WALKER FLORANCE, AS SURVIVING TRUSTEE UNDER THE WILL OF LIND LAWRENCE, DECEASED, ROBERT C. JOHNSON, AS SURVIVING CO-TRUSTEE UNDER THE WILL OF LIND LAWRENCE, DECEASED, AND JOAN ETZ AND MARION R. DAVIS, AS SURVIVING HEIRS-AT-LAW OF J. J. REDMOND, DECEASED, APPELLANTS,
v.
MARY JOHNSON, FORMERLY KNOWN AS MARY JOHNSON MITCHELL, APPELLEE
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In this mortgage foreclosure appeal, the court addressed whether a trial judge properly disallowed interest for certain periods and redirected partial payments to principal rather than interest. The court held that the trial judge impermissibly rewrote the mortgage contract and reversed the disallowance of interest and the improper application of payments.
The trial court impermissibly rewrote the contract by disallowing interest for the periods in question and by applying payments to principal contrary to the mortgage terms. Interest must be allowed for the entire period the debt remained unpaid, partial payments must be applied according to the note and mortgage terms, and attorney's fees must be recomputed accordingly.
[1] A claim of laches requires a showing of detriment or disadvantage to the defendant occasioned by the delay in enforcing rights.
[2] A trial court may not rewrite the terms of a contract between parties.
Previewing 2 of 5 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“Any delay in enforcing the mortgagee's rights acted only to her benefit in permitting her to remain in her home; plainly, there was no showing of a detriment or disadvantage to the defendant occasioned by that delay, which is indispensible to a finding of laches.”
Court's rejection of the laches defense; establishes that delay benefiting the defendant and causing no detriment precludes a laches finding.
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Join FLexlaw to unlock all legal intelligenceMary Johnson executed a mortgage on her home on April 29, 1963. The mortgagees did not make a written demand for payment until May 16, 1973, and did n…
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SCHWARTZ, Judge.
The final judgment in this case foreclosed a mortgage which secured her home and which had been executed by Mary Johnson on April 29,1963. The judgment disallowed interest on the note and mortgage from that date until a written and specific demand for payment was made on May 16, 1973, and between the time Ms. Johnson was served with the complaint on April 23, 1976 and the date of the final judgment. In addition, the court applied $1,500.00 in sporadic partial payments which had been made to the reduction of principal rather than to accrued interest, as the note and mortgage provided. Both sides appeal.
As did the trial judge, we reject Ms. Johnson’s contention that the action is barred by laches. Any delay in enforcing the mortgagee’s rights acted only to her benefit in permitting her to remain in her home; plainly, there was no showing of a detriment or disadvantage to the defendant occasioned by that delay, which is indispensible to a finding of laches. Marshall v. C. S. Young Construction Co., 94 Fla. 11, 113 So. 565 (1927). Furthermore, the trial judge’s rejection of the affirmative defense of payment was fully supported by the evidence. We conclude, therefore, that Ms. Johnson’s cross-appeal lacks merit.
Despite the lower court’s obviously well-intentioned efforts to achieve a sort of rough justice, there thus remains no legal basis for the judgment’s disallowance of interest for the two periods to which we have referred, see Tech Corp. v. Permutit Co., 321 So. 2d 562 (Fla. 4th DCA 1975), nor for its application of payments to principal despite the contrary provisions of the agreement. Both of these aspects of the judgment represent no more than an impermissible attempt to rewrite the contract of the parties. E. g., Florida East Coast R. Co. v. Atlantic Coast Line R. Co., 193 So. 2d 666, 668 (Fla. 1st DCA 1966), cert. denied, 201 So. 2d 557 (Fla.1967). Consequently, to this extent, the judgment must be reversed and the cause remanded with directions to redetermine the amount of the judgment, allowing interest for the entire period during which the debt remained unpaid and applying the $1,500.00 in accordance with the terms of the note and mortgage. Moreover, since the agreement provides for attorney’s fees to be fixed at 15% of the total sum due, the amount of fees must also be recomputed on the basis of that now-increased amount.
Affirmed in part, reversed in part, and remanded.
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Brown v. Elizabeth Hanger & the Fla. Nat'l Bank & Tr. Co. at Miami, 368 So. 2d 63 (Fla. 3d DCA 1979)…roperty. Moreover, Ms. Hanger gained nothing but benefit, in the form of interest payments from the inter vivos trust, from the delay assertedly involved here, rather than the detriment also required to sustain a laches defense. Florance v. Johnson, 366 So. 2d 527 (Fla.3d DCA 1979). (c) The trial court also found that Ms. Hanger did not herself know that a source of Dr. Brown’s largesse was property which both he and his wife owned. Since the defendant did not take the property as a bona fide purchaser for va…
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Gevertz v. Gevertz, 566 So. 2d 541 (Fla. 3d DCA 1990)…ghts acted only to Sandra’s benefit “in permitting her to remain in her home; plainly, there was no showing of a detriment or disadvantage to the defendant occasioned by the delay, which is indispensable to a finding of laches.” Florance v. Johnson, 366 So. 2d 527, 528 (Fla. 3d DCA 1979). Sandra’s claim that Anna was estopped from asserting her rights under the note and mortgage by reason of her delay in [*544] recording the mortgage is without foundation. Florida law does not require that a mortgage be recor…
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Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Marshall v. C. S. Young Constr. Co., 94 Fla. 11 (Fla. 1927)
- Tech Corp. v. The Permutit Co., 321 So. 2d 562 (Fla. 4th DCA 1975)
- Fla. E. Coast Ry. Co. v. Atl. Coast Line R.R. Co., 193 So. 2d 666 (Fla. 1st DCA 1966)
- Fawcett Publ'ns, Inc. v. Brown, 201 So. 2d 557 (Fla. 1967)
- Collier v. State, 201 So. 2d 557 (Fla. 1967)