Bellman v. Yarmark Enterprises, Inc.

• Decision Date: 09 November 1965
• Docket Number: No. 65-7,65-7
• Citation: 180 So.2d 663
• Parties: Haroid BELLMAN and Clemence Bellman, his wife, Appellants, v. YARMARK ENTERPRISES, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 663

180 So.2d 663

Haroid BELLMAN and Clemence Bellman, his wife, Appellants, v. YARMARK ENTERPRISES, INC., a Florida corporation, Appellee.

No. 65-7.

District Court of Appeal of Florida, Third District.

Nov. 9, 1965.

Rehearings Denied Dec. 21, 1965.

Louis Vernell, Miami Beach, for appellants.

Dubbin, Schiff, Berkman & Dubbin and Norman Somberg, Miami, for appellee.

Before HENDRY, C. J., and TILLMAN PEARSON and SWANN, JJ.

PER CURIAM.

The appellant was the defendant in a mortgage foreclosure and the counter-plaintiff in an action to secure forfeiture of interest payments pursuant to section 697.05(4), Florida Statutes, F.S.A. He defended in the trial court upon the ground that the mortgage was void for usury. The Counterclaim was dismissed for failure to state a cause of action. A final decree of foreclosure

was entered and this appeal followed. Two points on appeal were presented. The first is as follows:

'THAT WHERE IN A SUIT TO FORECLOSE MORTGAGE, THE MORTGAGOR AFFIRMATIVELY PLEADS THE DEFENSE OF USURY AND THE UNDISPUTED EVIDENCE IN THE CAUSE REFLECTS THE EXACTION AND CHARGE BY THE MORTGAGEE OF BOTH THE PRINCIPAL SUM OF MONEY LOANED PLUS A SUM IN EXCESS OF 25% THEREOF, A FINAL DECREE OF FORECLOSURE ENTERED IN FAVOR OF SUCH MORTGAGEE FOR THE FULL AMOUNT OF SUCH LOAN IS ERRONEOUS AND SHOULD BE REVERSED.'

The two principal witnesses relied upon by appellant for the proof of usury were substantially impeached and we cannot say that the trial court was bound to accept their testimony. A chancellor as the 'finder of fact' may find a witness who has been impeached completely unworthy of belief, and in such circumstances it is within his province to reject such testimony. See Roundtree v . Davis, 124 Fla. 212, 167 So. 820 (1936); and Padron v. State, Fla.App.1963, 153 So.2d 745. The credibility of the evidence of these two witnesses was an essential element in the proof of usury. The chancellor heard the testimony and observed the demeanor of the witnesses. His findings come to this Court with a presumption of correctness which will not be lightly set aside. Augusta Corp. v. Strawn, Fla.App.1965, 174 So.2d 422. To reverse the chancellor would amount to nothing more than an unauthorized substitution of our own judgment for his on the credibility of the testimony. See Joyner v. Bernard, 148 Fla. 649, 6 So.2d 533 (1942). We therefore conclude that the appellant has not demonstracted error upon the first point.

Appellant's second point concerns the dismissal of his counterclaim. He urges that the chancellor misconstrued section 697 .05 Florida Statutes, F.S.A., which is sometimes referred to as the 'balloon mortgage statute'. The section is as follows:

'697.05 Balloon mortgages; scope of law; definition; requirements as to contents; penalties for violations; exemptions

'(1) Any conveyance, obligation conditioned or defeasible, bill of sale or other instrument of writing conveying or selling real property for the purpose or with the intention of securing the payment of money, whether such instrument be from the debtor to the creditor or from the debtor to some third person in trust for the creditor, shall be deemed and held to be a mortgage, and shall be subject to the provisions of this section.

'(2) Every mortgage in which the final payment or the balance due and payable upon maturity is greater than twice the amount of the regular monthly or periodic payment of the said mortgage shall be deemed a balloon mortgage, and shall have printed or clearly stamped on such mortgage: THIS IS A BALLOON MORTGAGE AND THE FINAL PAYMENT OR THE BALANCE DUE UPON MATURITY IS _____, TOGETHER WITH ACCRUED INTEREST, IF ANY, AND ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE.

'This legend including the total amount due upon maturity shall appear at the top of the first page or face sheet of the mortgage and also immediately above the place for signature of the mortgagor. The legend shall be conspicuously printed or stamped in type as large as the largest type used in the text of the instrument, either as '(3) Failure of a mortgagee, creditor or a third party in trust for a mortgagee or creditor to comply with the provisions of this section shall automatically extend the maturity date of such mortgage in the following manner:

an over-print or by a rubber stamp impression.

'The final payment or the balance due and payable is to be divided by the regular monthly or periodic payment and the quotient so secured is to be the number of months or periods the maturity date of the mortgage is extended. The mortgagor shall continue to make such monthly or periodic payments until the principal of the mortgage is paid. All such payments shall be credited to the principal only.

'(4) Any mortgagee, creditor, bona fide holder, assignee, transferee, endorsee, or any agent, officer, or other representative of any such person violating the provisions of this section shall forfeit the entire interest charged, contracted to be charged or reserved under any such...