KATE W. VINCENT, A FREE DEALER, APPELLANT,
v.
HELEN W. LAWSON AND W. A. LAWSON, HER HUSBAND, APPELLEES
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Mortgagor appellant obtained a foreclosure decree, received a certificate of title following foreclosure sale, but the trial court vacated the decree and sale when the mortgagee tendered full payment and claimed the mortgagor had agreed to suspend proceedings with no fixed deadline for payments. The appellate court affirmed the vacation, finding substantial evidence supported the trial court's factual finding that notice was required before resuming foreclosure.
The trial court properly vacated the foreclosure decree and sale. If the defendant's version of the agreement terms is accepted—that no specific deadline was set for payments and defendant would pay 'as often as I could'—then plaintiff should have given notice fixing a reasonable future time for compliance before resuming foreclosure proceedings.
[1] A trial court may vacate a foreclosure decree, sale, and certificate of title upon a defendant's motion, even after the decree has been entered and the sale completed, if…
[2] A party to a foreclosure proceeding who agrees to suspend action in exchange for periodic payments may be required to provide notice to the defendant before resuming fore…
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Join FLexlaw to unlock all legal intelligence“Conflicts in testimony are to be reconciled by the trier of the facts; in this case, the trial judge. We are not authorized to reverse if there is substantial evidence in the record to support the conclusions of the trier of the facts.”
Establishes the standard of review on appeal: appellate court will not reverse factual findings if supported by substantial evidence.
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Join FLexlaw to unlock all legal intelligencePlaintiff Vincent obtained a foreclosure decree against defendants Lawson. After foreclosure sale and issuance of certificate of title to Vincent, the…
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This is an appeal by the plaintiff who had obtained a foreclosure decree in the *163trial court, but which decree was vacated by the trial court upon defendant’s motion made several months subsequent to the entry of the decree, foreclosure sale of the property and the issuance of certificate of title to the plaintiff. With the motion to vacate the decree defendant tendered into court the full amount due on account of principal, interest, costs and attorney fees. The appeal is from the trial court’s order vacating the final decree, the foreclosure sale, and the certificate of title held by plaintiff.
Defendant’s motion to vacate was based upon the fact that shortly after institution of suit plaintiff and defendant agreed upon suspension of the proceedings if defendant would make certain periodical payments toward discharging a delinquency existing at the time of suit. Defendant argued that thereafter plaintiff could not lawfully resume action without first giving defendant notice of such an intention.
No responsive pleading was filed to the motion to vacate, but, nevertheless, a hearing was held at which time testimony on the motion was heard by the trial judge.
In reviewing this testimony we find a conflict existing regarding the exact terms of the agreement according to which defendant was to make payments and plaintiff was to suspend prosecution of the foreclosure proceedings. According to plaintiff’s version of the agreement, time of performance by defendant was the essence of the contract, whereas defendant said that the payment made on the occasion of the agreement would “stop the foreclosure” and that there was no “set time”, “not any specific time” for paying the balance; that defendant “would make payments as often as I could”.
Conflicts in testimony are to be reconciled by the trier of the facts; in this case, the trial judge. We are not authorized to reverse if there is substantial evidence in the record to support the conclusions of the trier of the facts.
The trial judge ruled that plaintiff should have notified defendant of a resumption of the foreclosure proceedings. If defendant’s version of the terms of the agreement is to be accepted, as the trial judge had a right to do, plaintiff, indeed, should have given notice, fixing a reasonable time in the future for compliance, in default of which prosecution of proceedings would be resumed.
The motion to vacate was filed September 27, 1971. Defendant testified that she first learned of the action taken by plaintiff on or about August 10, 1971. We find justification in the record for the action of the trial judge.
Affirmed.
REED, C. J., and CROSS, J., concur.
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