The Court notes that Defendant M I was in a creditor/debtor relationship with Defendant Bayonne Investments, LLC. Generally, the relationship of bank to borrower is that of creditor to debtor, in which the parties engage in arms-length transactions, and the bank owes no fiduciary responsibilities.Capital Bank v. MVB, Inc., 644 So.2d 515, 518 (Fla. 3d DCA 1994). A fiduciary relationship between a debtor and creditor arises only if the creditor has a joint proprietary interest in the enterprise, an expectation to share in profit or loss, or some arrangement apart and distinct from the loan. First Wisconsin Nat'l Bank v. Roose, 348 So.2d 610, 611 (Fla. 4th DCA 1977). Absent a proprietary or other pecuniary interest, the bank owes no duty of disclosure or other fiduciary duty to a potential borrower or guarantor. See Klein v. First Edina Nat'l Bank, 196 N.W.2d 619 (Minn.
Capital Bank v. MDV, Inc., 644 So. 2d 515, 518 (Fla. 3rd DCA 1994). A fiduciary relationship between a debtor and a creditor arises only if the creditor has a joint proprietary interest in the enterprise, an expectation to share in profit or loss, or some arrangement apart and distinct from the loan. First Wisconsin Nat'l Bank of Milwaukee v. Roose, 348 So. 2d 610, 611 (Fla. 4th DCA 1977). Absent a proprietary or other pecuniary interest, the bank owes no duty of disclosure or other fiduciary duty to a potential borrower or guarantor. See, e.g., Klein v. First Edina Nat'l Bank, 196 N.W.2d 619 (Minn. 1972) ("[W]hen a bank transacts business with a depositor or other customer, it has no special duty to counsel the customer and inform him of every material fact relating to the transaction — including the bank's motive, if material, for participating in the transaction — unless special circumstances exist, such as where the bank knows or has reason to know that the customer is placing his trust and confidence in the bank and is relying on the bank so to counsel and inform him.").
See Rothis v. M &I Marshall &Isley Bank, No. 8:10-cv-446-T-23EAJ, 2010 WL 3893960 (M.D. Fla. Sept. 29, 2010); 1000 Grandview Ass'n, Inc. v. Mt. Washington Assocs., 434 A.2d 796 (Pa. Super. Ct. 1981); First Wisc. Nat'l Bank of Milwaukee v. Roose, 348 So.2d 610 (Fla. Dist. Ct. App. 1977); Christiansen v. Philcent Corp., 313 A.2d 249 (Pa. Super. Ct. 1973). All of these cases, however, are distinguishable from the present case in that the bank was the mortgagee on the loan for the development and not, as in the present case, the purchaser of the development at a foreclosure sale.
In 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 Realty Investors, 359 So.2d 540 (Fla. 4th DCA 1978) (contract provisions inserted solely for protection of lender do not create duty to others on part of lender).
PER CURIAM. Affirmed. First Wisconsin Nat'l Bank v. Roose, 348 So.2d 610, 611 (Fla. 4th DCA 1977); § 718.116(6), Fla. Stat. (1985).
Absent some special circumstance, a mortgagee has no duty to subcontractors holding inferior liens either to supervise construction or to see that loan proceeds are used to pay construction expenses. Rice v. First 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.
However, appellees became more than 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 held liable for performance of express representations made to the buyer, for patent construction defects in the entire condominium project and for breach of any applicable warranties due to defects in the portions of the project completed by appellees. Accordingly, the trial court's order dismissing the complaints with prejudice is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
There is little, if any, analogy between the role of an architect in supervising the construction of a project and that of a lender who supplies the funds. As to Count XV on joint venture, we feel the complaint has the same deficiencies as were noted in First Wisconsin National Bank v. Roose, 348 So.2d 610, 611 (Fla. 4th DCA 1977): 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.