CONSORTION TRADING INTERNATIONAL, LTD. AND RONALD HUBNER, APPELLANTS,
v.
RICHARD LOWRANCE, APPELLEE
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The Third District Court of Appeal reversed a summary judgment of foreclosure, holding that the defendants properly pleaded affirmative defenses (waiver, estoppel, and bad faith) that raised genuine issues of material fact. The court also rejected the plaintiff's mootness argument, finding that the defendants' payment of the judgment was involuntary because it was made under threat of execution and levy.
Final summary judgment was improper because the defendants' affirmative defenses of waiver, estoppel, and bad faith raised genuine issues of material fact that precluded summary judgment. The appeal is not moot because the defendants' payment of the judgment was involuntary, made under threat of execution and levy, and a defendant need not post a supersedeas bond to preserve appeal rights when payment is involuntary.
[1] Final summary judgment of foreclosure is inappropriate where defendants properly pled affirmative defenses that raise genuine issues of material fact and are not barred b…
[2] Affirmative defenses to foreclosure may include waiver, estoppel, and bad faith.
Previewing 2 of 4 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“final summary judgment was not appropriate where the defendants had properly pled affirmative defenses to the foreclosure action that sounded in waiver, estoppel, and bad faith. These defenses raised genuine issues of material fact and were not barred by the statute of frauds.”
Establishes the core holding that affirmative defenses of waiver, estoppel, and bad faith raised factual issues precluding summary judgment.
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Join FLexlaw to unlock all legal intelligenceConsortion Trading International, Ltd. and Ronald Hubner were defendants in a foreclosure action brought by Richard Lowrance. The trial court granted …
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
We reverse the trial court’s order granting a final summary judgment of foreclosure against the defendants, Consortion Trading International, Ltd. and Ronald Hub-ner. In the instant case, final summary judgment was not appropriate where the defendants had properly pled affirmative defenses to the foreclosure action that sounded in waiver, estoppel, and bad faith. These defenses raised genuine issues of material fact and were not barred by the statute of frauds. Griffiths v. Barnett Bank, 603 So. 2d 690 (Fla. 2d DCA 1992); Brenowitz v. Central Nat’l Bank, 597 So. 2d 340 (Fla. 2d DCA 1992).
In addition, the appellee, the plaintiff below, argues that this appeal is moot because the defendants paid the final judgment and satisfied the mortgage. Specifically, the plaintiff argues that had the defendants wanted to preserve their right to appeal, they should have obtained a stay of execution by posting a supersedeas bond, instead of paying the final judgment. We disagree.
“The majority rule is that if a defendant who has suffered the entry of an adverse money judgment against him voluntarily pays the judgment, the ease is moot, but if payment is involuntary, it does not result in a waiver of the right to appeal.” Ronette Communications Corp. v. Lopez, 475 So. 2d 1360 (Fla. 5th DCA 1985). When a judgment is paid under the threat of execution and levy, the payment is considered involuntary. Ronette, 475 So. 2d at 1360 (citing Slater v. Breakwater Homes Ass’n, 413 So. 2d 148 (Fla. 4th DCA 1982)); Frank Silvestri Invs., Inc. v. Sullivan, 486 So. 2d 20 (Fla. 5th DCA 1986). “The fact that appellant could have obtained a stay of execution pending appeal by posting [a supersedeas bond] but did not is of no legal import.... Appellant’s right to appeal is not conditioned upon the posting of a supersedeas bond.” Ronette, 475 So. 2d at 1861.
In the instant case, the record shows that the defendants involuntarily paid the judgment to avoid the public sale of their property. Accordingly, we find that the plaintiffs argument that the defendants voluntarily paid the judgment thereby making this appeal moot lacks merit.
Reversed and remanded for further proceedings consistent with this opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Ronette Commc'ns Corp. v. Pasquale Lopez, 475 So. 2d 1360 (Fla. 5th DCA 1985)
- Crews v. State, 603 So. 2d 690 (Fla. 2d DCA 1992)
- Brenowitz v. Cent. Nat'l Bank, 597 So. 2d 340 (Fla. 2d DCA 1992)
- Gawron v. State, 597 So. 2d 340 (Fla. 2d DCA 1992)
- Frank Silvestri Invs., Inc. v. Sullivan, 486 So. 2d 20 (Fla. 5th DCA 1986)
- Burgess v. State, 413 So. 2d 148 (Fla. 5th DCA 1982)
- Slater v. Breakwater Homes Ass'n, 413 So. 2d 148 (Fla. 4th DCA 1982)