Summary
reversing appointment of receiver because party seeking receivership did not show that mortgagor was wasting the property or subjecting it to serious risk of loss
Summary of this case from DESILVA v. FRST CMNTY BNK AMOpinion
No. 3D00-424.
Opinion filed March 15, 2000. Rehearing Denied May 17, 2000.
An appeal of a non-final order from the Circuit Court of Dade County, Philip Bloom, Judge, L.T. No. 99-25428.
Greenberg Traurig and Susan Tarbe, Brenda K. Supple and Elliot H. Scherker; Simon Schindler Sandberg, for appellants.
Entin, Margules Della Fera and Leon R. Margules and Christopher W. Prusaski, for appellee.
Before SCHWARTZ, C.J., and GREEN and FLETCHER, JJ.
ANJ Future Investments, Inc. and Mohamed Ibrahim [collectively, ANJ] seek to reverse an order appointing a receiver in foreclosure proceedings. We reverse.
"The appointment of a receiver, as an equitable remedy, is not a matter of right even if the mortgage so provides. . . . [T]he trial court must balance the mortgagor's right to own and possess its property against the interests of the mortgagee in protecting its security in the property." Seasons Partnership I v. Kraus-Anderson, Inc., 700 So.2d 60, 61 (Fla. 2d DCA 1997); see Barnett Bank of Alachua County v. Steinberg, 632 So.2d 233 (Fla. 1st DCA 1994) (appointment of a receiver is an extraordinary measure which must be exercised with caution as it is in derogation of the legal owner's fundamental right to possession of his or her property). Here, there was no showing on the record that ANJ was wasting the mortgaged property or otherwise subjecting it to serious risk of loss, or that the value of the property was insufficient to secure the mortgage loan. Where there are other less drastic methods to protect Alter's security interest, the appointment of a receiver was an abuse of discretion. Atco Construction Development Corp. v. Beneficial Savings Bank, F.S.B., 523 So.2d 747 (Fla. 5th DCA 1988); Turtle Lake Assoc. Ltd. v. Third Financial Services, Inc., 518 So.2d 959 (Fla. 1st DCA 1988); see, e.g., Alafaya Square Ass'n, Ltd. v. Great Western Bank, 700 So.2d 38 (Fla. 5th DCA 1997); Sazant v. Foremost Investments, N.V., 507 So.2d 653 (Fla. 3d DCA 1987). Accordingly, we reverse the order appointing a receiver and remand for further proceedings.
Reversed and remanded.