FIRST HOME FEDERAL SAVINGS AND LOAN ASSOCIATION, SEBRING, FLORIDA, A CORPORATION ORGANIZED AND OPERATING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, APPELLANT,
v.
DWIGHT M. NANCE AND PATRICIA G. GALLAGHER, APPELLEES

Fla. 2d DCA | 1983-03-23
No. 82-1395
BOARDMAN, A.C.J., and RYDER, J., concur.
436 So. 2d 163 Florida District Court of Appeal, Second District (1983) Negative Treatment
Cited by 8 cases

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Synopsis

First Home Federal Savings and Loan Association appealed a summary judgment denying enforcement of a due-on-sale clause in a mortgage. The Florida court reversed, holding that federal regulation preempts state law and permits federal savings and loan associations to enforce due-on-sale clauses without proving impairment of security.


Holding

The court reversed the summary judgment and held that federal regulation issued by the Federal Home Loan Bank Board preempts state law, permitting federal savings and loan associations to enforce due-on-sale clauses without alleging or proving that the property transfer impaired the lender's security. The U.S. Supreme Court's decision in Fidelity Federal Savings & Loan Association v. de la Cuesta established that federal regulation governs due-on-sale practices exclusively.


Headnotes

[1] Federal regulations governing due-on-sale clauses in federal savings and loan associations' mortgage contracts preempt state law.

[2] Due-on-sale clauses in federal savings and loan associations' mortgages are governed exclusively by federal regulations, irrespective of state law limitations.

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Key Quotes

“Lender may, at Lender's option, declare all the sums secured by this Mortgage to be immediately due and payable.”

Language of the due-on-sale clause from the mortgage contract allowing acceleration upon unauthorized transfer.

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Facts & Procedural History

In October 1977, Dwight M. Nance executed a promissory note and mortgage to First Home Federal, which included a due-on-sale clause in paragraph 17 re…

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Opinion of the Court
SCHOONOVER, Judge.

SCHOONOVER, Judge.

The appellant, First Home Federal Savings and Loan Association, has appealed a summary final judgment denying it the right to enforce a due-on-sale clause in a mortgage after the owner of the mortgaged property sold the property without appellant’s approval. The trial court held, consistent with this court’s holding in the case of First Federal Savings & Loan Association v. Lockwood, 385 So. 2d 156 (Fla. 2d DCA 1980), that the appellant could not enforce the due-on-sale clause of the mortgage without alleging and proving that the transfer of the mortgaged property had impaired the lender’s security. We reverse.

On October 20, 1977, Dwight M. Nance executed and delivered to the appellant a promissory note and mortgage. Paragraph 17 of the mortgage provided in part:

17. Transfer of the Property; Assumption. If all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender’s prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to this Mortgage, (b) the creation of a purchase money security interest for household appliances, (c) a transfer by devise, descent or by operation of law upon the death of a joint tenant or (d) the grant of any leasehold interest of three years or less not containing an option to purchase, Lender may, at Lender’s option, declare all the sums secured by this Mortgage to be immediately due and payable.1

On March 5, 1980, Mr. Nance transferred the property by warranty deed to the appel-lee Patricia G. Gallagher. The transfer of said property was effected without the appellant’s prior written consent as required by paragraph 17 of the mortgage. After the appellant learned of the transfer, it accelerated the debt in accordance with the due-on-sale clause and thereafter instituted a foreclosure action against Dwight M. Nance and the appellee. A default was entered against Dwight M. Nance. The appellee answered the amended complaint and filed a counterclaim seeking a declaratory decree determining that she was not in default because of the sale of the property. The appellee then moved for a summary judgment, relying on this court’s decision in Lockwood. Her motion was granted and this appeal followed.

Subsequent to the trial court’s ruling, the United States Supreme Court in Fidelity Federal Savings & Loan Association v. de la Cuesta, -U.S. -, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982), decided the issue presented in the case sub judice. In de la Cuesta, the court held that under section 5(a) of the Homeowner’s Loan Act of 1933 (HOLA), a federal regulation issued in 19762 by the Federal Home Loan Bank Board pre-empted state law, and that due-on-sale practices of federal savings and loan associations are governed exclusively by these regulations without regard to any limitations imposed by state law.

The court’s holding in de la Cuesta is dispositive of the issue presented by this appeal. It effectively overrules this court’s holding in Lockwood that a state court may, applying state equity law, refuse to enforce due-on-sale clauses in federal savings and loan associations’ mortgage contracts.

We accordingly reverse and remand for further proceedings consistent herewith.

BOARDMAN, A.C.J., and RYDER, J., concur. . This due-on-sale clause is similar to paragraph 17 of the Uniform Mortgage Instrument developed by the Federal Home Loan Mortgage Corporation and the Federal National Mortgage Association.

. The regulation, now 12 CFR § 545.8-3(f) (1982), provides in relevant part:

[A federal savings and loan] association continues to have the power to include, as a matter of contract between it and the borrower, a provision in its loan instrument whereby the association may, at its option, declare immediately due and payable sums secured by the association’s security instrument if all or any part of the real property securing the loan is sold or transferred by the borrower without the association’s prior written consent.

Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • First Fed. Sav. & Loan Ass'n of Fort Myers v. FOX, 440 So. 2d 652 (Fla. 2d DCA 1983)
    …mortgagor could circumvent the plain meaning of the mortgage contract. Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). See also First Home Federal Savings & Loan Association v. Nance, 436 So. 2d 163 (Fla. 2d DCA 1983). Accordingly, we hold that an agreement for deed is a transfer of an interest in real estate and by executing such a document in favor of Hoermann, the Foxes violated the terms of paragraph 17 of the [*654] mortgage agreement. Th…
  • First Fed. Sav. & Loan Ass'n OF Winter Haven v. Quigley, 445 So. 2d 1052 (Fla. 2d DCA 1984)
    …nt the enforcement of due-on-sale clauses in federal savings and loan association mortgages. Thus, we recently reversed the refusal to enforce a due-on-sale clause contained in such a mortgage. First Home Federal Savings & Loan Association v. Nance, 436 So. 2d 163 (Fla. 2d DCA 1983). See Washington Savings & Loan Association v. Concepcion del Portillo, 419 So. 2d 805 (Fla. 3d DCA 1982), in which our sister court interpreted the de la Cuesta decision in a similar manner. The summary judgment for Quigley is re…
  • …asing frequency. See Weiman v. McHaffie, 448 [*432] So. 2d 1127 (Fla. 1st DCA 1984); First Federal Savings and Loan Association of Winter Haven v. Quigley, 445 So. 2d 1052 (Fla. 2d DCA 1984); First Home Federal Savings and Loan Association v. Nance, 436 So. 2d 163 (Fla. 2d DCA 1983); Orange Federal Savings and Loan Association v. Dykes, 433 So. 2d 642 (Fla. 5th DCA 1983); First Federal Savings and Loan Association of Englewood v. Lockwood, 385 So. 2d 156 (Fla. 2d DCA 1980). Recently enacted federal regulation…

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