[RPPTL LandTen] Assignment of Lease - Can the Assignor evict the Assignee?

[David Weisman]

Could the foreclosure of the security agreement (chattel mortgage) be styled similar to a foreclosure of a real estate mortgage and include a prayer for relief that plaintiff be put into possession? N the writ follows, but without going through the second count of the declaratory judgment. It seems if the remedy is in the security agreement, the court can grant it as part of that main action.

David  Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
Trade Center South, Suite 700
100 West Cypress Creek Road
Ft. Lauderdale, FL 33309
Phone 954-491-1120
Toll Free 888-491-1120
Direct Phone 954-343-6941
Direct Fax 954-343-6942

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 08, 2013 4:48 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment of Lease - Can the Assignor evict the Assignee?

Hello Members: I have a unique fact pattern and before I file suit, I'd be interested to hear other member's opinion:

Facts:

Tenant operates a retail establishment.  Tenant sells its "business" and takes back a promissory note and security agreement.  Tenant assigns its rights in the lease to the purchaser by way of an Assignment of Lease and Collateral Assignment, which provides, inter alia, that upon default in the note or security agreement, and after 10 days written notice to cure, seller/tenant may re-enter and take possession of the collateral and operate the business through the unexpired term of the lease. Buyer defaults on promissory note and will not peaceably surrender possession. Buyer remains current on rent payments to landlord.

Issue:  Seller/tenants wants to exercise its right of re-entry and sue on the note.

Causes of action:  Foreclosure of security agreement, breach of the note, breach of personal guaranty and  Declaratory Judgment that (1) buyer is in default, (2) tenant/seller reserved right of re-entry, and (3) clerk to issue writ of possession.

Question:  Does anyone have an opinion on another type of cause of action to adjudicate seller/tenant's right of re-entry?  Tenant, as assignor, remains liable under the lease, but I see no way to evict or remove the tenant other by way of the remedy given in the Assignment by way of a declaratory judgment.

Thank you for your time.

Regards,


[AJH Logo mark]


Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F. 561.989.3204

www.horkylaw.com<http://www.horkylaw.com>


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