Appellant/defendant appeals from a summary judgment in favor of appellee/plaintiff Bank in a suit wherein the appellee sought to foreclose a note and mortgage given by appellant.
The appellee Bank was the assignee from appellees Rogers and Blythe of a promissory note and purchase money mortgage executed and delivered by the appellant. The note, executed April 28, 1972, contains the following stipulation:
Rogers and Blythe assigned the promissory note and mortgage in question to the appellee to secure their own note. Appellee sued appellant and joined Rogers and Blythe as defendants alleging a default on their note as well as a default on appellant's note.
Appellant answered incorporating an affirmative defense that fraud on the part of Rogers and Blythe induced the sale which gave rise to the purchase money mortgage. Rogers and Blythe denied the fraud. In opposition to appellee Bank's motion for summary judgment, the appellant submitted an affidavit in support of its allegation of fraud on the part of agents of Rogers and Blythe. The trial court held the appellee Bank was a holder in due course of the
The note having incorporated the terms of the purchase money mortgage was not negotiable. The appellee Bank was not a holder in due course, therefore, the appellant was entitled to raise against the appellee any defenses which could be raised between the appellant and Rogers and Blythe. Since appellant asserted an affirmative defense of fraud, it was incumbent on the appellee to establish the non-existence of any genuine issue of any material fact or the legal insufficiency of appellant's affirmative defense. Having failed to do so, appellee was not entitled to a judgment as a matter of law; hence, we reverse.
The note, incorporating by reference the terms of the mortgage, did not contain the unconditional promise to pay required by Fla. Stat. § 673.3-104(1) (b).
Appellee Bank relies upon Scott v. Taylor, 1912, 63 Fla. 612, 58 So. 30, as authority for the proposition that its note is negotiable. Scott, however, involved a note which stated: "this note secured by mortgage." Mere reference to a note being secured by mortgage is a common commercial practice and such reference in itself does not impede the negotiability of the note. There is, however, a significant difference in a note stating that it is "secured by a mortgage" from one which provides, "the terms of said mortgage are by this reference made a part hereof." In the former instance the note merely refers to a separate agreement which does not impede its negotiability, while in the latter instance the note is rendered non-negotiable. See Fla. Stat. §§ 673.3-105(2) (a); 673.3-119.
As a general rule the assignee of a mortgage securing a non-negotiable note, even though a bona fide purchaser for value, takes subject to all defenses available as against the mortgagee. 22 Fla.Jur., Mortgages, §§ 555-56. Appellant raised the issue of fraud as between himself and
Accordingly, the entry of a summary final judgment is reversed and the cause remanded for further proceedings.
McNULTY, C.J., and HOBSON, J., concur.
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(b) Contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this chapter.
(a) States that it is subject to or governed by any other agreement.