Appellant Alphonso McCray filed a complaint alleging that a Satisfaction of Mortgage bearing his forged signature has been recorded in the public records of Alachua County, Florida. He sought various remedies against the appellees. The appellees were dismissed as parties to the proceedings by the trial court.
McCray appeals several orders,
On November 3, 1978, certain property was conveyed to the appellant McCray by a contract for deed. On November 7, 1980, appellant assigned the contract for deed to Helen and Nicholas Skolsky, and Ronald and Marilyn Palumbo. At that time, the Skolskys and Palumbos executed a mortgage on the property and promissory note in favor of McCray.
On May 2, 1981, the Skolskys and the Palumbos allegedly, according to the complaint, had McCray’s name forged to a satisfaction of mortgage. (The record contains a sworn affidavit, in which a gra-phoanalyst [hand writing expert] concluded that the signature of McCray on the satisfaction was not McCray’s handwritten signature.) It is asserted that Nicholas Skol-sky and Rоnald Palumbo witnessed the satisfaction and Nicholas Skolsky had his business associate, George Rowe, Jr., notarize the satisfaction. The satisfaction of this mortgage was recorded in the public records of Alachua County, Florida. Following this recording, various title transactions occurred involving Helen Skolsky, and the American National Bank, until ultimately the property was conveyed, on November 17, 1982, to aрpellees Timothy and Janie McCluney. The McCluneys took the realty subject to a mortgage and note in favor of the American National Bank.
Nicholas Skolsky filed for bankruptcy and was discharged on February 28, 1983. One of the debts discharged was the principal sum of $25,647.35, plus interest, owed to appellant McCray under the promissory note in question.
When McCray filed the suit involved here on May 10, 1985, he did not join Skolsky. Appеllant McCray sought to void the allegedly fraudulently forged satisfaction of the mortgage given to him by the Skolskys and Palumbos. He also attempted to proceed in rem to foreclose on the mortgage against the present owners. He sought damages for fraud against four of the five alleged co-conspirators to the forgery; Helen Brourton Adams (Skolsky), Ronald and Marilyn Palumbo, and George Rowe, Jr.
On Octоber 16, 1985, appellant filed an amended complaint joining Skolsky and the American National Bank. Both Skolsky and the American National Bank were served on October 21, 1985.
It was argued to the trial court that 1) the automatic stay pursuant to 11 U.S.C. section 362 prevented the trial court from allowing Skolsky to be joined; 2) appellant was required to seek approval of the U.S. Bankruptcy Court before he cоuld take action against Skolsky in State court; and, 3) Skolsky is an indispensable party to this action. The trial court ultimately ruled against appellant by dismissing all parties except Helen Skolsky (Adams).
In dismissing the parties, the trial court apparently reasoned that the automatic stay issued in bankruptcy court pursuant to 11 U.S.C. section 362 was still in effect as to Skolsky, and that the bankruptcy court had retained jurisdiction ovеr Skolsky and the subject matter after it discharged him in bankruptcy pursuant to 11 U.S.C. section 727. The court found Skolsky to be
We affirm the trial court’s order dated September 9, 1986, because the trial court lacked jurisdiction over Nicholas Skolsky and because Skolsky was an indispensable party. According to 11 U.S.C. section 362 of the bankruptcy code,
In his amended complaint, appellant names Nicholas Skolsky and alleges that he: 1) executed a mortgage deed and promissory note to him in the amount of $25,-647.35, 2) jointly or severally, with consent and knowledge, fraudulently had a Satisfaction of Mortgage executed by having appellant’s signature forged on the satisfaction document, and, 3) fraudulently recorded the document. Further, although exрressing that, due to Skolsky’s discharge in bankruptcy he cannot recover money damages from him, appellant sues Skolsky for rescission of the satisfaction of the mortgage (excepting costs and attorneys fees against him). In addition appellant again names Skolsky and charges him with defaulting on the mortgage through anticipatory breach, and seeks to ultimately recover the property.
We agreе with appellees’ argument that the amended complaint clearly indicates appellant’s intention to establish Skolsky’s personal liability as being a participant in the offenses of fraud alleged. The Discharge of Debtor Order concerning Skol-sky, issued by the bankruptcy court, and the pertinent sections of the bankruptcy code, have convinced us that the bankruptcy court retained exclusive jurisdiction over all claims against Skolsky that seek a determination of personal liability for fraud.
Subsection (c) [of § 523]4 requires a creditor who is owed a debt that may be excepted from discharge under paragraph (2), (4), or (6) (false representations ...). to initiate proceedings in bankruptcy court for an exception to discharge. If the creditor does not act, the debt is discharged.
See A. Herzog, and L. King, Collier Pamphlet Edition Bankruptcy Code, 216 (1987) (emphasis supplied).
In order to seek redress against Skolsky, appellant should have pursued the remedy available to him in federal court, or should have asked permission of the bankruptcy court to relinquish jurisdiction so that he could proceed in state court on the fraud claims which may have led to the foreclosure action. The record reveals that appellant let a year go by without pursuing either of these available procedures which would have provided a resolution of his legal question. Not until July 3, 1986, in his motion for rehearing, did appellant indicate that he would “file an appropriate pleading with the Federal Bankruptcy Court to determine whether Nicholas Skolsky ... can be properly joined, under what circumstances and for what matters.,” However, by September 9, 1986, when the trial court ruled on appellant’s motions he had still not approached the bankruptcy court on thеse matters. Appellant had legal recourse but, for whatever reason, chose not to pursue the route available to him which would have possibly brought Skolsky within the trial court’s jurisdiction.
We turn now to a discussion of the determination that Skolsky was an indispensable party. Appellant argues, in effect, that his lien involved on the realty survived the bankruptcy and could be the subject of a suit in state court without Skolsky’s рresence. We disagree. Appellant does not at this point have a lien. As appellant repeatedly admits, he must establish that his signature was fraudulently placed on the satisfaction document before he can foreclose on the mortgage. Until that is accomplished, there is no lien. The cases cited by appellant suggesting a contrary view are distinguishable.
In establishing that appellant’s signature was fraudulently placed on the
In one count of his amended complaint appellant seeks rescission of the satisfaction that Skolsky was allegedly responsible for, which ostensibly released Skolsky from his mortgage obligation. Also, as appel-lees asserted, Skolsky is still grantor of a mortgage deed, maker of a promissory note, assignee (and now assignor) of a contract for deed, and beneficiary of and witness to a mortgage release, with rights and duties stemming from his participation in these transactions. “The general rule is that where rights sued upon arise from a contract all parties to it must be joined. ... Where there is an assignment of contractual rights, an assignee must be joined in an action which may impact on the as-signee’s rights.” 59 Am.Jur.2d Parties § 113. Whatever determinations the court made as to validity of these transactions would be incomplete because Skolsky will not be bound, nor will his interest or rights in the property be adjudicated.
Even if, as appellant contends, this action cannot affect Skolsky as he has no express interest in the property itself, we agree with the argument of appellee Rowe (the notary on the Satisfaction) that appellant’s complaint alleges not only intentional tort, but also in the alternative, negligence. Therefore, a jury could find Skolsky intentionally, or negligently misled Rowe, Jr., as notary, thereby giving Rowe, Jr., a claim against Skolsky. Section 768.-31 Florida Statute (1985), provides that, “when two or more persons become jointly or severally liable in tort for the same injury to ... property, ... there is a right of contribution among them even though judgment has not been recovered against all or any of them.” Further, we agree with Rowe’s assertion that any liability, and degrees thereof, as to the alleged fraudulent signing and recording of the Satisfaction should be established in a single trial, and that to prevent multiple suits with possible inconsistent results is exactly the purpose behind the indispensable party doctrine. Further, as appellees contend, it was within the trial court’s discretion in attempting to avoid the necessity of multiple suits, to determine that, if not an indispensable party, Skolsky is a necessary party that the court believes should be present before it issues a ruling resolving the issues raised in the amended complaint. 39 Fla.Jur.2d Parties § 14. See also Carter v. Howarth,
We found cases cited by appellant on this point distinguishable and unpersuasive.
Further, we disagree with appellant’s argument that, because appellees’ right of contribution will not arise until they have paid off a judgment against them, they do not have any ripe claims nоw, and therefore, cannot be harmed by the continuation of this litigation without Skolsky. Appellant’s focus is misplaced, for he ignores the situation that these same parties must be subjected to, first his litigation to establish fraud, and then if fraud is established, his foreclosure proceedings, forcing them to defend their rights in what are already lengthy legal proceedings. Then he suggests that they will not be harmed by having to separately pursue their legal rights against Skolsky after appellant’s own action is resolved. Again, it appears that this duplication of judicial and litigant effort is exactly what the doctrine of joinder was designed to prevent.
As to issue IV, the trial court treated the McCluneys’ and the American Bank’s motions to dismiss as motions for Judgment on the Pleadings in the interest of judicial economy, and the record supports the court’s stаtement in its order that a full and complete opportunity was offered to appellant to present his arguments on this issue at the hearing on the motion for rehearing held September 3, 1986.
Rule 1.140(h) Florida Rules of Civil Procedure provides that a defense of failure to join an indispensable party may be raised in a motion for judgment on the pleadings. Appellant has failed to show how he was prejudicеd by the trial court’s actions, and has not established that the trial court abused its discretion by treating the appel-lees’ motions to dismiss as motions for judgments on the pleadings.
Also, on appeal appellees Rowe and Palumbo argue that the Satisfaction allegedly fraudulently signed, was recorded on May 22, 1981, and Skolsky was not served until October 21, 1985, after the four year statute of limitations for fraud or to rescind a contract had expired. See §§ 95.11 (3)(j) and (i), Florida Statute (1985). However, we decline to address this issue because the record reveals that this affirmative defense was not raised below, and was not ruled on by the trial court.
Appellees McCluneys and the American National Bank point out correctly that 11 U.S.C. Section 727 (b) provides that:
EXCEPT AS PROVIDED IN SECTION 523 of this title, a discharge under section (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter ... (emphasis supplied).
The trial court did not err by finding he lacked jurisdiction over Skolsky based on the above provision of 11 U.S.C. section 727 in combination with the order of the bankruptcy court whereby that court clearly retained exclusive jurisdiction over Nicholas Skolsky. We did not find that either section 523 or section 727 of thе bankruptcy code provided for the exception that appellant seeks to carve out which would allow him to proceed against Skolsky independently of the bankruptcy court, and we find that without Skolsky as a party to the suit, appellant cannot proceed in the trial
Affirmed.
Notes
. Orders dismissing defendants George Rowe, Ronald and Marilyn Palumbo, Timothy and Janie McCluney, and the American National Bank; Order denying appellant’s motion for summary judgment, and motion to strike additional affirmative defenses; Order denying rehearing of dismissal of defendant Rowe; Order denying rehearing of dismissal of defendants Palumbo; Order denying appellant's motion to strike Skolsky’s special appearance of his counsel and сhallenge to jurisdiction and finding
. Section 11 U.S.C. section 362 provides in pertinent part:
§ 362. Automatic stay.
(a)Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970 (15 U.S.C. 78eee(a)(3)), operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
(c) Except as provided in subsections (d), (e), and (f) of this section.—
(1) the stay of an act against property of the estate under subsection (a) of this section continues until such property is no longer property of the estate; and
(2) the stay of any other act under subsection (a) of this section continues until the earliest of—
(A) the time the case is closed;
(B) the time the case is dismissed; or
(C) if the case is a case under chapter 7 of this title concerning an individual or a case under chapter 9, 11, 12, or 13 of this title, the tíme a discharge is granted or denied, (emphasis supplied).
. The Discharge of Debtor Order on Nicholas Skolsky issued by Judge Sauls of the Bankruptcy Court in the Northern District of Florida, dated February 28, 1983 provides as follows:
DISCHARGE OF DEBTOR
It аppearing that the person named above has filed a petition commencing a case under title 11, United States Code on 10/15/83, that an order for relief was entered under chapter 7 and that no complaint objecting to the discharge of the debtor was filed within the time fixed by the court [or that a complaint objecting to discharge of the debtor was filed and, after due notice and hearing, was nоt sustained], it is ordered that
1. The above-named debtor is released from all dischargeable debts.
2. Any judgment heretofore or hereafter obtained in any court other than this court is null and void as a determination of the personal liability of the debtor with respect to any of the following:
(a) debts dischargeable under 11 U.S.C. § 523;
(b) unless heretofore/or hereafter determined by order of this court to be nondis-chargeable, debts alleged to be excepted from discharge under clauses (2), (4) and (6) of 11 U.S.C. § 523(a);
(c) debts determined by this court to be discharged under 11 U.S.C. § 523(d).
3.All creditors whose debts are discharged by this order and all creditors whose judgments are declared null and void by paragraph 2 above are enjoined from instituting or continuing any action or employing any process to collect such debts as personal liabilities of the above-named debtor, (emphasis supplied).
.11 U.S.C. § 523 of the Bankruptcy Code provides in pertinent part:
§ 523. Exceptions to discharge.
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by—
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider’s financial condition;
(c) Except as provided in subsection (a)(3)(B) of this in [sic] section, the debtor shall be discharged from a debt of a kind specified paragraph (2), (4), or (6) of subsection (a) of this section, unless, on request of the creditor to whom such debt is owed, and after notice and a hearing, the court determines such debt to be excepted from discharge under paragraph (2), (4), or (6), as the case may be, of subsection (a) of this section.
.In re Weathers,
. Farish v. Banker Multiple Line Insurance Company,