JACOB BECKER, AND RACHEL BECKER, HIS WIFE, ISAAC GROSS AND ROSIE GROSS, HIS WIFE, LOUIS BAUM AND ANNA BAUM, HIS WIFE, HYMAN BIALIK AND LOUIS ADLER, APPELLANTS,
v.
THE CITY TRUST COMPANY, A FLORIDA CORPORATION, AS TRUSTEE, APPELLEE
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A Florida Supreme Court case concerning a foreclosure action on a trust deed where the lender agreed to allow the borrowers time to cure their default through negotiated payments, but then declined a tender of the full amount due and proceeded with foreclosure. The court reversed the foreclosure decree, holding that the lender's conduct constituted a condonation of the default and that the fees awarded were improper.
The foreclosure decree was erroneous. The lender's conduct of agreeing to pending settlement and taking no further steps constituted a condonation of the default, entitling the borrowers to cure by paying all past-due amounts and restoring the trust deed. The attorney's fee of $2,000 was excessive, and the trustee's fee of $453.34 lacked basis in the record beyond the trust deed agreement itself.
“This course of conduct had the effect of condoning the default in payment on the part of defendants, provided of course that payment was made in due course.”
Establishes that the lender's agreement to delay and allow negotiations constituted condonation of the default.
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Join FLexlaw to unlock all legal intelligenceAppellants executed a trust deed securing a $50,000 bond issue on Miami lands to Appellee, the trustee. Appellants defaulted on payments, but negotiat…
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— This suit was- brought by Appellee against Appellants in the Circuit Court of Dade County, to foreclose a trust deed but wound up in a scramble over fees. The trust deed embraced lands in Miami, Florida, *683but was given to secure a bond issue of fifty thousand dollars. There was a final decree of foreclosure in favor of Appellee and appeal was taken from that decree.
Errors are predicated on the entry of the final decree and on the decree overruling exceptions to the master’s report.
The defendants had defaulted on their payments and the suit to foreclose was seasonably brought and named the proper parties thereto but at the time the bill was filed, negotiations were under way to pay up all past due installments and reinstate the trust deed. On account of the interests involved and the residence of the parties, these negotiations were somewhat drawn out, but all this was known and agreed to by Appellee who also agreed to take no further steps in the cause pending settlement. This course of conduct had the effect of condoning the default in payment on the part of defendants, provided of course that payment was made in due course.
It appears that negotiations to pay up all past due installments proceeded to a point where the full amount due was ascertained and said amount tendered by Appellants but was declined by Appellee, though it was later-paid into registry of the court. The tender being declined, a special master was appointed, testimony was taken and a final decree was entered, including trustee’s fees of $453.34 and attorney’s fees of $2000.
There is no basis whatever in the record for the trustee’s fee except the agreement in the trust deed to pay such fees. These agreements must have something to support them before fees under them can be collected. The record and the evidence fully support the agreed indulgence to pay up all past due amounts, restore the status of the trust deed and to forego further proceedings in the cause.
We think therefore that the final decree was erroneous, that Appellants should have been permitted to pay up *684all amounts due and restore the status of this trust deed and that the attorney’s fee allowed was excessive.
The final decree is accordingly reversed.
Reversed.
Whitfield, P.J., and Terrell and Davis, J.J., concur.
Buford, C.J., and Ellis and Brown, J.J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Adler v. Superior Apts. Corp., 119 Fla. 127 (Fla. 1935)…owed were excessive; that no basis existed to support the allowance of fees for the trustee and that the appellants should have been permitted to pay up the amounts due and that the status of the trust deed be restored. See Becker v. City Trust Co., 102 Fla. 682, 136 South. Rep. 642. Two years later an appeal was taken from an amended or new decree. During the pendency of the first appeal the Chancellor allowed the defendants to withdraw the amount deposited in the registry of the court. When the mandate r…
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Becker v. Taylor, 111 Fla. 731 (Fla. 1933)…Per Curiam. This is the second appearance of this case here. Becker v. City Trust Company, 102 Fla. 682, 136 So. 642. The former appeal was from a decree foreclosing [*732] a trust deed. It was found that the defendants had defaulted in their payments thereon and that the suit to foreclose was seasonably brought but that at the time it was brought, ne…
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Adler v. Becker, 130 Fla. 330 (Fla. 1937)…Chapman, J. This cause’makes its appearance in this Court for the fifth time. It is reported in Becker, et al., v. The City Trust Company, 102 Fla. 682, 136 Sou. Rep. 642; Becker v. Taylor, Receiver, 111 Fla. 731, 149 Sou. Rep. 591; Adler v. Superior Apts. Corp., 119 Fla. 127, 160 Sou. Rep. 868; State, ex rel. Adler v. Barns, 123 Fla. 184, 166 Sou. Rep. 589. The parties will be referred to herein a…1 / 2
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