STEPHEN SMITH AND TINA SMITH, HIS WIFE, APPELLANTS,
v.
EDWARD LANDY AND SANDRA LANDY, HIS WIFE, APPELLEES
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The court affirmed the trial court's denial of the Smiths' demand for mortgage acceleration and foreclosure, holding that the Smiths were estopped from asserting their right to acceleration without notice because they had acquiesced in the Landys' pattern of late payments.
A mortgagee who has acquiesced in a mortgagor's pattern of late payments is estopped from asserting the right to acceleration and foreclosure without first giving notice of intent to declare default.
[1] A mortgagee's acquiescence in a mortgagor's pattern of late payments, without notice of intent to declare default, may estop the mortgagee from exercising acceleration an…
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Join FLexlaw to unlock all legal intelligenceThe Smiths held a mortgage on property owned by the Landys. The Landys were habitually late in making mortgage payments, and Mr. Smith testified they …
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PER CURIAM.
We affirm the judgment of the trial court which, inter alia, denied the appellants’ demand for acceleration of mortgage amounts due and foreclosure of the Landys’ rights in the mortgaged real property upon a holding that (1) the appellants have failed to demonstrate that the trial court abused its discretion, there being evidence (/. e., Mr. Smith’s own testimony that the Landys were “always” late in making mortgage payments) from which the trial court could have concluded that the Smiths, having acquiesced in this lateness, were es-topped from asserting their right to acceleration and foreclosure without first giving the Landys notice of their intention to declare a default, see Commercial Credit Co., Inc. v. Willis, 126 Fla. 444, 171 So. 304 (1936); Jaudon v. Equitable Life Assurance Society of United States, 102 Fla. 782, 136 So. 517 (1931); Northside Bank of Miami v. LaMelle, 380 So. 2d 1322 (Fla. 3d DCA 1980); Montgomery Enterprises, Inc. v. Atlantic National Bank of Jacksonville, 338 So. 2d 1078 (Fla. 1st DCA 1976); Koschorek v. Fischer, 145 So. 2d 755 (Fla. 2d DCA 1962); (2) this result is unaffected by the failure of the Landys to specifically plead estoppel as an affirmative defense where the issue of estoppel was supported by evidence and tried by the implicit consent of the parties, Fla.R.Civ.P. 1.190(b); cf. Thompson v. Gross, 353 So. 2d 191 (Fla. 3d DCA 1977) (no error in allowing defendants to amend pleadings to conform with the evidence to reflect affirmative defense of estoppel).
Affirmed.
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LA Boutique OF Beauty Acad., Inc. v. Meloy, 436 So. 2d 396 (Fla. 2d DCA 1983)…ould fairly believe that since appellant had not exercised its acceleration rights after prior defaults, it would not do so this time either. Thus, appellant is estopped from now exercising these acceleration rights. Kreiss; Pearson; Smith v. Landy, 402 So. 2d 441 (Fla. 3d DCA 1981); 37 Fla.Jur.2d, Mortgages § 218 (1982). Accordingly, because the mortgagee, by its own conduct, led appellees to believe acceleration would not occur following a late payment and because under the circumstances of this case accel…
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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
- Jaudon v. Equitable Life Assurance Soc'y of the United States, 102 Fla. 782 (Fla. 1931)
- Commercial Credit Co., Inc. v. Willis, 126 Fla. 444 (Fla. 1936)
- Rothstein v. Hoite McKee Agey, 145 So. 2d 755 (Fla. 3d DCA 1962)
- Hi-Acres Groves, Inc. v. Bassett, 338 So. 2d 1078 (Fla. 4th DCA 1976)
- Thompson v. Gross, 353 So. 2d 191 (Fla. 3d DCA 1977)
- Northside Bank OF Miami v. Jules la Melle and Adeline La Melle, 380 So. 2d 1322 (Fla. 3d DCA 1980)