Ernest v. Carter, 78-932
| Decision Date | 07 March 1979 |
| Docket Number | No. 78-932,78-932 |
| Citation | 368 So.2d 428 |
| Parties | Asa M. ERNEST and Anita B. Ernest, Appellants, v. James M. CARTER, Vickie B. Carter, and General Electric Credit Corporation, Appellees. |
| Court | Florida District Court of Appeals |
Edson L. Garrabrants, Jr., of the Burton Professional Ass'n, Clearwater, for appellants.
Wayne J. Boyer, Clearwater, for appellees.
Plaintiffs brought suit to enforce their rights and to foreclose those of defendants under an agreement for deed. At the close of the plaintiffs' case the trial court entered an order of dismissal, but required the defendants to pay all past due installments within forty-eight hours. The trial court also denied plaintiffs' request for attorneys' fees and ordered each side to bear their own costs. On this appeal by plaintiffs we hold they presented a prima facie case and that dismissal of their amended complaint was therefore error. We reverse.
Plaintiffs and defendants entered into an agreement for deed whereby the defendants agreed to purchase certain real property on an installment basis with monthly payments of principal, interest, taxes and insurance. The agreement provided for an acceleration of the debt at the option of the plaintiffs in the event of a default in payments, and made the defendants liable for all costs of collection, including reasonable attorneys' fees. Such an agreement is in essence a mortgage, and the foreclosure thereof is governed by the rules applicable to mortgage foreclosures. Adkinson v. Nyberg, 344 So.2d 614 (Fla. 2d DCA 1977).
To establish their entitlement to foreclose it was incumbent upon the plaintiffs to prove their agreement, a default by the defendants, that plaintiffs properly accelerated the debt to maturity, and the amount due. The evidence must be considered in the light most favorable to the nonmoving party, Glass v. Long, 341 So.2d 1066 (Fla. 2d DCA 1977), and if a prima facie case has been established, dismissal is improper. Tillman v. Baskin, 260 So.2d 509 (Fla.1972). We have reviewed the evidence and, considered in the light most favorable to the plaintiffs, it was sufficient to establish a prima facie case as to all of the aforementioned elements. It was therefore error to dismiss plaintiffs' amended complaint.
We deem it unnecessary at this time to address the issue of attorneys' fees incurred by plaintiffs at the trial level. That issue is premature until the trial court has heard all the evidence, including...
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Mace v. M&T Bank
...parts of the total amount of indebtedness, proof of which is necessary to secure a foreclosure judgment. See Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d DCA 1979). The final judgment in Doyle stated a total amount of indebtedness and identified it as being comprised of five items. Doyle,......
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White v. Brousseau
...5th DCA 1982); Purcell v. Williams; First Federal Savings & Loan Association v. Fox, 440 So.2d 652 (Fla. 2d DCA 1983); Ernest v. Carter, 368 So.2d 428 (Fla. 2d DCA 1979); Adkinson v. Nyberg, 344 So.2d 614 (Fla. 2d DCA 1977); Torcise v. Perez, 319 So.2d 41 (Fla. 3d DCA 1975); Hoffman v. Seme......
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Green Emerald Homes, LLC v. 21st Mortg. Corp.
...a party to the note and mortgage. The amount due under the note is an element of the foreclosure cause of action. See Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d DCA 1979) ; Liberty Home Equity Sols., Inc. v. Raulston, 206 So. 3d 58, 60 (Fla. 4th DCA 2016) ; Bank of Am., N.A. v. Delgado,......
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Spencer v. Ditech Fin., LLC
...court with the object of settling on a general approach that we can apply on a principled basis across cases.1 See Ernest v. Carter, 368 So.2d 428, 429 (Fla. 2d DCA 1979) (stating that proof of the amount due is necessary to establish entitlement to foreclose); see also Liberty Home Equity ......
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Chapter 12-1 Introduction
...5th DCA 2017); Pealer v. Wilmington Tr. Nat'l Ass'n, 212 So. 3d 1137, 1139 (Fla. 2d DCA 2017) (Sleet, J. concurring); Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d DCA 1979); Kelsey v. SunTrust Mortg., Inc., 131 So. 3d 825, 826 (Fla. 3d DCA 2014); Bank of Am., N.A. v. Delgado, 166 So. 3d 8......