JAMES A. BOLLING AND ANNETTE H. BOLLING, HIS WIFE, APPELLANTS,
v.
JACK L. LAMBERSON ET AL., APPELLEES
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Mortgagees appealed a summary judgment that dismissed their foreclosure action. The court reversed, holding that an agreement with the SBA to provide 30 days' notice prior to instituting foreclosure proceedings does not modify the mortgagees' right to accelerate the debt upon default, and does not require a separate 30-day notice before acceleration.
The mortgagees' agreement with the SBA did not modify the terms of the note and mortgage or impose a requirement to provide separate notice to the SBA before acceleration. The agreement only required 30 days' notice prior to instituting foreclosure proceedings, and the mortgagees retained their contractual right to accelerate the debt without demand or notice within ten days after failure to pay an installment.
[1] A written agreement to provide notice to a third party prior to instituting foreclosure proceedings does not modify the underlying mortgage terms or create a grace period…
[2] A mortgagee's agreement to provide notice to a third party before foreclosure does not waive the right to accelerate the entire debt upon a mortgagor's failure to make an…
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“We cannot agree with the trial court that the mortgagees' agreement with the SBA effectively modified the terms of the note and mortgage and afforded 'a grace period within which any default or other breach might be cured.'”
The court's rejection of the mortgagors' interpretation that the SBA agreement created an additional cure period.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMortgagors owned a motel property that was severely damaged by hurricane. To obtain an SBA loan for restoration, the mortgagees agreed in writing to g…
The full statement of facts, procedural history, and disposition for this case are member content.
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SMITH, Judge.
The mortgagees appeal from a summary final judgment entered for the mortgagors and owners in a foreclosure proceeding. The encumbered motel property was severely damaged by a hurricane, following which the mortgagors applied for a Small Business Administration loan to restore the improvements. To induce SBA to grant the loan, the mortgagees agreed in writing to “give at least thirty days notice to [SBA] prior to instituting proceedings to foreclose or liquidate [their] . . . security interest.” Later, when the due date of the first mortgage payment had passed and no payment was made, the mortgagees gave written notice to the mortgagors that “the note and mortgage have been accelerated and that payment [is] demanded in full.” The mortgagees then gave written notice to SBA of their intention to institute foreclosure proceedings. Within thirty days of the latter notice, the mortgagors tendered the past due installments but not the entire debt. That tender was refused and a foreclosure complaint was filed. The trial court granted the mortgagors a summary judgment of dismissal because, while a thirty-day notice of intention to foreclose was given SBA after acceleration of the debt, the mortgagees gave no separate thirty-day notice to SBA of their intention to accelerate the debt for the mortgagors’ failure to pay an installment.
We cannot agree with the trial court that the mortgagees’ agreement with the SBA effectively modified the terms of the note and mortgage and afforded “a grace period within which any default or other breach might be cured.” By the terms of the mortgage the entire debt was subject to acceleration without demand or notice within ten days after failure of prompt payment of an installment. The mortgagees’ agreement with SBA did not cancel the mortgagees’ right of acceleration but only required a thirty-day notice “prior to instituting proceedings . . . .” Since the mortgagors’ equity of redemption continued under Florida law notwithstanding the institution of foreclosure proceedings, it may be wondered what benefit the mortgagees’ undertaking to SBA secured for the mortgagors or for SBA. Perhaps the thirty-day notice period was intended to enable the mortgagors with SBA’s assistance to pay the accelerated debt to avoid fees and costs before suit, or to prepare for suit; perhaps the SBA agreement afforded a grace period to cure defaults when a mortgagee’s right to accelerate is not reserved by the mortgage or recognized by State law; perhaps the mortgagees’ undertaking to SBA accomplished no benefit whatever to the mortgagors. In any event, we decline to give that undertaking effect beyond its terms. Without prejudice to the trial court’s considera tion of the equities in such further proceedings as may be proper, the summary judgment for the mortgagors is REVERSED. Campbell v. Werner, 232 So. 2d 252 (Fla. 3d DCA 1970).
MILLS, Acting C. J., and ERVIN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- 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)