by the mortgagor.’” (quoting JP
Morgan Chase v....
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 11054
...ich the mortgagee may lawfully have, take or pursue for the foreclosure of a mortgage and for the recovery of the money secured thereby.” Title XL of the Florida Statutes has no notice requirement with regard to assignments of mortgages. Moreover, section 701.02(4) specifically states that chapters 670-680 of the UCC “govern the attachment and perfection of a security interest in a mortgage upon real prop: erty and in a promissory note or other right to payment or performance secured by that...
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 9 Fla. L. Weekly Fed. B 404, 1996 Bankr. LEXIS 613
...The Trustee claims that since Atlantic recorded its assignment of the Mortgage post-petition, the assignment is avoidable by the Trustee possessing the rights and powers of a bona fide purchaser or a hypothetical judicial lien creditor of the Debtor pursuant to Fla.Stat. § 701.02 and 11 U.S.C. §§ 544 and 549. According to Fla.Stat. § 701.02: (1) No assignment of a mortgage upon real property or of any interest therein, shall be good or effectual in law or equity against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless the assignment is contained in a document which, in its title, indicates an assignment of mortgage and is recorded according to law (emphasis added). While Fla.Stat. § 701.02 requires the recording of an assignment of a mortgage for the assignment to have priority over creditors or bona fide purchasers, this Court finds that such recording requirements are only applicable to competing creditors or subsequent bona fide purchasers of the mortgagee; not the mortgagor....
...l debtor (emphasis added). Since Republic properly recorded the Mortgage, the Defendants were not required to file their assignments of the Mortgage to continue the perfection of their interest in the Mortgage. The recording requirement of Fla.Stat. § 701.02 relates only to competing creditors' interest or bona fide purchasers of the mortgagee. Since the requirements of Fla.Stat. § 701.02 do not apply to *635 competing interests between mortgagors or mortgagees, this Court finds that the Trustee's assertion that the Trustee may avoid the Defendants' lien in the Real Property must fail....
...Debtor's estate. Instead, such assignments of the Mortgage are transfers of the Defendants' interest in the Mortgage. Neither creditors nor bona fide purchasers of the Debtors would be able to avoid the assignments of the Mortgage under Fla.Stat. §§ 701.02 or 679.302....
...§ 544(a)(3) permitted debtors to occupy the position of a bona fide purchaser of real estate and avoid an assignee's interest in a properly perfected mortgage. This Court, however, declines to follow the holding of Judge Paskay based on the plain language of Fla.Stat. §§ 701.02 and 679.302 and 11 U.S.C....
...r Note or their claims against the Trustee. [2] The Florida Supreme Court in Bradley, et al. v. Forbs, et al . applied Chapter 6909, Acts 1915, section 3841, R.G.S. section 5744, C.G.L. of the Florida Statutes, which was the predecessor of Fla.Stat. § 701.02. Having reviewed the historical and statutory notes and the Florida Supreme Court's interpretation of Chapter 6909, Acts 1915, this Court notes that the statutory law regarding the assignment of mortgages currently codified as Fla.Stat. § 701.02 has remained the same.
CopyPublished | United States Bankruptcy Court, M.D. Florida | 1989 Bankr. LEXIS 1554, 1989 WL 105907
...It is the Debtor's contention that Citibank has no standing to seek relief from the automatic stay in that the mortgage and the note in question is still held, per record, in the name of Caribank and there is no assignment of the mortgage on record which is required by Fla.Stat. § 701.02 as a condition to the enforceability of a mortgage against subsequent creditors or purchasers....
CopyPublished | Court of Appeals for the Eleventh Circuit
...m FDIC-Reeeiver to FDIC-Corporate, Smith argues that he is protected from foreclosure of the first mortgage by Florida’s recording statute, as he was the purchaser of the property at the foreclosure sale of the second mortgage. 7 See Fla.Stat.Ann. § 701.02(1) (West 1994)....
...Smith cannot benefit from the protection of the Florida recording statute, even if it applies to the challenged conveyances, because he was not “without notice” of the FDIC’s unrecorded acquisition of the Wahl-quists’ mortgage within the meaning of Fla. Stat.Ann. § 701.02(1)....
...The inference of notice that flows from the breach of the duty to inquire accrues when one becomes a “ereditor[] or subsequent purchased ] for valuable consideration,” for it is at that moment that one must also be “without notice” to gain the protection of Fla.Stat.Ann. § 701.02(1)....
...roperty would have revealed correct address). 14 Accordingly, because Smith was on implied actual notice, on August 27, 1991, of the FDIC’s continued possession of the Wahl-quists’ mortgage, he does not fall under the protection of Fla.Stat.Ann. § 701.02(1)....
...We note that this issue is analytically distinct from the question of whether third party transferees from the FDIC, such as assuming banks participating in purchase and assumption transactions, must record their acquired interests. See, e.g., In re Lakeside I Corp.,
120 B.R. 213 (Bankr.M.D.Fla.1990) (§
701.02(1) applies to third party purchaser of mortgage at FDIC liquidation of failed bank's assets)....
...1029, 1031, 1034 (E.D.Mich.1993) (state recording statute applies to RTC under such circumstances). .Because we hold that Smith was not "without notice" within the meaning of this statute, we need not address the question of whether he was in fact a "creditor!] or subsequent purchaser!], for valuable consideration” under § 701.02(1) (emphasis added)....
CopyPublished | Court of Appeals for the Eleventh Circuit
...estate.
In addition to deciding that the Trustee was not authorized to act under §§
544 and 549 of the Bankruptcy Code, the bankruptcy court rejected the Trustee’s
reliance on state law to defeat the rights of the appellees. Fla. Stat. § 701.02
provides:
(1) No assignment of a mortgage upon real property or of any interest
therein, shall be good or effectual in law or equity against creditors or
subsequent purchasers, for a valuable consideration, and without notice,
unless the assignment is contained in a document which, in its title, indicates
an assignment of mortgage and is recorded according to law.
The bankruptcy court held that Fla. Stat. § 701.02's recording requirement is
applicable only to (and enforceable by) competing creditors or subsequent bona
fide purchasers of the mortgagee, not by the mortgagor....
...chapter is required in order to continue the perfected status of the security
6
interest against creditors of and transferees from the original debtor.1
We think this reading of the Fla. Stat. § 701.02 accords with common sense....
...1974) (“the Bankruptcy Trustee stands in the shoes of the Bankrupt . . . He is not
1
The bankruptcy court also relied on Bradley et al. v. Forbs et al.,
116 Fla. 350,
156 So. 716
(1934) in which the Florida Supreme Court held that the predecessor of Fla. Stat. §
701.02 applied
only to creditors or subsequent purchasers of a mortgagee....
...The appellees contend that Lakeside is factually
distinguishable from the present case, principally because the mortgage was not of record when the
bankruptcy petition was filed. To the extent that Lakeside may stand – as the Trustee suggests –
for the proposition that a trustee may rely on Fla. Stat. § 701.02 to prevail against improperly
recorded assignments of a duly recorded mortgage, we endorse the decision of the bankruptcy court
to steer a different course.
8
For the foregoing reasons,...
