EUROPEAN AMERICAN BANK F/K/A EUROPEAN AMERICAN BANK & TRUST CO., APPELLANTS/CROSS-APPELLEES,
v.
DUPONT BUILDING ASSOCIATES, LARRY SILVERSTEIN, INDIVIDUALLY AND AS GENERAL PARTNER OF DUPONT BUILDING ASSOCIATES, APPELLEES/CROSS-APPELLANTS
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
European American Bank appeals the trial court's grant of summary judgment against it on claims for waste, fraud, and breach of oral agreement related to a mortgaged building. The Florida appellate court affirms the foreclosure judgment but reverses and remands the waste claim, finding a genuine issue of material fact regarding whether the borrower depleted the property's value as security.
A mortgagee may bring an action for damages resulting from wrongful injury to mortgaged property that renders it of less value as security. The mortgage instrument does not provide that foreclosure is the exclusive remedy for waste. A genuine issue of material fact existed regarding whether Dupont's actions depleted the value of EAB's security, making summary judgment inappropriate on the waste claim.
[1] A mortgagee may have an action for damages resulting from wrongful injury to the mortgaged property that diminishes its value as security for the mortgage debt.
[2] The measure of damages in an action for waste is the difference in the value of the property just before and since the tort was committed.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a mortgagee ... may have an action on the case for damages resulting from wrongful injury to the mortgaged property, whereby the property is rendered of less value as security for the mortgage debt; the damages to be awarded being the amount of injury to the security resulting from the damage to the property.”
Establishes the legal basis for a mortgagee's cause of action for waste and the measure of damages
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDupont Building Associates purchased the Alfred I. Dupont building, financed by Chase Manhattan Bank. Chase later assigned the note and mortgage to Eu…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Waste cases and more on FLexlaw
BASKIN, Judge.
European American Bank [EAB] appeals a final summary judgment denying its claims for damages. We affirm in part and reverse in part. Dupont Building Associates [Dupont] purchased the Alfred I. Dupont building. The acquisition was financed by Chase Manhattan Bank, which later assigned the note and mortgage to EAB. EAB instituted foreclosure proceedings and, in addition, asserted claims of waste, fraud in the inducement, and breach of an oral agreement. EAB obtained a summary judgment on the foreclosure count and bought the property at the judicial sale. When Dupont obtained a summary judgment on the remaining counts, EAB filed this appeal.
The only meritorious issue raised on appeal is whether a cause of action existed for Dupont’s alleged conduct resulting in waste. EAB correctly asserts that
[a] mortgagee ... may have an action on the case for damages resulting from wrongful injury to the mortgaged property, whereby the property is rendered of less value as security for the mortgage debt; the damages to be awarded being the amount of injury to the security resulting from the damage to the property.
Atlantic Coast Line R. Co. v. Rutledge, 122 Fla. 154, 157, 165 So. 563, 564 (Fla.1935). Dupont’s argument that the mortgage restricted EAB to the remedy of foreclosure in the event of waste is devoid of any citations to the record, and the mortgage instrument does not provide that foreclosure is the exclusive remedy. The record reveals the existence of a genuine issue of material fact as to whether Du-pont’s actions depleted the value of EAB’s security; thus, the trial court erred in granting Dupont a summary judgment on the waste count.1 Moore v. Morris, 475 So. 2d 666 (Fla.1985).
We find no merit in the cross-appeal, which seeks to set aside the foreclosure sale. In an action for waste, “[t]he measure of damages that may be awarded is the difference in the value of the property just before and since the tort was committed." Atlantic Coast Line, 122 Fla. at 159, 165 So. at 565 (emphasis supplied). The foreclosure sale does not affect the determination of damages on the issue of waste; setting it aside would serve no purpose.
We affirm the judgment of foreclosure, reverse as to the claim predicated on waste, and remand for further proceedings consistent with this opinion.
Affirmed in part; reversed in part; remanded.
. On remand, the waste issue should be tried in accordance with the contractual standards of the mortgage documents,
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Morton L. Ginsberg & MLG Props., Inc. v. Lennar Fla. Holdings, 645 So. 2d 490 (Fla. 3d DCA 1994)…r the alleged waste occurred. To properly allege impairment of security one must allege that the value of the property is no longer equal to or greater that the debt owed. As this court stated in European American Bank v. Dupont Building Associates, 567 So. 2d 971 (Fla. 3d DCA 1990), review denied, 581 So. 2d 164 (Fla.1991): A mortgagee may have an action on the ease for damages resulting from wrongful injury to the mortgaged property, whereby the property is rendered of less value as security for the mortga…
Authorities Cited
- Moore v. Morris, 475 So. 2d 666 (Fla. 1985)
- Atl. Coast Line R.R. Co. v. Rutledge, 122 Fla. 154 (Fla. 1935)