CRESCENT BEACH CO. OF FLORIDA AND ROBERT R. HASTINGS, APPELLANTS,
v.
JOHN G. CONZELMAN AND VIRGINIA W. CONZELMAN, HUSBAND AND WIFE, APPELLEES

Fla. 2d DCA | 1975-11-12
No. 75-1004
HOBSON, A. C. J., and BOARDMAN, J., concur.
321 So. 2d 437 Florida District Court of Appeal, Second District (1975)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

This interlocutory appeal concerns a mortgage foreclosure dispute where the mortgagees (Conzelmans) sought to enforce subordinated mortgages following a default in a superior mortgage held by Lee County Bank. The court affirmed summary judgment for the mortgagees, holding that an extension of the superior mortgage granted after the acceleration of the subordinated mortgages could not retroactively vitiate the automatic default already triggered.


Holding

The extension of the superior mortgage could not vitiate the automatic default that had already occurred in the Conzelmans' mortgages. Once the superior mortgage was not paid in accordance with its terms and conditions, a default in the subordinated mortgages was automatically triggered. Additionally, even if a mortgagor could cure a default after acceleration in some circumstances, the mortgagors' failure to obtain the extension until over a month after declaration of default and two days after foreclosure was filed provided an independent reason to sustain the judgment.


Headnotes

[1] A subordination agreement providing that a default in a superior mortgage constitutes a default in a junior mortgage creates an automatic default in the junior mortgage u…

[2] An extension of time for payment of a superior mortgage, granted after a default has occurred and the junior mortgagee has declared acceleration, cannot retroactively cur…

Previewing 2 of 5 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

Key Quotes

“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.”

Establishes that failure to pay the superior mortgage in accordance with its terms triggered an automatic default in the subordinated mortgages.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The Conzelmans held two mortgages on adjacent lots, subordinated to a mortgage from Crescent Beach Co. to Lee County Bank. The Conzelmans' mortgages c…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
GRIMES, Judge.

GRIMES, Judge.

This is an interlocutory appeal from an order granting the mortgagees a summary judgment in a mortgage foreclosure action.

The appellees (Conzelmans) held two mortgages signed by Christine Hastings, a single woman, and Robert R. Hastings, Jr. The mortgages covered adjacent lots in a subdivision. Pursuant to a written agreement, one of the mortgages was subordinated to a mortgage given by the Hastings to the Lee County Bank. The subordination agreement provided that if a default occurred in the mortgage being subordinated, this would also constitute a default in the other mortgage held by the Conzel-mans. Both Conzelman mortgages contained the following provision:

“10. That in the event this mortgage is junior and inferior to any other mortgage and/or lien on the above described real property, and this mortgage is given with knowledge of such superior mortgage (s) and/or lien(s), that said superi-or mortgage(s) and/or lien(s) will be paid by mortgagor in accordance with the terms and conditions thereof, and failure to make said payment (s) will constitute an automatic default in this mortgage.”

Subsequent to the execution of the three mortgages, all of the property was conveyed to Crescent Beach Co. of Florida (Crescent Beach Co.). The principal amount of the note secured by the mortgage to the Lee County Bank was $30,000, all of which was due and payable on September 7, 1974. When this note was not paid, the Lee County Bank, by letter dated December 10, 1974, declared its mortgage to be in default and demanded full payment of the principal and interest. On December 19, 1974, the Conzelmans’ attorney wrote the president of Crescent Beach Co. declaring the two mortgages held by them to be in default by reason of the default in the Lee County Bank mortgage. This letter further advised that the Conzelmans had elected to exercise their option to accelerate both mortgages and demanded payment in full within fifteen days.

When the Conzelmans did not receive the requested payment, they filed suit on January 20, 1975, to foreclose their mortgages. On January 22, 1975, the Lee County Bank mortgage was purchased by certain testamentary trustees, one of whom was the president of Crescent Beach Co. The trustees then advised Mr. Hastings and the Conzelmans that they had extended the due date of the Hastings-Lee County Bank mortgage to July 15, 1975. The foreclosure action was defended upon the ground that since the Lee County Bank mortgage was no longer in default, the Conzelmans had no right to accelerate their mortgages.

The appellants argue that an extension of time for the payment of the Lee County Bank mortgage could be given without the permission of the Conzelmans. Be that as it may, the fact that the extension was given could not avoid the acceleration of the Conzelman mortgages which specifically provided that the superior mortgage (the Lee County Bank mortgage) would be “paid by mortgagor in accordance with the terms and conditions thereof, and failure to make said payment(s) 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 entered below should be sustained. The mortgagors did not obtain the extension on the Lee County Bank mortgage until over a month after the Conzelmans had declared their mortgages in default and demanded payment in full and two days after the suit to foreclose had been filed. While there are recognized circumstances which permit a mortgagor to cure his default even after the mortgagee has exercised his election to accelerate, none of these circumstances appear in this record. See New England M. L. Ins. Co. v. Luxury Home Bldrs., Inc., Fla.App.3d, 1975, 311 So. 2d 160; Campbell v. Werner, Fla.App. 3d, 1970, 232 So. 2d 252. Moreover, to the extent that the trial court has discretion in this area, it was exercised adversely to the appellants.

Affirmed.

HOBSON, A. C. J., and BOARDMAN, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw