Summary
affirming trial court summary judgment of foreclosure over the purchaser's objection based on the mortgage being usurious
Summary of this case from Trailer Park Acquisiton, LLC v. Branch Banking & Trust Co. (In re Trailer Park Acquisition, LLC)Opinion
No. 86-1381.
September 1, 1987.
Appeal from the Circuit Court, Dade County, Phillip W. Knight, J.
Kenny Nachwalter Seymour and Thomas D. Hall, Miami, for appellant.
Horton, Perse Ginsberg and Edward A. Perse, Miami, and Fried Lasky, for appellee.
Before HENDRY, NESBITT and FERGUSON, JJ.
Although usury in the underlying obligation is a valid defense to a mortgage foreclosure, the defense is not available to a subsequent owner of the property who is not a party to the allegedly usurious contract and who took the encumbered property subject to the mortgage. Spinney v. Winter Park Bldg. Loan Ass'n., 120 Fla. 453, 162 So. 899 (1935); Zimmerman v. Hill, 100 So.2d 432 (Fla. 3d DCA 1958). Nothing in the usury statutes, chapter 687, Florida Statutes (1985), supports the argument of the appellants that the controlling cases have been legislatively overruled.
We affirm the final judgment of foreclosure.