FIRST WISCONSIN NATIONAL BANK OF MILWAUKEE, A NATIONAL BANKING ASSOCIATION, PETITIONER,
v.
KENNETH D. ROOSE AND GRETCHEN ROOSE, RESPONDENTS; FIRST WISCONSION NATIONAL BANK OF MILWAUKEE, A NATIONAL BANKING ASSOCIATION, APPELLANT, V. KENNETH D. ROOSE AND GRETCHEN ROOSE, APPELLEES
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.
Condominium unit owners sued their mortgagee bank, seeking to impose a joint adventure relationship and supervisory duties on the lender over property maintenance. The appellate court reversed the denial of the bank's motion to dismiss, finding insufficient factual allegations to support any legal theory beyond the bank's status as a lender and security holder.
The court held that absent clear factual allegations establishing the elements of a joint adventure (including joint proprietary interest, community of interest, and profit/loss sharing), a mortgagee cannot be imposed with duties greater than those of a money lender and security holder. Additionally, a mortgagee cannot be compelled to foreclose on specific portions of mortgaged property to protect unit owners' interests.
[1] A mortgagee's duty is generally limited to that of a money lender and security holder absent specific allegations supporting a greater obligation.
[2] A joint adventure relationship requires allegations of a joint proprietary interest, a community of interest in the performance of a common purpose, and an agreement to s…
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“Absent clear allegations in accordance with the guidelines established in the cases cited above, we cannot impose a duty upon a mortgagee greater than the one established as a money lender and security holder.”
Establishes the core holding that a mortgagee's duties are limited to those of a lender unless joint adventure elements are clearly alleged
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFirst Wisconsin National Bank loaned money to a developer to construct a condominium project and received a mortgage. The developer failed to maintain…
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 Joint Adventure cases and more on FLexlaw
DAUKSCH, Judge.
This is an appeal of an Order denying a Motion to Dismiss. We have accepted jurisdiction under Fla.App. Rule 4.2 because the matter is in equity. Appellee is an owner of a condominium apartment and represents a class of other condominium unit owners. He filed this lawsuit against the Appellant who is the mortgagee of the entire condominium project, including the recreation and other common areas.
In a novel and imaginative way Plaintiff seeks to have the court impose a joint adventure relationship upon the mortgagee without alleging sufficient facts to support his legal conclusion that such a relationship exists. Navarro v. Espino, 316 So. 2d 646 (Fla.3d DCA 1975). Florida Tomato Packers, Inc. v. Wilson, 296 So. 2d 536 (Fla.3d DCA 1974). Hewitt v. Price, 222 So. 2d 247 (Fla.3d DCA 1969).
Appellant loaned the now defunct developer the money with which to build the project. A mortgage was received and payments on the mortgage were not received. Worse than that, from the owners’ viewpoint, the developer failed to maintain the recreation areas and the entire project began to waste away from a lack of funds.
The developer had promised to maintain the facilities in a first class manner and the mortgagee was aware of that when the money was loaned. It is alleged the mortgagee also knew the entire property was insufficient security to support the loan. It is further alleged that the unit owners have suffered a diminution in the value of their apartments and that they will be forced to spend time and money to correct the conditions complained of. There is no allegation of any agreement between the mortgagor and mortgagee except the agreement for financing. There is no allegation of a joint proprietary interest in the development. There is no allegation of a community of interest in the performance of a common purpose and no allegation that each would share in the profits and losses. Absent clear allegations in accordance with the guidelines established in the cases cited above, we cannot impose a duty upon a mortgagee greater than the one established as a money lender and security holder. In another innovative way the Ap-pellee would have a duty imposed on the mortgagee to protect the interests of the owners by supervising the construction and maintenance by the developer. Appellee cites A. R. Moyer, Inc. v. Graham, 285 So. 2d 397 (Fla.1973) as authority but we find this case distinguishable and say again insufficient factual allegations cause the defeat of this count.
In a final stroke the Plaintiff seeks to have the court order the Defendant to foreclose its mortgage on the recreational complex. He reasons that Defendant cannot choose to foreclose on the valuable vacant land and refuse to foreclose on the recreational facility in order to avoid assuming the burdensome obligation of maintenance.
We find, no support of this proposition in law or logic and cannot sustain the allegation as stating a cause of action.
The Order denying the Motion of Defendant/First Wisconsin National Bank of Milwaukee to dismiss Counts II, III and IV is reversed and this cause is remanded for further proceedings not inconsistent herewith.
REVERSED and REMANDED.
MAGER, C. J., and ALDERMAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Chotka v. Fidelco Growth Invs., 383 So. 2d 1169 (Fla. 2d DCA 1980)…han just a lender when they took title to the condominium project, completed construction, and, holding themselves out to be the developer and owner of the project, advertised and sold units to purchasers. See First Wisconsin National Bank v. Roose, 348 So. 2d 610 (Fla.4th DCA 1977). At that point, while recognizing that this was a common law action for implied warranty, and not an action under Chapter 718, Florida Statutes, we think appellees became a developer of the project to the extent that they may be h…
-
ALL State Plumbing, Inc. v. Mut. Sec. Life Ins. Co., 537 So. 2d 598 (Fla. 3d DCA 1988)…rst Fed. Sav. & Loan Ass’n, 207 So. 2d 22 (Fla. 2d DCA), cert. denied, 212 So. 2d 879 (Fla.1968); accord Armetta v. Clevetrust Realty Investors, 359 So. 2d 540 (Fla. 4th DCA), cert. denied, 366 So. 2d 879 (Fla. 1978); First Wis. Nat’l Bank v. Roose, 348 So. 2d 610 (Fla. 4th DCA 1977). Where the subcontractor is a mechanics lienholder who foreclosed its lien and obtained a foreclosure judgment against the property owner, the lien merges into that judgment and the lienholder becomes a judgment creditor. Nassa…
-
Sobi v. First S. Bank, Inc., 946 So. 2d 615 (Fla. 1st DCA 2007)…addition, under Florida law, as a general rule a lender has no liability for construction defects. See Rice v. First Fed. Sav. & Loan Ass’n of Lake County, 207 So. 2d 22 (Fla. 2d DCA 1968); see also First Wisconsin Nat’l Bank of Milwaukee v. Roose, 348 So. 2d 610, 611 (Fla. 4th DCA 1977)(lender had no obligation to others to supervise construction and maintenance by the developer; the lender’s duty was confined to “the one established as a money lender and security holder.”). See also Armetta v. Clevetrust R…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- A. R. Moyer, Inc. v. Graham, 285 So. 2d 397 (Fla. 1973)
- Fla. Tomato Packers, Inc. v. Wilson, 296 So. 2d 536 (Fla. 3d DCA 1974)
- Guilberto Navarro v. Espino, 316 So. 2d 646 (Fla. 3d DCA 1975)
- Hewitt v. Deetjen, 222 So. 2d 247 (Fla. 3d DCA 1969)
- Pryor v. State, 222 So. 2d 247 (Fla. 4th DCA 1969)