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Pross v. Caribank

District Court of Appeal of Florida, Fourth District
Mar 2, 1988
520 So. 2d 698 (Fla. Dist. Ct. App. 1988)

Opinion

No. 87-0504.

March 2, 1988.

Appeal from the Circuit Court for Palm Beach County, Richard B. Burk, J.

Morton Abrams of Abrams Finkel, P.A., and Cathy Jackson Lerman of Cathy Jackson Lerman, P.A., Fort Lauderdale, for appellants.

Dixon Thomas, Vero Beach, for appellee.


This case is presented to us with many interesting points, but because we have determined that a material issue of fact existed making entry of summary final judgment inappropriate, we leave those issues to a later time. A brief overview of the facts is necessary.

The appellants (Pross) contracted with Three "D" Corporation (Builder) to construct a residence for them on "Lot 1, Block 9," for which they paid the entire purchase price, $224,000.00. They later decided they wanted a different house, one to be built on Lot 3, Block 14. As a result, Pross was released from the contract involving Lot 1, Block 9 (which was sold to someone else), and entered into a contract for the purchase of Lot 3, Block 14. The Builder then obtained a loan from Caribank which encumbered Lot 3, Block 14, and two other lots not involved in this appeal. A question of fact exists as to whether this second contract was given to Caribank before it made its loan, and we conclude that the answer to the question is material. See Holl v. Talcott, 191 So.2d 40 (Fla. 1966). The trial court decided the question presumably on the basis that the mortgage of Caribank was recorded prior to the deed to Pross. The effect of knowledge by Caribank of the Pross contract, if in fact it had knowledge, was not considered.

The proceeds of this loan may have been partially used to purchase Lot 3, Block 14, and partially to pay for the construction of the house. We do not decide whether this mortgage was a purchase money mortgage, nor what its priority would be if it were.

According to Mr. Sarlo, president of the Builder, "I gave them (Caribank) a contract with . . . Pross' signature on it . . . and that would show their deposit and so forth." Question: So they (Caribank) were aware of the contract? Answer: "Right."

Reversed and remanded with directions to vacate the summary final judgment.

ANSTEAD and GLICKSTEIN, JJ., concur.


Summaries of

Pross v. Caribank

District Court of Appeal of Florida, Fourth District
Mar 2, 1988
520 So. 2d 698 (Fla. Dist. Ct. App. 1988)
Case details for

Pross v. Caribank

Case Details

Full title:GERALD PROSS AND FLORENCE PROSS, HIS WIFE, APPELLANTS, v. CARIBANK, A…

Court:District Court of Appeal of Florida, Fourth District

Date published: Mar 2, 1988

Citations

520 So. 2d 698 (Fla. Dist. Ct. App. 1988)