Summary
holding that the beneficiary of a constructive trust holds an unrecorded interest that is inferior to the interest of a bona fide purchaser
Summary of this case from Sanchez-Villalba v. HerkertOpinion
No. 3D00-387.
Opinion filed January 31, 2001. Rehearing Denied March 8, 2001.
An appeal from a non-final order from the Circuit Court for Miami-Dade County, Fredericka Smith, Judge. Lower Tribunal No. 98-19817.
Affirmed.
Fine Associates, P.A., Alan S. Fine, and Jonathan R. Rosenn, for appellant.
Cohen, Fox, P.A., Scott A. Burr, and Robert A. Cohen, for appellees.
Before COPE, FLETCHER, and RAMIREZ, JJ.
ON MOTION FOR REHEARING
Appellant Dubai Islamic Bank's (DIB) motion for rehearing and/or clarification is granted, the original opinion in this case, filed on December 13, 2000, is vacated, and the following corrected opinion is substituted therefor.
DIB appeals a final summary judgment of foreclosure that extinguishes its interest as a beneficiary of a constructive trust in a condominium unit on which appellee Attorneys' Title holds a mortgage. Because DIB's interest is inferior to that of Attorneys' Title, we affirm.
The record before this Court is devoid of any evidence that Private Funding, the assignor of Attorneys' Title's mortgage, had any knowledge of DIB's interest when it provided the loan to the foreclosure defendant below, Foutanga Dit Babani Sissoko. Additionally, the record is devoid of any evidence to refute Private Funding's affidavit and deposition testimony that it did not have actual or constructive knowledge of DIB's interest. Because a constructive trust beneficiary's interest in real property is, by definition, an unrecorded interest which is inferior to the interest of a bona fide purchaser of the real property, see General Coffee Corp. v. City Nat'l Bank of Miami, 828 F.2d 699, 704 (11th Cir. 1987), the final summary judgment in favor of Attorneys' Title was properly entered under the circumstances of this case.
Affirmed.