A creditor's bill is insufficient to establish equity if it fails to allege that the debtor held only equitable title or that the fraudulent conveyances obstruct the enforcement of a judgment.
A complainant files a creditor's bill alleging that certain property transfers were made to hinder, delay, and defeat judgments. The court considers whether the bill is sufficient to establish equity. Because the bill fails to allege that the judgment debtor held only equitable title, fails to allege that the fraudulent conveyances obstruct the enforcement of the judgment, and fails to request the vacation or cancellation of the transfers, the allegations are insufficient. The court applies the rule that a creditor's bill must allege specific facts to grant the matter equity. The court holds that the allegations are insufficient to support a bill to set aside fraudulent conveyances or a creditor's bill.
145 So. at 885 Lender's efforts to locate and quiet claims6 citing casesIt rests on the maxim that no one shall be enriched by another's loss....
- Suntrust Bank v. Riverside Nat. Bank, 792 So. 2d 1222 (Fla. 4th DCA 2001).published (It rests on the maxim that no one shall be enriched by another's loss....)
- Sherman v. Deutsche Bank Nat'l Trust Co., 100 So. 3d 95 (Fla. 3d DCA 2012).publishedLand Bank of Columbia v. Godwin, 107 Fla. 537 , 145 So. 883, 885 (1933); see also Brannon v. Hills, 111 Fla. 491 , 149 So. 556, 557 (1933); Eastern Nat’l Bank v. Glendale Fed.
- Velazquez v. Serrano, 43 So. 3d 82 (Fla. 3d DCA 2010).publishedLand Bank of Columbia v. Godwin, 107 Fla. 537 , 145 So. 883, 885 (1933); see also Brannon v. Hills, 111 Fla. 491 , 149 So. 556, 557 (1933); Eastern Nat’l Bank v. Glendale Fed.
- Aurora Loan Servs. LLC v. Senchuk, 36 So. 3d 716 (Fla. 1st DCA 2010).publishedSeveral years later, in Federal Land Bank of Columbia v. Godwin, 107 Fla. 537 , *719 145 So. 883, 885-86 (1933), the court again applied the doctrine, stating: In representing that there were no other incumbrances on the lands mortgaged, G…
- S. Colonial Mortg. v. Medeiros, 347 So. 2d 736 (Fla. 4th DCA 1977).publishedNOTES [1] United of Florida, Inc. v. Illini Federal Savings & Loan Association, 341 So.2d 793 (Fla.2d DCA 1977). [2] Id. [3] Federal Land Bank of Columbia v. Godwin, 107 Fla. 537 , 145 So. 883, at 885 (1933).
- Wolf v. Spariosu, 706 So. 2d 881 (Fla. 3d DCA 1998).publishedEquitable subrogation "is not available to a mere volunteer or stranger who, without any duty or obligation to intervene and without being so requested, pays the debt of another." West American Insurance Co. v. Yellow Cab Co., 495 So.2d 20…
Other citing cases
- Picker Fin. Grp. L.L.C. v. Horizon Bank, 293 B.R. 253 (M.D. Fla. 2003).published
- Mayfair Builders, Inc. v. Gordon (In re Gordon), 164 B.R. 706 (Bankr. S.D. Fla. 1994).published
- Resolution Trust Corp. v. Niagara Asset Corp., 598 So. 2d 1074 (Fla. 2d DCA 1992).published
- Washington SEC. Co. v. Tracy's Plumbing & Pumps, Inc., 166 So. 2d 680 (Fla. 2d DCA 1964).published
- Ulery v. Asphalt Paving, Inc., 119 So. 2d 432 (Fla. 1st DCA 1960).published
- R. D. Lamar, Inc. v. Ray, 182 So. 292 (Fla. 1938).published
- BancFlorida v. Hayward, 689 So. 2d 1052 (Fla. 1997).published
v.
Punta Gorda State Bank, Appellee
The bill in this case is hardly sufficient as' a creditor’s bill in that it nowhere alleges that the judgment debtor had only an equitable title to the property. George E. Sebring Co. v. O’Rourke 101 Fla. 885, 134 So. 556; Cowdery v. Herring 143 So. 433. Nor does the bill allege that the fraudulent conveyances are obstacles to the full enforcement of the judgment, not is there any prayer for the vacation or cancellation of such fraudulent conveyances, nor to remove them as clouds on the title to the property. Balsey v. Union Cypress Co. 110 So. 263, 92 Fla. 706; Punta Gorda State Bank v. Wilder 112 So. 569, 93 Fla. 301. The bill alleges that transfers of certain property were made for[*40] the purpose of hindering, delaying and defeating complainant’s judgments. This is in substance about all that the bill alleges. The only prayer of the bill was that the property be decreed to be the property of the judgment debtors. While no objection to the prayer of a bill can be raised by a motion to dismiss' or demurrer,’ the allegations of the bill in this case are not sufficient under the authorities' above cited, to give the bill equity, either as a bill to set aside fraudulent conveyances, or as a creditor’s bill.
The court below should have sustained appellant’s motion to dismiss the bill, and its failure to do so constitutes error for which the order appealed from must be reversed. The motion to dismiss sthe appeal will be denied.
Whether a motion to dismiss, under the 1931 Chancery Act, should be considered, for most practical purposes, as the equivalent of a general demurrer, so that the Chancellor would be authorized to grant the motion with leave to amend, or require an amendment within a specified time to meet the objections raised by the motion to dismiss, otherwise the bill to stand dismissed, are questions which we are not called upon to decide in this case, though they may arise upon further proceedings in the court below.. The writer is inclined to think the Chancellor has this authority. See in this connection Section 33 of the 1931 Chancery Act and Mr. Edward McCarthy’s Annotations of that Act recently published, pages 58-59.
Reversed and remanded.
Whitfield, P. J., and Buford, J., concur.
Davis, C. J., concurs in the opinion and judgment filed under Rule 21A.