Summary
holding that when a corporation admitted to transferring “some mortgages” to various entities, corporate officers' “bare affirmation” that the subject note was not assigned along with the other mortgages, without more, failed to establish the claimed nonoccurrence
Summary of this case from Segall v. Wachovia Bank, N.A.Opinion
No. 72-67.
October 11, 1972.
Appeal from the Circuit Court for Collier County, Harold S. Smith, J.
Richard B. Lansdale, Naples, for appellants.
Robert A. Neinas, of Carroll, Vega, Brown Nichols, Naples, for appellee.
Properly characterized, this is an action for reestablishment of a lost note and mortgage. The evidence is clear that the mortgage was executed, that the appellants acquired the property subject to it and agreed to assume it. They made some payments, but it is now in default to the extent determined by the trial court. Thus the findings, as far as they go, are correct and are affirmed. However, the evidence that the note and mortgage have not been assigned is inadequate, and the procedures outlined by the governing statute have not been followed. Appellants are entitled to assurance that they will not later be sued by a holder of these instruments. The corporation had admittedly transferred some mortgages to a bank and some to stockholders whose interest was being acquired. All this record shows is the bare affirmation of two corporate officers that this one was not assigned. The president testified that it was necessary to subpoena the corporation's records from its former bookkeeper, but was forbidden by his counsel to explain why this was necessary. If there are parties having any claim to these instruments they should be brought into the action and the matter determined. The instruments should then be reestablished, recorded and an appropriate judgment entered.
Fla. Stat. § 71.011, F.S.A.
Affirmed in part, reversed in part and remanded.
LILES, Acting C.J., and McNULTY, J., concur.