BARE NECESSITIES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
MARIA DEL CARMEN ESTRADA, APPELLEE
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Bare Necessities appealed a foreclosure judgment, arguing that its payment of all amounts due before receiving notice of acceleration precluded foreclosure. The Third District Court of Appeal affirmed the foreclosure judgment, holding that the trial court's factual determinations were supported by competent, substantial evidence and that Bare Necessities was not entitled to relief from judgment.
The court affirmed the foreclosure judgment. First, competent, substantial evidence supported the trial court's factual finding that acceleration notice was given before Bare Necessities made its payments current, thus the acceleration was not precluded by tender. Second, the trial court did not abuse its discretion in denying Bare Necessities' Rule 1.540 motion for relief from judgment, as the documents purportedly demonstrating the mortgagee's dishonesty were available to Bare Necessities at trial.
[1] A contractual provision for acceleration of a mortgage indebtedness may be disregarded where the mortgagor tenders payment of defaulted items after the default but before…
[2] An effective tender to obviate mortgage acceleration must be made before the mortgagee makes an election to accelerate.
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Join FLexlaw to unlock all legal intelligence“a contractual provision for acceleration of a mortgage indebtedness may be disregarded where "the mortgagor tenders payment of defaulted items, after the default but before notice of the mortgagee's election to accelerate has been given"”
Establishes the legal rule that timely tender of payment can prevent acceleration of mortgage obligations
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Join FLexlaw to unlock all legal intelligenceBare Necessities, Inc., a mortgagor and owner of commercial real estate, allegedly made installment payments to cure a default. The dispute centered o…
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WELLS, Judge.
Bare Necessities, Inc. (Mortgagor), the owner of a parcel of commercial real estate, appeals a final judgment of foreclosure claiming that foreclosure was precluded by its payment of all amounts due prior to receipt of notice of acceleration. See Campbell v. Werner, 232 So. 2d 252, 256 (Fla. 3d DCA 1970)(concluding that a contractual provision for acceleration of a mortgage indebtedness may be disregarded where “the mortgagor tenders payment of defaulted items, after the default but before notice of the mortgagee’s election to accelerate has been given”); see also New England Mut. Life Ins. Co. v. Luxury Home Builders, Inc., 311 So. 2d 160, 163 (Fla. 3d DCA 1975)(noting that “while ac celeration can be obviated by a tender by the mortgagor (owner), made after a default or defaults, to pay all amounts due, in order for such a tender to be effective it must be made before an election to accelerate is made”).
Although the evidence was conflicting as to whether Bare Necessities made its installment payments current before notice of acceleration was received, the trial court resolved this issue in the mortgagee’s favor. Since there is competent, substantial evidence to support this determination, we affirm on this point. See, e.g., Bryan v. Butterworth, 692 So. 2d 878, 881 (Fla.1997)(holding that when competent, substantial evidence supports a trial court’s ruling, the appellate court will not “second-guess the trial court”); Orme v. State, 677 So. 2d 258, 262 (Fla.l996)(observing “[o]ur duty on appeal is to review the record in the light most favorable to the prevailing theory and to sustain that theory if it is supported by competent substantial evidence”); Shaw v. Shaw, 334 So. 2d 13, 16 (Fla.l976)(stating “[i]t is not the function of the appellate court to substitute its judgment for that of the trial court.... The test ... is whether the judgment of the trial court is supported by competent evidence”); Espino v. Anez, 665 So. 2d 1080, 1081-82 (Fla. 3d DCA 1995)(confirming that appellate courts may not reweigh the evidence or make credibility determinations and must affirm the factual determinations of the trier of fact if supported by any competent evidence).
We also reject Bare Necessities’ claim that, because the final judgment was based in significant part on credibility determinations, it was entitled to have the judgment set aside because its own telephone records demonstrated that the mortgagee had lied about giving Bare Necessities telephonic notice of its default. As the trial court noted, not only were the notices of default and acceleration the focus of both the trial and substantial discovery, but the documents purportedly confirming the mortgagee’s dishonesty about the notice of default were also available to Bare Necessities, and at its disposal for impeachment and any other purposes, at the time of trial. Under the circumstances, we find no abuse of discretion in the denial of Bare Necessities’ rule 1.540 motion. See LPP Mortgage Ltd. v. Bank of America, N.A., 826 So. 2d 462, 463-64 (Fla. 3d DCA 2002)(noting that “[wjhether relief should be granted pursuant to Rule 1.540 is a fact specific question and the trial court’s ruling should not be disturbed on appeal absent a gross abuse of discretion”); Ashland Oil, Inc. v. Pickard, 289 So. 2d 781, 782 (Fla. 3d DCA 1974)(confirming that relief from judgment under rule 1.540(b)(3) is directed to the sound discretion of the trial court); see also Shongut v. Malnik, 173 So. 2d 708, 709 (Fla. 3d DCA 1965) (finding no abuse of discretion in denial of a motion under the predecessor to rule 1.540 where the matters raised in the motion were “available to the movant during the trial proceedings”).
Since we find no merit in Bare Necessities’ remaining point regarding equitable re-instatement of the mortgage, we affirm the final judgment of foreclosure.
AFFIRMED.
GREEN, J., concurs.
COPE, J.
(dissenting).
The appellee lender had for years accepted late payments from the appellant borrower. If the lender wanted to change that practice and insist on strict compliance, she had the right to do so — upon giving fair notice to the borrower. Instead she switched to a position of requiring strict compliance from the borrower (without fair notice) while asking the court to excuse her procedural irregularities in sending the notice of acceleration to a nonexistent address, and closing her bank account in an attempt to prevent the borrower from making a payment.
It was inequitable under these circumstances to foreclose the mortgage.
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LRB Holding Corp. v. Bank OF Am., N.A., 944 So. 2d 1113 (Fla. 3d DCA 2006)…in default any of the previous thirty-nine times that LRB did not make its payment on time. The record supports the trial court’s determination that LRB did not cure the default by making the May 2005 payment. See Bare Necessities, Inc. v. Estrada, 902 So. 2d 184, 185 (Fla. 3d DCA 2005). Therefore, we conclude that the Bank had the right to find LRB in default. We also reject LRB’s second argument that the Bank’s prior acceptance of LRB’s late fees waived the Bank’s right to enter a default without notice.…
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Coconut Grove Acquisition, LLC v. S&C Venture, 240 So. 3d 92 (Fla. 3d DCA 2018)…om the parties’ expert witnesses and evaluating the witnesses’ credibility. The trial court’s finding is supported by competent substantial evidence, and thus, we will not second guess the trial court on appeal. Bare Necessities, Inc. v. Estrada, 902 So. 2d 184, 185 (Fla. 3d DCA 2005) (noting that “when competent, substantial evidence supports a trial court’s ruling, the appellate court will not ‘second-guess the trial court’”) (citing Bryan v. Butterworth, 692 So. 2d 878, 881 (Fla. 1997)). CONCLUSION…
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Pianeta Miami, Inc. v. Alan and Diane Lieberman, 990 So. 2d 551 (Fla. 3d DCA 2008)…nd substantial record evidence. See Bryan v. Butterworth, 692 So. 2d 878 (Fla.1997)(when competent, substantial evidence supports trial court’s ruling, the appellate court will not “second guess the trial court.”); Bare Necessities, Inc. v. Estrada, 902 So. 2d 184 (Fla. 3d DCA 2005)(where finding of fact is based on competent, substantial evidence, the finding should be affirmed). Finding no merit to any of the remaining issues on appeal, we affirm. . The counter-claim was bifurcated with liability to be de…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)
- Orme v. State, 677 So. 2d 258 (Fla. 1996)
- Campbell v. Werner, 232 So. 2d 252 (Fla. 3d DCA 1970)
- The City OF Pensacola v. Blanchard, 232 So. 2d 252 (Fla. 1st DCA 1970)
- NEW England Mut. Life Ins. Co. v. Luxury Home Builders, Inc., 311 So. 2d 160 (Fla. 3d DCA 1975)
- Bryan v. Butterworth, 692 So. 2d 878 (Fla. 1997)
- Miller v. Fla. Dep't OF Corr. & Fla. Parole Comm'n, 826 So. 2d 462 (Fla. 1st DCA 2002)
- Metro. Dade Cnty. v. Cary Kogen, 665 So. 2d 1080 (Fla. 3d DCA 1995)
- Espino v. Oswaldo Anez, 665 So. 2d 1080 (Fla. 3d DCA 1995)
- Ashland OIL, Inc. v. Rod Pickard, 289 So. 2d 781 (Fla. 3d DCA 1974)