ARTHUR LEVINE, ET AL., APPELLANTS,
v.
UNITED COMPANIES LIFE INSURANCE COMPANY, APPELLEE
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The court held that guarantors are liable only for a deficiency after foreclosure and that appraisal/environmental fees are not recoverable without loan document provision. It also held the trial court did not err in denying a motion to amend pleadings to assert usury.
[1] Guarantors of a purchase mortgage loan are liable only for the deficiency amount established subsequent to a foreclosure.
[2] A party is not entitled to an award for appraisal and environmental assessment fees if the loan documents do not provide for such fees.
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Join FLexlaw to unlock all legal intelligenceAppellants appealed a judgment of foreclosure and money damages. The appeal concerned the liability of guarantors, the award of certain fees, and the …
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PER CURIAM.
Appellants, Arthur Levine, et al., appeal from a judgment of foreclosure and money damages. We reverse in part and affirm in part.
Appellee, United Companies Life Insurance Co., correctly concedes the first two points on appeal. First, guarantors of a purchase mortgage loan should be liable only for the amount of a deficiency if established subsequent to a foreclosure. See Hatton v. Barnett Bank, 550 So. 2d 65, 66-68 (Fla. 2d DCA 1989). Therefore, the guarantors here may not be held liable for the full amount of the judgment prior to a determination of a deficiency. Second, appellee is not entitled to an award for appraisal and environmental assessment fees where the loan documents do not provide for either fee.
Turning to the contested issue on appeal, we conclude that the trial court did not abuse its discretion in denying appellants’ motion to amend their pleadings to state an affirmative defense of usury. See Costa Bella Dev. Corp. v. Costa Dev. Corp., 445 So. 2d 1090 (Fla. 3d DCA 1984). While the trial court has discretion to grant amendments to pleadings even during trial, this liberality diminishes as the case progresses. Ruden v. Medalie, 294 So. 2d 403, 406 (Fla. 3d DCA 1974).
In addition, the mortgage note expressly stated that interest was to be charged only at a lawful percentage. The inclusion of this language in loan documents has been held to' warrant dismissal of a usury claim. Forest Creek Dev. Co. v. Liberty Sav. & Loan Ass’n, 531 So. 2d 356, 357 (Fla. 5th DCA 1988), review denied, 541 So. 2d 1172 (Fla.1989).
Finally, the trial court did not award the prepayment penalty. Appellants had asserted that this penalty in combination with the default interest rate constituted usury. Thus, the court’s refusal to permit the amendment was harmless since the court effectuated the parties’ expressed intent that a usurious rate not be charged or received. Accordingly, we reverse the trial court on the issues to which appellee confessed error while, at the same time, affirming the trial court’s denial to amend the pleadings.
Reversed in part; affirmed in part.
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Levine v. United Cos. Life Ins. Co., 659 So. 2d 265 (Fla. 1995)…PER CURIAM. We have for review Levine v. United Companies Life Insurance Co., 638 So. 2d 183 (Fla. 3d DCA 1994), which directly and expressly conflicts with Jersey Palm-Gross, Inc. v. Paper, 639 So. 2d 664 (Fla. 4th DCA 1994), approved, 658 So. 2d 531 (Fla.1995). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the result rea…
Authorities Cited
- Ruden v. Medalie, 294 So. 2d 403 (Fla. 3d DCA 1974)
- Costa Bella Dev. Corp. v. Costa Dev. Corp., 445 So. 2d 1090 (Fla. 3d DCA 1984)
- Forest Creek Dev. Co. v. Liberty Sav. & Loan Ass'n, 531 So. 2d 356 (Fla. 5th DCA 1988)
- Hatton v. Barnett Bank OF Palm Beach Cnty., 550 So. 2d 65 (Fla. 2d DCA 1989)