NORTHSIDE BANK OF MIAMI, A FLORIDA BANKING CORPORATION, APPELLANT,
v.
JULES LA MELLE AND ADELINE LA MELLE, HIS WIFE, ETC., ET AL., APPELLEES
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Northside Bank appealed a summary judgment denying foreclosure of a mortgage. The trial court found that the bank had waived or was estopped from enforcing strict payment deadlines and insurance requirements due to its long history of accepting late payments, making enforcement unconscionable.
The court affirmed the summary judgment denying foreclosure, holding that the bank's long course of accepting late payments constituted an affirmative defense of estoppel and unconscionability that barred acceleration and foreclosure.
[1] A mortgagee's election to accelerate the principal sum due on a mortgage may be precluded by the mortgagor's affirmative defenses of estoppel and unconscionability, parti…
[2] Evidence supporting affirmative defenses, such as depositions, may render the mortgagor's failure to serve affidavits twenty days prior to a summary judgment hearing imma…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The affidavits, depositions and record of payment before the trial court completely supported the affirmative defense of uncon-scionability”
Establishes that the evidence supported the mortgagors' unconscionability defense based on the bank's course of dealing.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe mortgagors were allegedly delinquent on monthly installments and had allowed property insurance to lapse. However, affidavits, depositions, and pa…
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PER CURIAM.
The plaintiff-mortgagee appeals a summary final judgment denying foreclosure of its mortgage. In the complaint, the plaintiff elected to accelerate the principal sum due because defendants were allegedly delinquent in making their monthly installment and had allowed the insurance on the property to lapse. The defendant-mortgagors filed an answer containing a general denial and an affirmative defense of estoppel and unconscionability alleging that the bank had a long history of accepting late monthly installments on the mortgage. The affidavits, depositions and record of payment before the trial court completely supported the affirmative defense of uncon-scionability, New England Mutual Life Insurance Company v. Luxury Home Builders, Inc., 311 So. 2d 160 (Fla. 3d DCA 1975); Koschorek v. Fischer, 145 So. 2d 755 (Fla. 2d DCA 1962); Lieberbaum v. Surfcomber Hotel Corp., 122 So. 2d 28 (Fla. 3d DCA 1960), and the affirmative defense of estoppel, Ford Motor Credit Company v. Waters, 273 So. 2d 96 (Fla. 3d DCA 1973).
Here, the failure of the mortgagors’ affidavits to be served twenty days prior to the time fixed for the hearing on their motion for summary judgment, required by Florida Rule of Civil Procedure 1.510(c), was immaterial because the same evidence was already before the court through depositions. See Wood v. Kleaveland, 64 So. 2d 684 (Fla.1953).
Moreover, the mortgagee failed to file any counter-affidavits in opposition to the supporting evidence that the property had been continuously insured so as to avoid the consequences of an adverse summary judgment. Connell v. Sledge, 306 So. 2d 194 (Fla. 1st DCA 1975), cert. dismissed 336 So. 2d 105 (Fla.1976).
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Scarfo v. Peever, 405 So. 2d 1064 (Fla. 5th DCA 1981)…1066] that could have reasonably induced Peever into believing the mortgage would not be accelerated if payment was tendered after the grace period expired, the Jaudon principle does not apply to the present case. Northside Bank of Miami v. LaMelle, 380 So. 2d 1322 (Fla.3d DCA 1980), also cited by Peever, does not apply to the present case. Northside Bank affirmed a summary judgment in favor of the mortgagors where the mortgagors pleaded the affirmative defenses of estoppel and unconscionability, alleging that…
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Smith v. Landy, 402 So. 2d 441 (Fla. 3d DCA 1981)…of their intention to declare a default, see Commercial Credit Co., Inc. v. Willis, 126 Fla. 444, 171 So. 304 (1936); Jaudon v. Equitable Life Assurance Society of United States, 102 Fla. 782, 136 So. 517 (1931); Northside Bank of Miami v. LaMelle, 380 So. 2d 1322 (Fla. 3d DCA 1980); Montgomery Enterprises, Inc. v. Atlantic National Bank of Jacksonville, 338 So. 2d 1078 (Fla. 1st DCA 1976); Koschorek v. Fischer, 145 So. 2d 755 (Fla. 2d DCA 1962); (2) this result is unaffected by the failure of the Landys to s…
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David v. Sun Fed. Sav. & Loan Ass'n, 429 So. 2d 1277 (Fla. 1st DCA 1983)…ence of only one of them, I might concur with the ma [*1279] jority; however the cumulative effect of them all convinces me that foreclosure should not have been ordered. Similar to the facts before the court in Northside Bank of Miami v. La Melle, 380 So. 2d 1322 (Fla. 3d DCA 1980), we find from the record here that the mortgagee had a long history of accepting late monthly payments on the mortgage. Given such circumstances, a court of equity may refuse to foreclose a mortgage. La Melle. Indeed, the loan his…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grady Scott Connell v. Sledge, 306 So. 2d 194 (Fla. 1st DCA 1975)
- Lieberbaum v. Surfcomber Hotel Corp., 122 So. 2d 28 (Fla. 3d DCA 1960)
- NEW England Mut. Life Ins. Co. v. Luxury Home Builders, Inc., 311 So. 2d 160 (Fla. 3d DCA 1975)
- Rothstein v. Hoite McKee Agey, 145 So. 2d 755 (Fla. 3d DCA 1962)
- Salas v. Liberty Mut. Fire Ins. Co., 273 So. 2d 96 (Fla. 3d DCA 1973)
- Wood v. Kleaveland, 64 So. 2d 684 (Fla. 1953)