G. S. ROSE, ET UX.,
v.
E. MIZE
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This case addresses the enforceability of an acceleration clause in a mortgage where the number of days triggering acceleration was left blank in the printed form. The Florida Supreme Court held that when the days specification is omitted, the acceleration clause remains enforceable, allowing the mortgagee to declare the entire debt due immediately upon any default after maturity.
An acceleration clause is enforceable despite the omission of the number of days specification. When the blank is left unfilled, the number-of-days provision must be regarded as eliminated entirely, and the mortgagee may accelerate the debt at any time after maturity of a note without requiring special notice or demand; mere institution of suit is sufficient to exercise the acceleration option.
“the blank left unfilled out in the printed form as to the number of days mentioned, is of peculiar application as a modification of the acceleration clause only when so filled out and that absent the filling in of some specified number of days for a default to endure that the mortgage is capable of acceleration at any time "after maturity" of a note or any part thereof”
The Court's holding that an unfilled blank eliminates only the days-specification provision, leaving the acceleration clause enforceable to allow acceleration at any time after maturity.
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Join FLexlaw to unlock all legal intelligenceRose held a mortgage on property with an acceleration clause in the promissory notes. Three notes were matured and past due when Rose filed the forecl…
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This case involves the foreclosure of a mortgage wherein the complainant below (appellee here) took advantage of an acceleration clause contained in the mortgage and elected to declare the entire amount of indebtedness as represented by promissory notes, three of which were matured and past due as to principal at the time the bill was filed, immediately due and payable and the mortgage forthwith forecloseable therefor.
The foreclosure was contested on the ground that the acceleration clause was ineffective in law in that it provided that “should any one of the above described notes * * * remain due and unpaid for the space of__________days after maturity, then in that event the whole of the balance of the principal and interest thereby secured shall become due and payable at the option of the mortgagee herein.” As will be noted, there is no number of days specified in the blank printed form of mortgage used to evidence the acceleration clause, so the contention on this point (which the Chancellor rejected) is that because the number of days was left blank in the mortgage form, that the mortgage debt was only capable of being accelerated, if at all, upon and after some special notice and demand by the mortgagee following a default, and not by the mere institution of suit as a means of exercising the option to declare the whole debt due, and the mortgage forecloseable as in ordinary cases.
Our view is that the blank left unfilled out in the printed form as to the number of days mentioned, is of peculiar application as a modification of the acceleration clause only when so filled out and that absent the filling in of some specified number of days for a'default to endure that the mortgage is capable of acceleration at any time “after maturity” of a note or any part thereof, since by the omission made in the number of days provision in the printed accel*556eration clause the number of days provision must be regarded as eliminated in its entirety, thereby leaving the remainder of the clause to be enforced absent this provision.
The final decree in this cause appears to have been arrived at upon a proper consideration of the law and facts,, therefore the same should be and is hereby affirmed.
Wt-iitfield, C. J., and Terrell and Buford, J. J., concur.
Brown, J., concurs specially.
(concurring specially). — On the facts of this case, the question discussed is practically a moot question and I concur in the affirmance. However, where the number of days is left blank, I think some notice of the acceleration should be given the mortgagor before filing suit to foreclose for the full amount. At least, the mortgagee should go as far as was indicated in White v. Gracy, 45 Fla. 657, 34 So. 223.
Brown, J.
(concurring specially). — On the facts of this case, the question discussed is practically a moot question and I concur in the affirmance. However, where the number of days is left blank, I think some notice of the acceleration should be given the mortgagor before filing suit to foreclose for the full amount. At least, the mortgagee should go as far as was indicated in White v. Gracy, 45 Fla. 657, 34 So. 223.