HELEN R. TOMPKINS, A/K/A HELEN R. BLACKMON, AND TINA KGOS, APPELLANT,
v.
JIM WALTER HOMES, INC., APPELLEE

Fla. 5th DCA | 1995-06-30
No. 94-873
HARRIS, C.J., and COBB, J., concur.
656 So. 2d 963 Florida District Court of Appeal, Fifth District (1995) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Helen Blackmon appeals a foreclosure judgment entered against her by Jim Walter Homes, Inc. Blackmon argues that Jim Walter was precluded from foreclosing because she mailed a partial payment before foreclosure was filed and because Jim Walter's prior acceptance of late payments should have required actual notice before foreclosure. The court affirmed the foreclosure judgment, holding that a partial payment does not prevent acceleration and that Blackmon failed to establish an estoppel defense.


Holding

The court held that Jim Walter was not precluded from foreclosing. A partial payment that does not bring an account current does not prevent a mortgagee from exercising its right to accelerate. Additionally, Blackmon failed to establish an estoppel defense because she could not show clear misleading conduct that she relied upon, and notice of default and acceleration could be imputed to her because the certified letter was delivered to her post office box.


Headnotes

[1] A mortgagee is not prevented from exercising its option to accelerate a mortgage when a mortgagor makes only a partial tender of the arrearages.

[2] A mortgagor seeking to establish an estoppel defense against a mortgagee must make a clear showing that the mortgagee engaged in misleading conduct upon which the mortgag…

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Key Quotes

“As Blackmon made only a partial tender of the arrearages, Jim Walter was not prevented from exercising its option to accelerate the mortgage.”

Establishes that a partial payment does not prevent acceleration of the mortgage debt.

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Facts & Procedural History

Blackmon's mortgage required monthly payments due on the 5th with a 30-day grace period. She made 163 payments, with 60 made after the grace period ex…

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Opinion of the Court
THOMPSON, Judge.

THOMPSON, Judge.

Helen R. Tompkins, a/k/a Helen R. Black-mon,1 timely appeals a final judgment of foreclosure entered in favor of appellee, Jim Walter Homes, Inc. Blackmon argues that Jim Walter was precluded from foreclosing on the subject property because (1) Black-mon sent the delinquent mortgage payments by United States mail before Jim Walter filed the foreclosure complaint, and (2) Jim Walter was required to give her actual notice before filing for foreclosure because it previously had accepted late payments.2 We disagree and affirm the trial court’s final judgment.

The terms of the mortgage required Black-mon to repay the mortgage amount in monthly installments due the 5th day of each month with a 30-day grace period. Black-mon made the majority of her 163 payments after the due date, 60 of which were made after the 30-day grace period had expired. Blackmon’s account was turned over to an attorney for foreclosure on 19 March 1992. The attorney sent Blackmon a certified letter, dated 23 March 1992, stating that her past due account would be reinstated if she paid the past due amount plus attorney’s fees of $75.00. Blackmon testified that she never received the letter, although it was addressed to the correct post office box. The letter was returned to Jim Walter marked “unclaimed.” On either 8 or 9 June 1992, Blackmon sent Jim Walter a payment of $618.30 for April, May, and June. Blackmon had not made the March payment. On 16 June 1992, Jim Walter filed a foreclosure complaint against Blackmon.

The trial court held a hearing and entered a final judgment of foreclosure finding Blackmon owed Jim Walter $14,-366.50, including principle, interest, and costs and attorney’s fees.

Blackmon’s first argument on appeal is that Jim Walter had no right to accelerate the mortgage because Blackmon mailed her payment after the default, but before Jim Walter gave notice of its election to accelerate. See Campbell v. Werner, 232 So. 2d 252, 256 (Fla. 3d DCA 1970). The 8 June 1992 check indicated that it was payment for April, May, and June, but Blackmon also was in default for March. This check, therefore, did not bring Blackmon’s account current. As Blackmon made only a partial tender of the arrearages, Jim Walter was not prevented from exercising its option to accelerate the mortgage. River Holding Co. v. Nickel, 62 So. 2d 702, 704 (Fla.1952). The trial court, therefore, did not err in entering the judgment of foreclosure on this ground.

Blackmon’s second argument is that Jim Walter’s previous acceptance of late payments estopped Jim Walter from foreclosing without first giving Blackmon actual notice of the foreclosure. See, e.g., David v. Sun Fed. Sav. & Loan Ass’n, 461 So. 2d 93, 96 (Fla.1984) (citing Campbell, 232 So. 2d at 256-57). To establish an estoppel defense, the mortgagor must make a clear showing that the mortgagee engaged in misleading conduct which the mortgagor relied upon in believing that the mortgagee would not require strict performance under the mortgage terms. Lambert v. Dracos, 403 So. 2d 481, 482 (Fla. 1st DCA 1981). In the instant case, Blackmon admitted that she received phone calls about her account and that she was threatened with foreclosure for insurance premiums allegedly owed.

Additionally, notice of the default and acceleration may be imputed to Blackmon because the evidence revealed that Jim Walter’s certified letter was delivered to her post office box and that she failed to pick it up. See Belcher v. Ferrara, 511 So. 2d 1089 (Fla. 3d DCA 1987) (imputing notice of attorney’s withdrawal and of trial date to client who failed to open mail or otherwise communicate with attorney). This evidence supports the trial court’s decision to reject Blackmon’s estoppel defense. As the trial court did not abuse its discretion in rejecting Blackmon’s defenses, we affirm the trial court’s final judgment of foreclosure.

AFFIRMED.

HARRIS, C.J., and COBB, J., concur. . A default was entered below against appellant Tina Kgos, and Blackmon raises no issues on appeal regarding Kgos.

. Blackmon also has raised a third issue, which is addressed in our discussion of the first two issues.


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Citator

Cited By

  • LRB Holding Corp. v. Bank OF Am., N.A., 944 So. 2d 1113 (Fla. 3d DCA 2006)
    …It was LRB’s repeated failure to make timely payments that led to the Bank’s decision to accelerate the note. The trial court did not abuse its discretion in rejecting LRB’s waiver/affirmative defenses argument. Tompkins v. Jim Walter Homes, Inc., 656 So. 2d 963 (Fla. 5th DCA 1995) (where mortgagee did not engage in misleading conduct, the trial court did not err in rejecting affirmative defenses); August Tobler, Inc. v. Goolsby, 67 So. 2d 537 (Fla.1953)(absent notice re [*1115] quirement in contract, notic…
  • Procacci v. Procacci, 729 So. 2d 522 (Fla. 4th DCA 1999)
    …r, payment is considered “tendered” on the date it is mailed, not the date that it was received. See Neuman v. Ferris, 432 So. 2d 641 (Fla. 4th DCA 1983) (deposit by mail constitutes delivery of payment); see also Tompkins v. Jim Walter Homes, Inc., 656 So. 2d 963 (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,…

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