MARY S. BARONE, A SINGLE WOMAN, AND ANTHONY F. BARONE, APPELLANTS,
v.
WILLIAM R. WATERS, APPELLEE
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This case concerns whether a default on a first mortgage constitutes a default on a second mortgage, thereby triggering an acceleration clause in a promissory note secured by the second mortgage. The court affirmed the summary judgment, holding that such a default did indeed trigger the acceleration clause.
Yes, a default on the first mortgage constitutes a default under the second mortgage, which in turn triggers the acceleration clause in the promissory note, making the entire remaining indebtedness immediately due at the option of the holder.
“If any installment of prin [*443] cipal or interest is not paid when due, or upon any default in the performance of .any of the covenants or agreements of this note, or of any instrument now or hereafter evidencing or securing this note * * * the whole indebtedness remaining unpaid shall, at the option of the holder, be immediately due”
This quote is the acceleration clause from the promissory note that was central to the court's analysis.
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Join FLexlaw to unlock all legal intelligenceThe appellants defaulted on a first mortgage. The second mortgage, which secured a promissory note, contained a clause stating that a default on the f…
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The basic contention of the appellants is that the summary final judgment entered against them was erroneous because there was a genuine issue of material fact. But the record reveals that the trial judge correctly entered the judgment because the defense asserted is without merit either in law or fact and the issues suggested are immaterial. Rawls v. Ziegler, Fla.1958, 107 So.2d 601.
The only substantial question presented is one of law as to the effect of an acceleration clause contained in the promissory note upon which suit was brought. The clause is: “If any installment of prin*443cipal or interest is not paid when due, or upon any default in the performance of .any of the covenants or agreements of this note, or of any instrument now or hereafter evidencing or securing this note * * * the whole indebtedness remaining unpaid shall, at the option of the holder, be immediately due * * [Emphasis supplied]. The trial judge correctly construed this clause to include a default upon a mortgage securing the note. The mortgage securing the note was a second mortgage and provided that a default under the terms of the first mortgage would constitute a default of the second mortgage. There is no controversy but that there was a default under the first mortgage and a foreclosure thereon. The default on the first mortgage was therefore a default on the second mortgage and the default on the second mortgage constituted a default in the performance of an agreement contained in an instrument securing the note. The default on the first mortgage therefore accelerated the payments due under the note.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Crescent Beach Co. OF Fla. & Robert R. Hastings v. Conzelman, 321 So. 2d 437 (Fla. 2d DCA 1975)…will constitute an automatic default in this mortgage.” When the Lee County Bank mortgage was not paid “in accordance with the terms and conditions thereof,” a default in the Con-zelmans’ mortgages then occurred. Barone v. Waters, Fla.App.3d, 1964, 165 So. 2d 442. The extension of time which brought the Lee County Bank mortgage out of default could not have had the effect of vitiating the “automatic default” in the Conzelmans’ mortgages which had already occurred. There is another reason why the order enter…
Authorities Cited
- Rawls v. Ziegler, 107 So. 2d 601 (Fla. 1958)