LAURA D. DUKE, A/K/A LAURA MANUEL ET AL., APPELLANT,
v.
LELA B. REED, APPELLEE
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The court reversed summary judgment for the plaintiff in a mortgage foreclosure action, finding genuine issues of material fact regarding whether defendants defaulted or properly tendered payment within the grace period, and whether proper notice was given before acceleration.
Summary judgment for plaintiff on mortgage foreclosure is improper when genuine issues of material fact exist regarding whether defendants defaulted or timely tendered payment within the grace period and whether proper notice of acceleration was given.
[1] Summary judgment in mortgage foreclosure is improper when genuine issues of material fact exist regarding whether the mortgagor defaulted, timely tendered payment within…
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Join FLexlaw to unlock all legal intelligencePlaintiff sought to foreclose a mortgage against defendants in a multi-count complaint. The trial court granted summary judgment on the foreclosure co…
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PER CURIAM.
By this interlocutory appeal, we are asked to review a non-final trial court order which: (a) grants summary judgment as to liability only for the plaintiff on a mortgage foreclosure count in a multi-count complaint; and (b) makes various other interlocutory rulings. We have jurisdiction to review the grant of summary judgment to the plaintiff, but have no jurisdiction to review the other rulings made by the court below. Art. V. § 4(b)(1), Fla.Const.; Fla.R. App.P. 9.130(aXS)(C)(iv).
The trial court’s order granting summary judgment on the mortgage foreclosure count in this case is reversed and the cause is remanded for further proceedings as, in our view, the record reveals two genuine issues of material fact as to: (a) whether the defendants were in default of the subject mortgage or had, in fact, properly tendered the overdue mortgage payment herein to the plaintiff at a place which the parties had implicitly agreed upon within the thirty (30) day grace period allowed by the mortgage note; and (b) if not, whether the defendants were given proper notice that the plaintiff intended to exercise her option to declare the entire amount of the subject note due prior to the defendants’ tender of the above overdue mortgage payment. See e. g., Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla.1966); River Holding Co. v. Nickel, 62 So. 2d 702 (Fla.1953). The appeal from the balance of the rulings made by the trial court in the order under review is dismissed for lack of jurisdiction.
Reversed in part; dismissed in part.
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Citator
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Norris v. Paps, 615 So. 2d 735 (Fla. 2d DCA 1993)…ether a severed counterclaim that is still pending in the trial court invokes the rule of Taussig when a final judgment has been signed expressly authorizing a foreclosure sale or collection by execution. See Fla.R.App.P. 9.110(k); cf. Duke v. Reed, 396 So. 2d 1218 (Fla. 3d DCA1981) (summary judgment of foreclosure in multicount complaint is reviewable nonfinal order). II. THE SEVERANCE For a brief time, the legislature attempted to require trial courts to sever counter [*737] claims against mortgagees in fo…
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Delandro v. Am's. Mortg. Servicing, Inc., 674 So. 2d 184 (Fla. 3d DCA 1996)…d the tenders of payment by the borrower in November 1993 and January 1994, or the calculation of late charges, nor did the motion demonstrate why the borrower’s tenders of payment were not sufficient to bring the mortgage current. See Duke v. Reed, 396 So. 2d 1218, 1219 (Fla. 3d DCA 1981) (summary judgment improper where question remains if tender was made prior to acceleration). This court has also said that foreclosure may be refused “where there was intent to make timely payment, and it was attempted, or…
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Jose v. Silva and Alma E. Silva, 616 So. 2d 195 (Fla. 3d DCA 1993)…the court’s directive, we have considered Silva’s affidavit as timely filed. The record demonstrates that Hernandez has failed to rebut Silva’s legally sufficient affirmative defense: genuine issues of material fact remain unresolved. Duke v. Reed, 396 So. 2d 1218 (Fla. 3d DCA 1981). See Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 733 (Fla.1991). Accordingly, the trial court erred in entering summary judgment. We, therefore, reverse the summary judgment and remand for further proceedings. Revers…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- River Holding Co. v. Nickel et ux., 62 So. 2d 702 (Fla. 1952)