The 2023 Florida Statutes (including Special Session C)

Title XL
REAL AND PERSONAL PROPERTY

Chapter 697
INSTRUMENTS DEEMED MORTGAGES AND THE NATURE OF A MORTGAGE

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F.S. 697.04

697.04 Future advances may be secured.—

(1)(a) Any mortgage or other instrument given for the purpose of creating a lien on real property, or on any interest in a leasehold upon real property, may, and when so expressed therein shall, secure not only existing indebtedness, but also such future advances, whether such advances are obligatory or to be made at the option of the lender, or otherwise, as are made within 20 years from the date thereof, to the same extent as if such future advances were made on the date of the execution of such mortgage or other instrument, although there may be no advance made at the time of the execution of such mortgage or other instrument and although there may be no indebtedness outstanding at the time any advance is made. Such lien, as to third persons without actual notice thereof, shall be valid as to all such indebtedness and future advances from the time the mortgage or other instrument is filed for record as provided by law.

(b) The total amount of indebtedness that may be so secured may decrease or increase from time to time, but the total unpaid balance so secured at any one time shall not exceed a maximum principal amount which must be specified in such mortgage or other instrument, plus interest thereon; except that the mortgagor or her or his successor in title is authorized to file for record a notice limiting the maximum principal amount that may be so secured to an amount not less than the amount actually advanced at the time of such filing, provided a copy of such filing is also sent by certified mail to the mortgagee and, in the case of an open-end or revolving credit agreement, the mortgagor surrenders to the mortgagee all credit cards, checks, or other devices used to obtain further advances at the time of filing the notice, which notice shall be recorded and shall be effective from the date of filing. Notwithstanding the foregoing, any increase in the principal balance as a result of negative amortization or deferred interest shall be secured by the mortgage; and any disbursements made for the payment of taxes, levies, or insurance on the property covered by the lien, and any advances or disbursements made under a construction loan agreement referred to in a mortgage to enable completion of the contemplated improvement, with interest on such advances or disbursements, are secured by the mortgage or other instrument even though the mortgage or other instrument does not provide for future advances, or the advances or disbursements cause the total indebtedness to exceed the face amount stated in the instrument. This subsection does not apply to any mortgages, shipping contracts, or other instruments made and given by naval stores operators and producers to secure existing loans and future advances by naval stores factors.

(2) As against the rights of creditors or subsequent purchasers for a valuable consideration, actual notice or record notice of advances to be made at the option of the lender, under the terms of such mortgage or other instrument, shall be valid only as to such advances as are to be made within 20 years from the date of such mortgage or other instrument; however, this subsection does not apply to any mortgages, shipping contracts, or other instruments made and given by naval stores operators and producers to secure existing loans and future advances by naval stores factors. Notwithstanding anything in this section to the contrary, future advances made pursuant to the terms of a reverse mortgage loan (as defined in s. 103(bb) of the federal Truth in Lending Act, 15 U.S.C. ss. 1601 et seq.) shall be secured to the same extent as if such future advances were made on the date of execution of the mortgage, irrespective of the date of any such advance.

(3) Any such mortgage or other instrument shall be prior in dignity to all subsequent encumbrances, including statutory liens, except landlords’ liens.

History.—ss. 1, 2, 3, ch. 20846, 1941; s. 1, ch. 28116, 1953; ss. 1, 2, ch. 61-135; s. 3, ch. 63-212; s. 1, ch. 70-34; s. 11, ch. 83-267; s. 10, ch. 83-311; s. 215, ch. 92-303; s. 7, ch. 96-210; s. 1761, ch. 97-102.

F.S. 697.04 on Google Scholar

F.S. 697.04 on Casetext

Amendments to 697.04

Arrestable Offenses / Crimes under Fla. Stat. 697.04

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 697.04.

Annotations, Discussions, Cases:

Cases from cite.case.law:

STEINBERG, v. WELLS FARGO BANK, N. A., 178 So. 3d 473 (Fla. Dist. Ct. App. 2016)

. . . Steinberg . reasons that section 201.08(l)(b) should be read in conjunction with section 697.04(l)(b) . . . Steinberg points to language in section 697.04(l)(b), which states: “any increase in the principal balance . . . Reading sections 201.08(l)(b) and 697.04(l)(b) together, Steinberg concludes “that any increase in the . . . The problem with this argument is. that nothing in section 697.04 expands or contracts the concept of . . . Section 697.04 primarily concerns the securing of future advances under a mortgage; it is not a taxation . . .

CLEVELAND v. CROWN FINANCIAL, LLC,, 183 So. 3d 1206 (Fla. Dist. Ct. App. 2016)

. . . Paragraph 24 provided: Future Advances: Pursuant to F.S. 697.04, this mortgage shall secure not only . . .

NIKOOIE, v. JPMORGAN CHASE BANK, N. A., 183 So. 3d 424 (Fla. Dist. Ct. App. 2014)

. . . of indebtedness subject to the tax levied by this section secures future advances, as provided in s. 697.04 . . . Failure to pay the tax shall not affect the lien for any such future advance given by s. 697.04, but . . . subsequent advances, while "future advance” refers to subsequent disbursements described in section 697.04 . . .

WANE, v. LOAN CORPORATION, N. A. FSB,, 552 F. App'x 908 (11th Cir. 2014)

. . . . § 697.04. . . . secure future advances will contain an express ‘future advances’ provision consistent with section 697.04 . . . Stat. § 697.04(1). . . .

GLENN WRIGHT HOMES DELRAY LLC B. Jr. v. A. LOWY,, 18 So. 3d 693 (Fla. Dist. Ct. App. 2009)

NACK HOLDINGS, LLC, v. KALB,, 13 So. 3d 92 (Fla. Dist. Ct. App. 2009)

. . . secure future advances will contain an express “future advances” provision consistent with section 697.04 . . .

RAZAK, v. MARINA CLUB OF TAMPA HOMEOWNERS ASSOCIATION, INC. a, 968 So. 2d 616 (Fla. Dist. Ct. App. 2007)

. . . because the future advances clause of the mortgage provides him the protection provided by section 697.04 . . . Razak thus suggests that the provisions of section 697.04 prevail over those of section 95.281 when a . . . Section 697.04 specifies that such a lien only secures those future advances that “are made within [twenty . . . advances were made, any potential lien that might have encumbered the property pursuant to section 697.04 . . .

R. GARDNER, v. E. GULDI,, 724 So. 2d 186 (Fla. Dist. Ct. App. 1999)

. . . This mortgage is an open-ended mortgage authorized by section 697.04, Florida Statutes, and contains . . .

UNITED NATIONAL BANK, v. S. TELLAM, III, D., 644 So. 2d 97 (Fla. Dist. Ct. App. 1994)

. . . secure not only existing indebtedness, but also such future advances ... as are made within 20 years_” § 697.04 . . .

WHITICE BONDING AGENCY, INC. a v. R. LEVITZ,, 559 So. 2d 755 (Fla. Dist. Ct. App. 1990)

. . . . § 697.04(l)(a), Fla.Stat. (1987). . . .

NCNB NATIONAL BANK OF FLORIDA, N. A. a v. BARNETT BANK OF TAMPA, N. A. a, 560 So. 2d 360 (Fla. Dist. Ct. App. 1990)

. . . Section 697.04(l)(b), Florida Statutes (1985), which provides a method for the mortgagor to limit the . . . Section 697.04(1)(b) does not address the circumstances of this case. . . . Thus, we do not agree with appel-lee’s argument which would interpret section 697.04(1)(b) to permit . . . Absent specific statutory language which does not exist in section 697.04(1)(b), we do not conclude that . . .

In MAR- BEL CABINETS, INC., 91 B.R. 172 (Bankr. M.D. Fla. 1988)

. . . mortgages on real property as opposed to personal property and as such are governed by Florida Statute 697.04 . . . by the State of Florida, future advances with reference to personal property are governed by Section 697.04 . . . Under Florida Statute § 697.04(3), there is no requirement for the enforcement of a future advance clause . . .

UNITED STATES v. FIRST NATIONAL BANK OF CRESTVIEW,, 513 So. 2d 179 (Fla. Dist. Ct. App. 1987)

. . . Under Section 697.04(l)(a), Florida Statutes, any mortgage which secures not only existing indebtednesses . . .

In TACO ED S, INC. s R. MICHALSKI, s v. STATE BANK AND TRUST, s, 63 B.R. 913 (Bankr. N.D. Ohio 1986)

. . . Securities to an undisclosed party for Twenty Thousand Six Hundred Ninety-seven and 04/100 Dollars ($20,-697.04 . . .

In SEL- O- RAK CORPORATION, ASSOCIATES COMMERCIAL CORPORATION, v. SEL- O- RAK CORPORATION,, 26 B.R. 223 (Bankr. S.D. Fla. 1982)

. . . of indebtedness subject to the tax levied by this section secures future advances, as provided in s. 697.04 . . . Sec. 697.04. Thus, F.S.A. . . .

URANSKY, v. FIRST FEDERAL SAVINGS LOAN ASSOCIATION OF FORT MYERS,, 684 F.2d 750 (11th Cir. 1982)

. . . . § 697.04, the future advance was secured by the future advances clause in the mortgage. . . . Noting that Fla.Stat.Ann. § 697.04 (West Supp. 1982) contains no requirement that subsequent notes make . . . essential is a showing that the future advances clause in the mortgage complies with Fla.Stat.Ann. § 697.04 . . . It is undisputed that the future advances clause in the Brown mortgage complies with Fla.Stat.Ann. § 697.04 . . . FIa.Stat.Ann. § 697.04(1) (West Supp. 1982) reads as follows: (1) Hereafter, any mortgage or other instrument . . .

URANSKY, v. FIRST FEDERAL SAVINGS LOAN ASSOCIATION OF FORT MYERS,, 684 F.2d 750 (11th Cir. 1982)

. . . . § 697.04, the future advance was secured by the future advances clause in the mortgage. . . . Noting that Fla.Stat.Ann. § 697.04 (West Supp. 1982) contains no requirement that subsequent notes make . . . essential is a showing that the future advances clause in the mortgage complies with Fla.Stat.Ann. § 697.04 . . . It is undisputed that the future advances clause in the Brown mortgage complies with Fla.Stat.Ann. § 697.04 . . . Fla.Stat.Ann. § 697.04(1) (West Supp. 1982) reads as follows: (1) Hereafter, any mortgage or other instrument . . .

CABOT, CABOT FORBES LAND TRUST, a v. FIRST NATIONAL BANK OF FORT WALTON BEACH, FORT WALTON BEACH, FLORIDA,, 369 So. 2d 89 (Fla. Dist. Ct. App. 1979)

. . . The above-mentioned statute governing open-end mortgages (§ 697.04, Fla.Stat.) contains no requirement . . .

STEWART ARMS APARTMENTS, LTD. a v. STATE DEPARTMENT OF REVENUE, 362 So. 2d 1003 (Fla. Dist. Ct. App. 1978)

. . . , or other lien subject to the tax levied by this chapter secures future advances, as provided in § 697.04 . . .

SNEAD CONSTRUCTION CORPORATION, a v. FIRST FEDERAL SAVINGS LOAN ASSOCIATION OF ORLANDO, 342 So. 2d 517 (Fla. Dist. Ct. App. 1976)

. . . Section 697.04, F.S.1975, provides that a mortgage lien on real property shall secure repayment not only . . . Moreover, the lenders’ mortgages satisfy the requirements of § 697.04, F.S. 1975. . . . speak of a construction loan mortgage as one securing “future advances,” and therefore subject to § 697.04 . . . intended to limit the time in which future advances could be made under the security of a mortgage, § 697.04 . . . Just as before 1941,‘it was held afterwards without aid from § 697.04 that advances upon a note and mortgage . . .

INDUSTRIAL SUPPLY CORPORATION v. W. BRICKER, 306 So. 2d 133 (Fla. Dist. Ct. App. 1975)

. . . . § 697.04 (1971). . . . Supreme Court announced support for this view in a case arising prior to the passage of Fla.Stat. § 697.04 . . . Section 697.04 originally pertained only to agricultural loans. . . . The court held that the mortgage fell squarely within the protection of § 697.04 such that its lien was . . . However, in the passage of § 697.04 and subsequent amendments thereto, the legislature appears to have . . .

MASON v. S. AVDOYAN,, 299 So. 2d 603 (Fla. Dist. Ct. App. 1974)

. . . The resolution of Point 1 requires a determination of the applicability to personal property of Sec. 697.04 . . . Sec. 697.04, as it existed at the time the security agreement in question was executed, covered both . . . Sec. 697.04 likewise permits this, but goes on to affirmatively require that the instrument state the . . . The question then devolves whether this provision of Sec. 697.04 was superseded by the Code, because . . . As a result, section 697.04 has been amended to delete any reference to personal property.” . . .

BANKERS LIFE AND CASUALTY COMPANY, v. CAROL CITY UTILITIES, INC. Co., 216 So. 2d 808 (Fla. Dist. Ct. App. 1968)

. . . levies, or insurance on the property described therein is specified in said deed as required by Section 697.04 . . .

BOND- HOWELL LUMBER COMPANY, a v. FIRST NATIONAL BANK OF EAU GALLIE, a, 200 So. 2d 555 (Fla. Dist. Ct. App. 1967)

. . . . § 697.04, and that defendant’s judgment of November 9, 1964, was not recorded until July 14, 1965. . . .

H. CLARK, a v. J. HOWARD,, 192 So. 2d 302 (Fla. Dist. Ct. App. 1966)

. . . Section 697.04, Florida Statutes, F.S.A. . McEwen v. . . .

SILVER WATERS CORPORATION v. L. MURPHY, 177 So. 2d 897 (Fla. Dist. Ct. App. 1965)

. . . We find that the mortgage of First Federal falls squarely within the protection of Fla.Stat. 697.04, . . . Fla.Stat. 697.04(3), F.S.A. On this point we reverse. . . .

SIMPSON, a v. SIMPSON,, 123 So. 2d 289 (Fla. Dist. Ct. App. 1960)

. . . Section 697.04, Florida Statutes, F.S.A., provides: “(1)- Hereafter, any mortgage or other instrument . . . Fender, supra, although the scope of such a provision was said to be limited by section 697.04, Florida . . .

CONNER AIR LINES, INC. F. A. v. AVIATION CREDIT CORPORATION, L. B. L. B. AVIATION CREDIT CORPORATION, v. CONNER AIR LINES, INC. F. A. G., 280 F.2d 895 (5th Cir. 1960)

. . . . § 697.04. . . .

UNITED STATES v. AMERICAN NATIONAL BANK OF JACKSONVILLE, 255 F.2d 504 (5th Cir. 1958)

. . . . § 697.04. Downing v. First National Bank, Fla., 81 So.2d 486. . . .

W. H. DOWNING B. v. FIRST NATIONAL BANK OF LAKE CITY, a, 81 So. 2d 486 (Fla. 1955)

. . . Fender, 140 Fla. 448, 192 So. 167, although a statute enacted in 1941, now being Section 697.04 F.S.1951 . . .

LEWIS, v. J. KELLY,, 75 So. 2d 761 (Fla. 1954)

. . . after Art Lewis pledged his stock to Frank Miller to secure future advances, and that under Section 697.04 . . .