CECIL E. LOCKE AND HIS WIFE, MILDRED M. LOCKE, APPELLANTS,
v.
STATE FARM FIRE AND CASUALTY COMPANY, APPELLEE

Fla. 1st DCA | 1987-07-23
No. BO-255
SHIVERS and THOMPSON, JJ., concur.
509 So. 2d 1375 Florida District Court of Appeal, First District (1987) Positive Treatment
Cited by 17 cases

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Synopsis

This is an appeal from a summary judgment in favor of State Farm in a mortgage foreclosure action. The court reversed the summary judgment because the motion failed to meet procedural requirements and genuine issues of material fact remained, but affirmed the denial of the motion to dismiss based on the statute of limitations.


Holding

The statute of limitations did not bar the action because the mortgage's optional acceleration clause means the limitations period does not begin until acceleration occurs, which here was upon filing of the complaint. The summary judgment was properly reversed because the motion failed to state with particularity the grounds and substantial matters to be argued as required by Florida Rule of Civil Procedure 1.510.


Headnotes

[1] A motion for summary judgment must state with particularity the grounds upon which it is based and the substantial matters of law to be argued.

[2] A statute of limitations on a mortgage foreclosure action does not begin to run until the last payment is due unless the mortgage contains an acceleration clause.

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Key Quotes

“the statute of limitations on a mortgage foreclosure action does not begin to run until the last payment is due unless the mortgage contains an acceleration clause.”

Establishes the rule that without acceleration, limitations runs from final payment date, not from first default

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Facts & Procedural History

Appellants defaulted on a mortgage note beginning October 28, 1980. The mortgage contained an optional acceleration clause with the last scheduled pay…

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Opinion of the Court
NIMMONS, Judge.

NIMMONS, Judge.

This is an appeal from a summary judgment in favor of the appellee/mortgagee in a foreclosure suit. The appellants/mortgagors also appeal an earlier order denying their motion to dismiss.1 Finding that genuine issues of material fact remain, we reverse the summary judgment, but affirm the denial of the motion to dismiss.

Appellee’s foreclosure complaint alleged that appellants defaulted on the note and mortgage by failing to pay the same according to the terms thereof, that appellants owe principal and interest from October 28, 1980, and that “plaintiff declares the full amount payable.” The complaint was filed January 10, 1986.

Appellants filed a motion to dismiss based on the running of the statute of limitations. The motion was denied. Appellants then filed an answer generally denying most of the allegations and pleading the following affirmative defenses: 1) estoppel; 2) laches; 3) res judicata; 4) statute of limitations; and 5) waiver. Appellee filed no responsive pleading. Appellee filed a motion for summary judgment, an affidavit in proof of amount due, and an affidavit as to attorney’s fees. The motion was granted after hearing. This appeal followed.

Appellee has filed herein a “Confession of Error” in which appellee admits error “in that certain procedural requirements including the awarding of attorney’s fees were in error.” From the briefs and record herein, it is apparent that such errors include an error in the judgment’s legal description of the property, a variance between the amount due according to the plaintiff’s affidavits and the amount provided in the judgment, and error in the procedure followed in the awarding of plaintiff’s attorney’s fees.

In addition to the above errors admitted by appellee, we reverse the order granting summary judgment because we agree with appellants that the motion for summary judgment did not meet the minimum requirements of Fla.R.Civ.P. 1.510, which provides in pertinent part:

(c) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least twenty days before the time fixed for the hearing. * * * The appellee’s motion stated only in general terms that no material issues of fact or law existed and that appellee was entitled to the relief requested. Such a motion is insufficient to place the nonmoving party on notice of the issues of fact or law which will be argued at the hearing. See Finn v. Lee County, 479 So. 2d 246 (Fla. 2d DCA 1985); Epperson v. Dixie Ins. Co., 461 So. 2d 172 (Fla. 1st DCA 1984); City of Brooksville v. Hernando County, 424 So. 2d 846 (Fla. 5th DCA 1983). By appropriate objection, appellants preserved their right to complain on appeal of the motion’s deficiency.

Appellants also appeal the denial of their motion to dismiss, arguing that the statute of limitations had run on the instant action. They argue that since five years had run from the time of default to the filing of the action, Section 95.11(2)(c), Florida Statutes, prohibits the current action. It has been held that the statute of limitations on a mortgage foreclosure action does not begin to run until the last payment is due unless the mortgage contains an acceleration clause. Conner v. Coggins, 349 So. 2d 780 (Fla. 1st DCA 1977). In the instant case, the mortgage, which provides for installment payments with the last payment due in May, 2008, contains an optional acceleration clause. In such a case no acceleration occurs until the holder of the mortgage exercises his right to accelerate. See Cook v. Merrifield, 335 So. 2d 297 (Fla. 1st DCA 1976). In the instant ease, the appellee did not exercise its right to accelerate until the filing of its complaint. Therefore, the motion to dismiss was properly denied.

In view of appellee’s admissions of error and our holdings herein, we need not discuss appellants’ other points. The summary judgment is REVERSED and this cause is REMANDED for further proceedings consistent herewith.

SHIVERS and THOMPSON, JJ., concur. . Such order denying appellants’ motion to dismiss was, of course, interlocutory. No issue has been raised regarding that order's appealability as part of the appeal from the trial court's subsequent final order granting summary judgment. See generally, 3 Fla.Jur.2d Appellate Review, Section 307.


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Citator

Cited By (16 total)

  • Deutsche Bank Tr. Co. Americas v. Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016)
    …tively to overrule cases that Singleton does not mention, much less disrupt. Examples abpund. B. What Singleton Does Not Do Singleton does not overrule Conner v. Coggins, 349 So. 2d 780 (Fla. 1st DCA 1977), Locke v. State Farm Fire & Casualty Co., 509 So. 2d 1375 (Fla. 1st DCA 1987), or Monte v. Tipton, 612 So. 2d 714 (Fla. 2d DCA 1993). Singleton does not stand for the proposition that a lender’s acceleration is irrelevant to the calculation of the statute of limitations. Singleton does not overrule Erwin…
    1 / 2
  • Ginnifer GEE v. U.S. Bank Nat'l Ass'n, 72 So. 3d 211 (Fla. 5th DCA 2011)
    …the grounds upon which its summary judgment motion was based, U.S. Bank failed to provide Ms. Gee with proper notice of the separate issues to be resolved and why U.S. Bank was entitled to summary judgment.4 See Locke v. State Farm Fire & Cas. Co., 509 So. 2d 1375, 1376-77 (Fla. 1st DCA 1987) (holding that summary judgment motion was insufficient to place non-moving party on notice of issues to be argued at hearing as motion merely stated that no material issues existed and movant was entitled to judgment); s…
  • U.S. Bank Nat'l Ass'n v. Bartram, 140 So. 3d 1007 (Fla. 5th DCA 2014)
    …nt is due unless the mortgage contains an acceleration clause.”; holding that because cause of action did not accrue until the acceleration clause was triggered, the statute of limitations did not bar the suit); Locke v. State Farm, Fire & Cas. Co., 509 So. 2d 1375 (Fla. 1st DCA 1987) (holding that because lender had not exercised its optional right to accelerate until it filed its foreclosure complaint, the statute of limitations had not yet run); Conner v. Coggins, 349 So. 2d 780 (Fla. 1st DCA 1977) (rejecti…

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