JOSEPH NAZZARO, APPELLANT,
v.
MARY R. DUPONT, MOKSEL F/K/A MARY R. DUPONT, APPELLEE
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PER CURIAM.
The parties entered into a stipulation for dismissal of the foreclosure action which contained a condition that the defendant pay the 1983 ad valorem taxes on the subject property by June 30, 1984. The defendant tendered payment of the taxes on June 29, 1984. For administrative reasons, however, the tax collector refused to accept payment until July 17, 1984, on which date the defendant paid the taxes in full. The plaintiff sought and obtained a final judgment of foreclosure on the basis of this default with regard to the tax payment.
We find that equity requires that a defendant in foreclosure be excused where, as here, the defendant is technically in default due to circumstances beyond his control, the default is cured by the defendant as soon as practicably possible, and the default has not resulted in an impairment of the security. See Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751, 756 (1929); Schechtman v. Grobbel, 226 So. 2d 1 (Fla. 2d DCA 1969); Overholser v. Theroux, 149 So. 2d 582 (Fla. 3d DCA 1963).
Accordingly, the final judgment of foreclosure is reversed.
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Nazzaro v. Moksel, 508 So. 2d 544 (Fla. 3d DCA 1987)…under review upon a holding that the said order was erroneously entered without the lower court’s first complying with this court’s mandate in a prior appeal taken in this cause wherein we reversed a final judgment of foreclosure. Nazzaro v. Moksel, 483 So. 2d 884 (Fla. 3d DCA 1986). As yet, this final judgment has not been set aside and the parties restored to the status quo ante by the trial court in compliance with our mandate; in our view, no further orders — including the order under review— can be enter…
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Abdul Rashid v. Newberry Fed. Sav. & Loan Ass'n, 526 So. 2d 772 (Fla. 3d DCA 1988)…he trial court because it was apparently considered moot. The entry of the order granting the mortgagee’s voluntary dismissal was error because it deprived the successful mortgagor of the benefit and protection of our mandate. See Nazarro v. Moksel, 483 So. 2d 884 (Fla. 3d DCA 1987). Reversed with directions.…
Authorities Cited
- Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004 (Fla. 1929)
- Schechtman v. Gerard L. Grobbel et ux., 226 So. 2d 1 (Fla. 2d DCA 1969)
- Overholser v. Theroux, 149 So. 2d 582 (Fla. 3d DCA 1963)