ASA M. ERNEST AND ANITA B. ERNEST, APPELLANTS,
v.
JAMES M. CARTER, VICKIE B. CARTER, AND GENERAL ELECTRIC CREDIT CORPORATION, APPELLEES
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Plaintiffs sought to foreclose an agreement for deed when defendants defaulted on installment payments. The trial court erroneously dismissed the plaintiffs' case at the close of their evidence despite them presenting a prima facie case of entitlement to foreclose. The court reversed and remanded for further proceedings.
The plaintiffs presented a prima facie case establishing the agreement, defendant's default, proper acceleration of the debt, and the amount due. Therefore, dismissal of their amended complaint was error, and the case must be reversed and remanded for further proceedings.
[1] A dismissal of a complaint at the close of the plaintiff's case is error if the plaintiff has established a prima facie case.
[2] An agreement for deed is legally equivalent to a mortgage and its foreclosure is governed by mortgage foreclosure rules.
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Join FLexlaw to unlock all legal intelligence“Such an agreement is in essence a mortgage, and the foreclosure thereof is governed by the rules applicable to mortgage foreclosures.”
Establishes the legal characterization of an agreement for deed and the applicable law governing its foreclosure
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Join FLexlaw to unlock all legal intelligenceThe plaintiffs and defendants entered into an agreement for deed for the purchase of real property on an installment basis with monthly payments of pr…
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SCHEB, Judge.
Plaintiffs brought suit to enforce their rights and to foreclose those of defendants under an agreement for deed. At the close of the plaintiffs’ case the trial court entered an order of dismissal, but required the defendants to pay all past due installments within forty-eight hours. The trial court also denied plaintiffs’ request for attorneys’ fees and ordered each side to bear their own costs. On this appeal by plaintiffs we hold they presented a prima facie case and that dismissal of their amended complaint was therefore error. We reverse.
Plaintiffs and defendants entered into an agreement for deed whereby the defendants agreed to purchase certain real property on an installment basis with monthly payments of principal, interest, taxes and insurance. The agreement provided for an acceleration of the debt at the option of the plaintiffs in the event of a default in payments, and made the defendants liable for all costs of collection, including reasonable attorneys’ fees. Such an agreement is in essence a mortgage, and the foreclosure thereof is governed by the rules applicable to mortgage foreclosures. Adkinson v. Nyberg, 344 So. 2d 614 (Fla. 2d DCA 1977).
To establish their entitlement to foreclose it was incumbent upon the plaintiffs to prove their agreement, a default by the defendants, that plaintiffs properly accelerated the debt to maturity, and the amount due. The evidence must be considered in the light most favorable to the nonmoving party, Glass v. Long, 341 So. 2d 1066 (Fla. 2d DCA 1977), and if a prima facie case has been established, dismissal is improper. Tillman v. Baskin, 260 So. 2d 509 (Fla.1972). We have reviewed the evidence and, considered in the light most favorable to the plaintiffs, it was sufficient to establish a prima facie case as to all of the aforementioned elements. It was therefore error to dismiss plaintiffs’ amended complaint.
We deem it unnecessary at this time to address the issue of attorneys’ fees incurred by plaintiffs at the trial level. That issue is premature until the trial court has heard all the evidence, including testimony as to the reasonable amount of attorneys’ fees, and has made its decision on the merits of the controversy.
Reversed and remanded for further proceedings consistent with this opinion.
BOARDMAN, A. C. J., and DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Terrence and Tiwanna Kelsey v. Suntrust Mortg., Inc., 131 So. 3d 825 (Fla. 3d DCA 2014)…nd mortgage into evidence. To establish its entitlement to foreclosure, SunTrust needed to introduce the subject note and mortgage, an acceleration letter, and some evidence regarding the Kelseys’ outstanding debt on the note. See Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d DCA 1979) (holding that foreclosure plaintiffs must show: (1) an agreement, (2) a default, (3) an acceleration of debt to maturity, and (4) the amount due). Without the proper foundation, the documents Gergeceff relied upon to establis…
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Liberty Home Equity Solutions, Inc. v. Raulston, 206 So. 3d 58 (Fla. 4th DCA 2016)…ing party. Id. at 563-64. To establish a prima facie case, a foreclosure plaintiff must prove: (1) an agreement between the parties; (2) a default by the defendant; (3) acceleration of the debt to maturity; and (4) the amount due. Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d DCA 1979). In other words, the plaintiff must introduce the subject note and mortgage, an acceleration letter, and some evidence regarding the outstanding debt. Kelsey v. SunTrust Mortg., Inc., 131 So. 3d 825, 826 (Fla. 3d DCA 2014). W…
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Bowmar v. Suntrust Mortg., Inc., 188 So. 3d 986 (Fla. 5th DCA 2016)…e admission into evidence of “the subject note and mortgage, an acceleration letter, and some evidence regarding the ... outstanding debt on the note.” Kelsey v. SunTrust Mortg., Inc., 131 So. 3d 825, 826 (Fla. 3d DCA 2014) (citing Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d DCA 1979)). Denson’s discussion of these documents without their admission into evidence’ was .. insufficient to establish MTGLQ’s entitlement to foreclosure.1 See 66 Team, LLC v. JPMorgan Chase Bank Nat’l Ass’n, 187 So. 3d 929 n. 2 (F…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Easter Mae Tillman v. Baskin, 260 So. 2d 509 (Fla. 1972)
- Leon F. Adkinson and wife Eveline D. Adkinson v. Anne Nyberg, 344 So. 2d 614 (Fla. 2d DCA 1977)
- Glass v. Eugenia B. (Glass) Long, 341 So. 2d 1066 (Fla. 2d DCA 1977)