GENERAL MORTGAGE ASSOCIATES, INC., ET AL., APPELLANTS,
v.
CAMPOLO REALTY & MORTGAGE CORPORATION, ET AL., APPELLEES
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The court held that a prepayment penalty cannot be awarded when the mortgagee has already accelerated the mortgage and recovered interest at the default rate, absent specific contractual provision.
A mortgagee sought to recover a prepayment penalty after accelerating a mortgage and collecting default interest. The mortgage contained a clause stat…
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SCHWARTZ, Chief Judge.
On the authority of Florida Nat’l Bank v. Bankatlantic, 589 So. 2d 255 (Fla.1991), we conclude that, because there was no “intentional default” by the mortgagor, the trial court correctly declined to award the mortgagee a prepayment penalty — euphemistically called in this instance a “yield savings clause” — after the mortgagee both accelerated the mortgage and recovered interest at the default rate.
The mortgagee relies on dicta in the Fourth District opinion in Florida Nat’l Bank v. Bankatlantic, 557 So. 2d 596, 598 (Fla. 4th DCA 1990), quoted by the Supreme Court in Bankatlantic, 589 So. 2d at 258:
that unless otherwise specifically provided for in the note, the lender cannot upon the lender’s acceleration also collect the prepayment penalty, [e.s.]
The fact that this issue was raised for the first time in the reply brief alone precludes our consideration of the matter. Carrasquillo v. Holiday Carpet Serv. Inc., 615 So. 2d 862 (Fla. 3d DCA 1993); Rolling Oaks Homeowner’s Ass’n, Inc. v. Dade County, 492 So. 2d 686 (Fla. 3d DCA 1986), review denied, 503 So. 2d 328 (Fla.1987); Zerwal v. State Farm Mut. Auto. Ins. Co., 332 So. 2d 645 (Fla. 3d DCA 1976); St. Regis Paper Co. v. Hill, 198 So. 2d 365 (Fla. 1st DCA 1967); Pursell v. Sumter Elec. Co-op., Inc., 169 So. 2d 515 (Fla. 2d DCA 1964).
Going further than we need, however, we also find the position wanting on the merits. While the present instruments do contain a clause that:
[t]he foregoing prepayment penalties shall also apply in the event borrower defaults under the terms and conditions of this mortgage,
the provision does not “specifically” provide for recovery of the penalty after and in addition to the “lender’s acceleration” and the collection of default interest, as occurred here. It is therefore insufficient to comply with the requirements of the dicta in question.
Affirmed.
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Page v. City OF Fernandina Beach, 714 So. 2d 1070 (Fla. 1st DCA 1998)…onsider matters which are raised for the first time on appeal in an appellant’s reply brief; the court is confined solely to the points on appeal raised in appellant’s main brief. See General Mortg. Associates, Inc. v. Campolo Realty & Mortg. Corp., 678 So. 2d 431 (Fla. 3d DCA 1996); Carrasquillo v. Holiday Carpet Serv. Inc., 615 So. 2d 862 (Fla. 3d DCA 1993); Mestre Rental Co. v. Resources Recovery (Dade County), Inc., 568 So. 2d 1344 (Fla. 3d DCA 1990), overruled in part on other grounds by De Clements v. D…
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Earnest Mathis, Jr. v. Fla. Dep't OF Corr., 726 So. 2d 389 (Fla. 1st DCA 1999)…gated by statute”). . We decline to reach appellant's contention that PERC relied on an unpromulgated rule because this argument was made for the first time in the reply brief. See, e.g., General Mortgage Assocs. v. Campolo Realty & Mortgage Corp., 678 So. 2d 431, 431 (Fla. 3d DCA 1996); J.A.B. Enters. v. Gibbons, 596 So. 2d 1247, 1250 (Fla. 4th DCA 1992). . As explained, ante n. 2, PERC’s order determining DOC liable for back pay was interlocutory. . Time limits for initiating administrative adjudicatory…
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Walter Smithwick, III, M.D. v. Television 12 OF Jacksonville, Inc., 730 So. 2d 795 (Fla. 1st DCA 1999)…onsider it. See, e.g., Tillman v. State, 471 So. 2d 32, 35 (Fla.1985) (to be preserved for review, the specific legal argument raised on appeal must have been presented to the trial court); General Mortgage Assoc. v. Campola Realty & Mortgage Corp., 678 So. 2d 431 (Fla. 3d DCA 1996) (an appellate court will not consider an argument first presented in a reply brief). Even if we were to reach the merits, this argument would be unavailing. II. The Order Directing Return of the Documents Florida Rule of Judici…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Haim Zerwal v. State Farm Mut. Auto. Ins. Co., 332 So. 2d 645 (Fla. 3d DCA 1976)
- Rolling Oaks Homeowner's Ass'n, Inc. v. Dade Cnty., 492 So. 2d 686 (Fla. 3d DCA 1986)
- Ardiel Carrasquillo v. Holiday Carpet Serv., Inc., 615 So. 2d 862 (Fla. 3d DCA 1993)
- Pursell v. Sumter Elec. Co-Operative, Inc., 169 So. 2d 515 (Fla. 2d DCA 1964)
- ST. Regis Paper Co. v. Hill, 198 So. 2d 365 (Fla. 1st DCA 1967)
- Russo v. State, 557 So. 2d 596 (Fla. 3d DCA 1990)
- Fla. Nat'l Bank OF Miami v. Bankatlantic, 589 So. 2d 255 (Fla. 1991)