GEORGE BULL; MARY T. BULL; MEMPHIS LIMITED; A FLORIDA LIMITED PARTNERSHIP; AND ATLANTIC BEACH MANAGEMENT, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
JACKSONVILLE FEDERAL SAVINGS AND LOAN ASSOCIATION, APPELLEES
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Mortgagors appealed a non-final order appointing a receiver in a mortgage foreclosure action. The court affirmed the trial court's finding that appellants received adequate notice of the receivership hearing, but reversed the appointment of the receiver because the mortgagee failed to introduce the mortgage documents into evidence at the hearing.
The court held that the mortgagee failed to carry its burden of showing entitlement to a receiver because the mortgages were not properly introduced into evidence. The trial court erred in taking judicial notice of the mortgages, as publicly recorded documents such as mortgages are not included in the matters which must or may be judicially noticed under Florida law.
[1] A trial court may err by appointing a receiver based on provisions in mortgages not formally introduced into evidence.
[2] Pleadings are not evidence, and a court cannot rely on documents attached to pleadings if their authenticity or veracity has not been admitted or established.
Previewing 2 of 5 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“Pleadings are not evidence, and since appellants never admitted the authenticity or veracity of the alleged mortgages, the trial court erred in relying on the provisions of documents not in evidence.”
Establishes the fundamental principle that mortgages must be introduced into evidence, not merely attached to pleadings or relied upon through judicial notice
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Join FLexlaw to unlock all legal intelligenceJacksonville Federal Savings and Loan Association filed a mortgage foreclosure action against mortgagors George Bull, Mary T. Bull, Memphis Limited, a…
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SHIVERS, Chief Judge.
Appellants, mortgagors and defendants in a mortgage foreclosure action brought by appellees, appeal a non-final order appointing a receiver. We affirm on the first point raised in the initial brief, finding that appellants received ample notice of the receivership hearing, and finding no evidence in the record that appellants or their attorney were prejudiced by the fact that a typographical error in the notice of hearing was not corrected until two days prior to the hearing.
On appellants’ second point, we reverse and remand. In Turtle Lake Associates, Ltd. v.
Third Financial Services, Inc., 518 So. 2d 959 (Fla. 1st DCA 1988), the mortgagee filed a foreclosure complaint against mortgagor and, at a later hearing, made an oral motion for appointment of a receiver.
The trial court granted the motion, noting that the appointment of a receiver was specifically provided for in the mortgages. Although copies of the mortgages were attached to the foreclosure complaint, they were not introduced into evidence at the hearing.
This court reversed the appointment, holding “Pleadings are not evidence, and since appellants never admitted the authenticity or veracity of the alleged mortgages, the trial court erred in relying on the provisions of documents not in evidence.” Id. at 961.
In the instant case, appellees argued both at the hearing and in their petition that they had an absolute right to the appointment of a receiver pursuant to paragraph 7 of the mortgages. Appellants objected on the basis that the mortgages themselves had not been introduced into evidence.
The trial court overruled the objection and appointed a receiver, taking judicial notice of the mortgages as recorded in the public records of the county, and stating that the mortgages “are in evidence ... in the pleadings.” The trial court should not have been allowed to circumvent the holding in Turtle Lake by taking judicial notice of the documents, since the ability to do so would obviate the necessity of ever introducing public records into evidence and establishing their authenticity. In any event, publicly recorded documents such as deeds and mortgages are not included in the list of matters which must or may be judicially noticed, set out in sections 90.201 and 90.202, Florida Statutes. We therefore hold that appellees failed to carry their burden of showing entitlement to a receiver. AFFIRMED in part; REVERSED.
JOANOS and WOLF, JJ., concur.
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Sandefur v. RVS Cap., LLC, 183 So. 3d 1258 (Fla. 4th DCA 2016)…l-notice of it. This argument fails for three reasons. First, the mere fact that a document has been recorded does not make that document a proper matter for judicial notice. § 90.202, Fla. Stat. (2013); Bull v. Jacksonville Fed. Sav. & Loan Ass’n, 576 So. 2d 755, 756 (Fla. 1st DCA 1991) (“[Pjublically recorded documents such as deeds and mortgages are not included in the list of matters which must or may be judicially noticed, set out in sections 90.201 and 90.202, Florida Statutes.”). Second, the Florida…
Authorities Cited
- Turtle Lake Assocs., Ltd. v. Third Fin. Servs., Inc., 518 So. 2d 959 (Fla. 1st DCA 1988)