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Capabianco v. Bork

Decided: May 26, 1969.

VITO CAPABIANCO AND JULIA CAPABIANCO, HIS WIFE, PLAINTIFFS,
v.
JOHN L. BORK, JOSEPHINE M. BORK, HIS WIFE, AND FEDERAL NATIONAL MORTGAGE ASSOCIATION, DEFENDANTS



Lane, J.s.c.

Lane

This is an action for partition with a counterclaim for subrogation to the rights of a prior mortgagee and for strict foreclosure. The facts are not in dispute. The matter is now before the Court on final hearing. The plaintiffs did not press the complaint nor appear at the final hearing, having no objection to whatever disposition to be made by the Court on the counterclaim.

On June 14, 1961 George W. Fink and Jeannette V. Fink, his wife, acquired title to the premises in question, executing a mortgage to J.I. Kislak Mortgage Corporation (Kislak) to secure payment of a loan of $10,600. This mortgage was subsequently assigned to First Federal Savings & Loan Association of Clearwater, Florida (First Federal).

On September 25, 1961 Vito Capabianco obtained a judgment against a George Fink for $1,100 and $76.03 costs.

The Finks conveyed the premises on July 23, 1963 to the Whale Agency subject to the 1961 mortgage. At that time George W. Fink signed an affidavit that the judgment of Capabianco on record was not against him but against another of similar name. The Whale Agency conveyed the property to Vito Doria and Rose Doria, his wife, subject to the first mortgage by deed dated August 13, 1963. By contract dated November 18, 1965 the Dorias contracted to sell the premises to the defendants John L. Bork and Josephine Bork for the sum of $12,500. In connection with

the purchase Kislak on December 6, 1965 issued to the Borks a commitment for a $12,500 FHA mortgage.

On January 14, 1966 the prior mortgagee, First Federal, commenced a suit to foreclose the 1961 mortgage, joining Vito Capabian as a defendant. A lis pendens was filed January 21, 1966.

The Borks' title and the FHA purchase money mortgage were closed March 2, 1966, the deed and mortgage being recorded March 4, 1966. At the closing reliance was placed on the Fink affidavit referred to above. On April 1, 1966 this mortgage was assigned to the defendant Federal National Mortgage Association (FNMA). Out of the proceeds of the present existing $12,500 mortgage, $10,473.45 was used to pay off the 1961 mortgage.

After the Borks' closing, the closing attorney sought to obtain a dismissal of the foreclosure action. For the first time he became aware of the fact that the Capabianco judgment had been set up by the foreclosing attorney as a junior lien. The judgment creditor had filed an answer and would not consent to a dismissal of the action unless he was paid the amount of his judgment. It subsequently developed that the affidavit of George W. Fink which was relied upon at the Whale Agency, Doria and Bork closings was not true as to the Capabianco judgment.

On June 6, 1966 First Federal assigned the 1961 mortgage to the American Title Insurance Company. In the foreclosure action the assignee was substituted as plaintiff. On January 11, 1968 this Court entered an order in the foreclosure action denying the substituted plaintiff's motion for summary judgment and granting a motion of the defendant Capabianco dismissing the complaint.

The Capabiancos purchased George W. Fink's interest at an execution sale under the judgment and obtained a sheriff's deed dated February 3, 1967 of Fink's interest in the premises.

The present action was commenced in April 1968 by Vito and Julia Capabianco for partition ...


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