CECELIA T. QUAIN, APPELLANT,
v.
FINANCEAMERICA INDUSTRIAL PLAN, INC., APPELLEE
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A mortgagor appealed a foreclosure judgment after failing to tender the full amount due, including attorney fees, when given the opportunity to cure the default. The court affirmed the foreclosure, holding that the mortgagee was entitled to recover attorney fees incurred in collection efforts under the mortgage note.
The trial court did not err in finding that it was reasonable and necessary to engage counsel to collect the monies due, and that the mortgagor was liable for the attorney fees and costs incurred, which were properly recoverable in the foreclosure judgment.
[1] A mortgagor is liable for attorney's fees and costs incurred by the mortgagee in collection efforts when such fees and costs are provided for in the mortgage note.
[2] A tender of payment is insufficient if it does not include attorney's fees and costs that have already been incurred and for which the mortgagor is liable.
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Join FLexlaw to unlock all legal intelligence“It was reasonable and necessary to engage Mr. Falk to collect the monies due under the mortgage, that the tender on May 7 was incorrect in that it did not include attorney's fees and costs which had been incurred at the time for which Mrs. Quain was liable under the note.”
Trial court's finding that justified recovery of attorney fees in foreclosure judgment
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMortgagor Quain had funds available and wanted to satisfy her mortgage debt but her counsel was unsatisfied with documentation provided by the mortgag…
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PER CURIAM.
This is an appeal from a final judgment of foreclosure, which judgment found $11,-730.09 to be due for principal plus $6,500.00 for attorney fees and costs.
It is an unfortunate case in the sense that at all times the mortgagor had the funds to satisfy and wanted to satisfy. However, her counsel after a great deal of communication back and forth was never satisfied with the documentation provided by the mortgagee, one item of which was at all times in her counsel’s file. The mortgage went into default and the mortgagee retained counsel to foreclose and paid him a nonrefundable fee of $250.00. At this juncture, mortgagor’s counsel apparently decided to forego his demands and went to the mortgagee’s office and tendered unconditionally the amount of principal and interest due in cash. However, the mortgagee demanded an additional payment of $250.00 to cover its attorney fees on account of the collection efforts. Mortgagor’s counsel refused to pay the $250.00 and, in the language of mortgagor’s appellate counsel at oral argument, “decided to play russian roulette.” It was an expensive game because it resulted in the mortgagor having to pay a substantially large sum of penalty interest plus attorney fees and costs of $6,500.00 instead of the earlier demanded sum of $250.00.
The trial court specifically found:
It was reasonable and necessary to engage Mr. Falk to collect the monies due under the mortgage, that the tender on May 7 was incorrect in that it did not include attorney’s fees and costs which had been incurred at the time for which Mrs. Quain was liable under the note.
After full consideration, we are unable to say that the trial court erred or abused its discretion.
Affirmed.
ANSTEAD, DELL and WALDEN, JJ., concur.