BOOKER T. RICE AND ELIZABETH RICE, HIS WIFE, APPELLANTS,
v.
MICHAEL CAMPISI, FRANK GLIOZZO, AND JOSEPH CAMPAGNO, APPELLEES
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The Rices appealed a judgment denying foreclosure on a mortgage after the appellees' payment check was returned by the postal service due to a delivery error, preventing timely payment. The court affirmed the denial of foreclosure based on equitable principles, but reversed the denial of costs and fees to the prevailing defendants.
The court affirmed the denial of foreclosure, finding that equitable principles preclude acceleration when a payment's tardiness results from circumstances beyond the mortgagor's control and knowledge. However, the court reversed the denial of costs and fees, holding that absent evidence the foreclosure action was not prosecuted in good faith, the mortgagees are entitled to contractual costs and fees.
[1] A court may deny acceleration of a mortgage based on equitable considerations when a payment default is beyond the mortgagor's control and knowledge.
[2] A mortgagor should not bear the penalty of acceleration when a payment default is beyond their control and knowledge.
Previewing 2 of 4 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“If the payment in the present case was late, its tardiness was beyond the control and knowledge of the appellees; they should not, therefore, be made to bear the penalty of acceleration.”
Establishes the court's equitable principle that mortgagors cannot be penalized for payment tardiness caused by circumstances beyond their control.
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Join FLexlaw to unlock all legal intelligenceThe appellees made mortgage payments due on the first of each month with a fifteen-day grace period successfully and timely by mail for twenty consecu…
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JORGENSON, Judge.
The Rices, the plaintiffs in a mortgage foreclosure action, appeal an adverse final judgment. Given the extraordinary circumstances of this ease we find that the trial court did not err in denying acceleration and, therefore, affirm. We reverse, however, the trial court’s denial of costs and fees.
Campisi, Gliozzo and Campagno, the appellees, made their mortgage payments, which were due on the first day of each month tempered by a fifteen-day grace period, successfully and timely by mail to the same address for twenty consecutive months. On the twenty-first month, however, at the end of the month, the payment check was returned by the postal service to the appellees, the envelope bearing the same address as the twenty previous envelopes but with an indication that it had been delivered to the wrong address. The appellees tried, unsuccessfully, to contact the Rices by telephone and soon thereafter received notice of the instant foreclosure proceeding. A subsequent mailing of the payment check by certified mail to the same address was successful, but the check was returned by the Rices’ lawyer. Our affirmance of the trial court’s refusal to foreclose is not based upon the narrow doctrine of estoppel (sometimes referred to as implied waiver) relied upon in Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751 (1929), and subsequent cases, see, e.g., Koschorek v. Fischer, 145 So. 2d 755 (Fla. 2d DCA 1962).
This is not a case, for instance, where the mortgagor reasonably inferred from the mortgagee’s passive acquiescence to previous late payments that an additional late payment would not result in acceleration, therefore empowering the court, because of the mortgagor’s reliance, to estop the mortgagee from foreclosing. The Rices had done nothing in the past to inculcate in the appellees’ minds a belief that they could be tardy with impunity. Indeed, there is no indication that the appellees were tardy.
Our affirmance flows from the broader equitable considerations recognized in River Holding Co. v. Nickel, 62 So. 2d 702 (Fla.1952), Lieberbaum v. Surfcomber Hotel Corp., 122 So. 2d 28 (Fla. 3d DCA 1960), Overholser v. Theroux, 149 So. 2d 582 (Fla. 3d DCA 1963), and La Boutique of Beauty Academy, Inc. v. Meloy, 436 So. 2d 396 (Fla. 2d DCA 1983). If the payment in the present case was late, its tardiness was beyond the control and knowledge of the appellees; they should not, therefore, be made to bear the penalty of acceleration. In so holding we do not recede from the sound public policy contained in Campbell v. Werner, 232 So. 2d 252 (Fla. 3d DCA 1970), we merely distinguish this case upon its extraordinary facts and the equitable principles espoused in the cited cases.
There has been no showing, however, that the Rices’ foreclosure action, though unsuccessful by application of equitable principles, was not prosecuted upon a good faith belief that the appellees were responsible for the default. We therefore reverse the denial of contractual costs and fees and remand for an award of costs and fees reasonable in light of the ultimate resolution of this case. See Schechtman v. Grobbel, 226 So. 2d 1 (Fla. 2d DCA 1969).
Affirmed in part, reversed in part and remanded.
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MAW v. Abinales, 463 So. 2d 1245 (Fla. 2d DCA 1985)…ining a reasonable award of attorney's fees to appellant, may consider the facts did not warrant foreclosure, that she instituted the action without feeling the security interest was in the least impaired, etc. Schechtman, id. at 5; Rice v. Campisi, 446 So. 2d 1120, 1121 (Fla. 3d DCA 1984). While these facts do not bar appellant’s recovery of costs and attorney’s fees, the lower court may consider them relevant in determining the amount of such award or the items of costs allowable. We affirm the lower court’…
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Savarese v. Schoner, 464 So. 2d 695 (Fla. 2d DCA 1985)…pon the granting of foreclosure or upon foreclosure being proper.” 226 So. 2d at 3. That language seems to indicate that where foreclosure is the sole remedy sought and it is denied, attorney’s fees would not be proper. The court in Rice v. Campisi, 446 So. 2d 1120 (Fla. 3d DCA 1984), approved an award of attorney’s fees to the mortgagee where foreclosure was denied because there was no showing that the foreclosure “was not prosecuted upon a good faith belief” that the mortgagor was responsible for the default…
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Jobert-Kendall, Inc. v. Kendall Commercial Assocs., 491 So. 2d 1301 (Fla. 3d DCA 1986)…ace period,” which the trial court properly found precluded acceleration and foreclosure, likewise barred the recovery of attorney’s fees and costs, Federal Home Loan Mortgage Corp. v. Taylor, 318 So. 2d 203 (Fla. 1st DCA 1975); cf. Rice v. Campisi, 446 So. 2d 1120 (Fla. 3d DCA 1984), pet. for review denied, 456 So. 2d 1182 (Fla.1984) (mortgagee who did not contribute to default properly awarded fees and costs even though foreclosure was denied because late payment was caused by post office), and (b) the appel…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004 (Fla. 1929)
- Campbell v. Werner, 232 So. 2d 252 (Fla. 3d DCA 1970)
- The City OF Pensacola v. Blanchard, 232 So. 2d 252 (Fla. 1st DCA 1970)
- Lieberbaum v. Surfcomber Hotel Corp., 122 So. 2d 28 (Fla. 3d DCA 1960)
- River Holding Co. v. Nickel et ux., 62 So. 2d 702 (Fla. 1952)
- Schechtman v. Gerard L. Grobbel et ux., 226 So. 2d 1 (Fla. 2d DCA 1969)
- Rothstein v. Hoite McKee Agey, 145 So. 2d 755 (Fla. 3d DCA 1962)
- Overholser v. Theroux, 149 So. 2d 582 (Fla. 3d DCA 1963)
- LA Boutique OF Beauty Acad., Inc. v. Meloy, 436 So. 2d 396 (Fla. 2d DCA 1983)