SEYMOUR BENSMAN AND MICHAEL ROSEN, APPELLANTS,
v.
LOUIS DE LUCA AND DOMENICA DE LUCA, HIS WIFE, APPELLEES
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Appellants appealed a summary judgment foreclosing on their mortgage based on alleged defaults. The court reversed, finding that a late payment was timely tendered before acceleration notice, a late tax payment was merely technical and did not warrant foreclosure, and the property was adequately insured despite failure to provide proof of the insurance policy to the lender.
The court held that appellants' late payment was timely tendered before any acceleration notice and therefore defeated the right to accelerate; the late tax payment was a merely technical breach that did not impair the lender's security and did not warrant foreclosure; the property was adequately insured with no gap in coverage; and while the failure to provide the insurance policy was a breach, it was technical and did not warrant foreclosure, but appellees were entitled to reimbursement for any unreimbursed insurance premiums they incurred as a result.
[1] A tender of payment made prior to notice of acceleration or foreclosure defeats the lender's right to accelerate the mortgage.
[2] Payment by check is considered tendered when postmarked, absent specific contractual provisions regarding the method of delivery or mode of payment.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is true that the payment of September 5, 1985, was late as contended; however, there was evidence that it was tendered prior to any notice of acceleration or foreclosure, albeit appellees filed their foreclosure action on September 6, 1985.”
Establishes that the late payment was timely tendered before acceleration, defeating the lender's foreclosure rights.
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Join FLexlaw to unlock all legal intelligenceAppellants Bensman and Rosen were mortgagors who made a payment on September 5, 1985, one day after the thirty-day grace period expired. They paid 198…
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GLICKSTEIN, Judge.
This is an appeal from a summary final judgment of foreclosure. We reverse and remand with direction to award appellees any unreimbursed insurance premium even should appellants prevail.
Appellees contend that foreclosure was proper because (a) appellants’ payment on September 5, 1985, was one day after the thirty day grace period had expired; (b) appellants did not pay 1984 real estate taxes until April 2,1985; (c) appellants did not keep the mortgaged premises insured; and (d) appellants failed to provide appellee with a copy of an insurance policy.
It is true that the payment of September 5, 1985, was late as contended; however, there was evidence that it was tendered prior to any notice of acceleration or foreclosure, albeit appellees filed their foreclosure action on September 6, 1985. We say “tendered” because while the mortgage here provided for a place of payment, it did not specify the method of delivery or mode of payment. It is also evident from the course of conduct of the parties and from appellees’ affidavit that payment by check was considered tendered when postmarked. There being evidence of a tender prior to acceleration and the law being clear that such defeats the right to accelerate, summary judgment was error on this point. River Holding Co. v. Nickel, 62 So. 2d 702 (Fla.1952); Clay v. Girdner, 103 Fla. 135, 138 So. 490 (1931); Parise v. Citizens National Bank, 438 So. 2d 1020 (Fla. 5th DCA 1983).
The payment of taxes on April 2nd, rather than March 15th as required by the mortgage was a technical breach that did not impair appellees’ security. That type of breach would not warrant foreclosure. La Boutique of Beauty Academy, Inc. v. Meloy, 436 So. 2d 396, 398 (Fla. 2d DCA 1983); Brady v. Edgar, 415 So. 2d 141 (Fla. 5th DCA 1982). Further, the taxes were paid well before appellee attempted to foreclose. River Holding.
Appellees contend that the property was not insured, but appellants’ affidavit contradicts that assertion. Further, the record shows a policy dated September 15, 1985, with an effective date indicating no gap from the expiration date of the previous policy.
Finally, appellees contend — correctly — that the record reflects the failure of appellants to provide appellees with a copy of the insurance policy upon the premises prior to commencement of the foreclosure action. At oral argument, appellants’ counsel advised the court that appellees, in the event of reversal, are entitled to reimbursement for any unreimbursed insurance premium incurred by appellees because of the nondelivery of the policy which occasioned purchase of another policy. The nondelivery would not warrant foreclosure because any such breach would be merely technical, as discussed above.
HERSEY, C.J., and DOWNEY, J., concur.
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White v. T.H. Brousseau, 566 So. 2d 832 (Fla. 5th DCA 1990)….See § 697.01(1), Fla.Stat. . Adkinson v. Nyberg, 344 So. 2d 614 (Fla. 2d DCA 1977). . See e.g., River Holding Company v. Nickel, 62 So. 2d 702 (Fla.1952); Parise v. Citizens National Bank, 438 So. 2d 1020 (Fla. 5th DCA 1983); Bensman v. Deluca, 498 So. 2d 645 (Fla. 4th DCA 1986); Yelen v. Bankers Trust Company, 476 So. 2d 767 (Fla. 3d DCA 1985); Ernest v. Carter, 368 So. 2d 428 (Fla. 2d DCA 1979).…
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Pici v. First Union Nat'l Bank of Fla., 621 So. 2d 732 (Fla. 2d DCA 1993)…d tendered payment equitable considerations prevented enforcement of First Union’s undisclosed decision to accelerate. See River Holding v. Nickel, 62 So. 2d 702 (Fla.1952); Lunn Woods v. Lowery, 577 So. 2d 705 (Fla. 2d DCA 1991); Bensman v. DeLuca, 498 So. 2d 645 (Fla. 4th DCA 1986); LaBoutique of Beauty Academy, Inc. v. Meloy, 436 So. 2d 396 (Fla. 2d DCA 1983). Pici’s account was current when First Union filed suit, and the trial court should have dissolved the prejudgment writ of replevin. Reversed and re…
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Procacci v. Procacci, 729 So. 2d 522 (Fla. 4th DCA 1999)…(Fla. 5th DCA 1995) (citing Campbell v. Werner, 232 So. 2d 252, 256 (Fla. 3d DCA 1970) (mailing arrearages after default, but prior to notice of election to accelerate prevents the payee from exercising his right to accelerate)); Bensman v. DeLuca, 498 So. 2d 645 (Fla. 4th DCA 1986) (parties’ course of conduct shows that payment by check was considered tendered when postmarked); Brake v. State, Unemployment Appeals Comm’n, 473 So. 2d 774 (Fla. 3d DCA 1985) (“a letter properly addressed, stamped and mailed is…
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
- River Holding Co. v. Nickel et ux., 62 So. 2d 702 (Fla. 1952)
- Clay v. Girdner, 103 Fla. 135 (Fla. 1931)
- LA Boutique OF Beauty Acad., Inc. v. Meloy, 436 So. 2d 396 (Fla. 2d DCA 1983)
- Parise v. Citizens Nat'l Bank & Arthur H. Garrecht, 438 So. 2d 1020 (Fla. 5th DCA 1983)
- Brady v. Edgar, 415 So. 2d 141 (Fla. 5th DCA 1982)