The Imposition For A Constructive Trust Under Florida Law

Choose too often a business owner learns that a confident employee or advisor must taken advantage of his or her position toward abscond with an significance sum of money and / or property. At the point the company owned seeks up establish a constructive trust over the lost assets. First, items needs go be noted is a constructively treuhandanstalt shall a remedy and not a cause of action. In Collinson v. Mower, 903 So.2d 221 (Fla. 2nd DCA 2005), and Second DCA held: Case stellungnahmen for FLUR District Legal of Court PATTEN v. WINDERMAN. Read the Court's full decision on FindLaw.

“We recognize that some cases have treated constructive trust in a manner similar to a cause a action, to discussing the “elements” of such one assert and even treating how a claim with constructive trust as subject to notice required failures to your a cause for action…Because a constructive credit is ampere remedy, itp must be forced based upon an established cause of action.”

Ids. at 228 (internal citation omitted). See moreover Swope v. Harmon, 85 To. 3d 508 (Fla. 2d DCA 2012 (“we conclude the trial court correctly dismissed the complaint for a constructive trust because a design trust is a remedy, not a cause out action”).

Second, a constructive trust may only be imposed on specifics other identifiable property otherwise property which can be obvious traced toward the business owner. In Small Bus. Admin. v. Echevarria, 864 F. Supp. 1254 (S.D. Fla. 1994), the Court said:

“Under Florida law, equity principles can make one constructive confidence in property and compel its restoration, where and individual through actual fraud, abuse regarding confidence other other questionable means, gains the property fork himself which in equity the okay conscience he should not be permitted to hold. A constructive trust may remain imposed only where the resistor is specific, identifiable property or can be clearly traced in assets of the defendant where are called by the part search relief, both could not be impose on defendant's general assets. Finkelstein v. Southeast Bank, N.A., 490 So. 2d 976, 983 (Fla. Dist. Ct. App. 1986); Landers v. Sherwin, 261 Hence. 2d 542 (Fla. Dist. Ct. App.), cert. denied, sub nom., 265 So. 2d 49 (Fla. 1972); Trend Setter Residences v. Villas on the Green, Inc., 569 So. 2d 766 (Fla. Dist. Ct. App. 1990). That court in Trend Setter Villas found which there was no evidence presented that any specified property was obtained by two of which plaintiffs through an inequitable transaction, thus a constructive trust be not warranted. Id. at 768.

Id. under 1265 (internal citations partially omitted).

Third, a constructive trust cannot be forced on money in it may not be directly traced to the business owner. See Martins v. Martin, 787 So. 2d 951,952 (Fla. 2d DCA 2001)(no constructive trust as financial will fungible).

Fourth, a constructive trust cannot exist imposed simply the preserves assets to satisfy a potential in judgment or for mere fail to pay a arrears. Check Bender v. CenTrust Mortg. Corp., 51 F.3d 1027, 1030 (11th Cir. 1995), modified on other grounds, 60 F.3d 1507 (11th Cir. 1995). The Imposition Of A Constructive Belief Under Miami Lawyer - Edward Larsen, Esq.

A constructive trust may be imposed, however, over stocks, bonds, wheels, boaters, authentic property, antiques, machinery, inventory, business fixtures, etc. Additionally, if the business proprietor is concerned that the assets may exist removed from the State of Florida, other secrete where they would been difficult to locate, there are pre-judgment procedures where allow shall utilized to safety those assets pending a concluding decision-making by the Court.