Harrell v. Lombard, 1695
| Decision Date | 09 September 1960 |
| Docket Number | No. 1695,1695 |
| Citation | 122 So.2d 625 |
| Parties | Hugh H. HARRELL and Margaret Harrell, his wife, Appellants, v. Daniel LOMBARD, a single man, Ernest Fuld and Rosalyn Fuld, his wife, Ben H. Barbour, Jr., and/or Mildred D. Barbour and Joseph Sassano, Appellees. |
| Court | Florida District Court of Appeals |
Anderson, Gundlach & Hull, Fort Lauderdale, for appellants.
Minnet, Allsworth, Doumar, Schuler & Elliott, Fort Lauderdale, for appellees, Ben H. Barbour, Jr., Mildred D. Barbour, and Joseph Sassano.
Daniel Lombard, in pro. per.
As holders of certain first mortgages, the plaintiffs, Hugh H. Harrell and Margaret Harrell, his wife, sought to foreclose them against parcels of land owned by Daniel Lombard, a defendant, upon which lands second mortgages were held by Ernest Fuld and Rosalyn Fuld, his wife, Ben H. Barbour, Jr. and Mildred D. Barbour, and Joseph Sassano, also defendants. The chancellor declined to grant a decree of foreclosure, and because of this, the appeal has ensued.
At the time of the institution of the foreclosure suit, the first mortgages were in default; and notice of acceleration had been given to the defendant-owner of the properties. The first mortgages provided that the defendant Lombard should pay all costs and expenses of foreclosure, including reasonable attorneys' fees.
The foreclosure was resisted. After final hearing, the chancellor determined that waiver and estoppel existed between the plaintiffs and the defendants-second mortgage holders precluding acceleration, but that none existed as between the plaintiffs and the owner Lombard. However, the court required that the second mortgagees, within ten days, bring the plaintiffs' mortgages to a current status, including the payments of insurance. In addition, the court determined that the plaintiffs were not entitled to attorneys' fees for services of their counsel, ordered that the court costs be borne proportionately by the respective defendants, and also directed that certain sums which had been paid into the registry of the court toward mortgage payments be turned over to the plaintiffs. The decree further provided that upon the second mortgagees' failure to pay the sums specified, the properties should be sold at a foreclosure sale pursuant to an order to be entered subsequently by the court.
The chancellor's decision that plaintiffs had waived or become estopped from enforcing the acceleration clause of the mortgages as to the defendants...
To continue reading
Request your trial
-
Campbell v. Werner
...v. Knight, 98 Fla. 1004, 124 So. 751; Jaudon v. Equitable Life Assur. Soc. of United States, 102 Fla. 782, 136 So. 517; Harrell v. Lombard, Fla.App.1960, 122 So.2d 625; Koschorek v. Fisher, Fla.App.1962, 145 So.2d 755; Overholser v. Theroux, Fla.App.1963, 149 So.2d 582.4 Kreiss Potassium Ph......
-
Flagler Center Bldg. Loan Corp. v. Chemical Realty Corp.
...(1929); New England Mutual Life Insurance Company v. Luxury Home Builders, Inc., 311 So.2d 160 (Fla. 3d DCA 1975); and Harrell v. Lombard, 122 So.2d 625 (Fla. 2d DCA 1960). The trial judge's finding of fact that there was an estoppel by waiver of the default in the mortgage is a finding of ......
-
Pearson v. Arthur, 70--976
...Phosphate Co. v. Knight, supra; Jaudon v. Equitable Life Assur. Soc. of United States, 102 Fla. 782, 136 So. 517; Harrell v. Lombard, Fla.App.1960, 122 So.2d 625; Koschorek v. Fisher, Fla.App.1962, 145 So.2d 755; Overholser v. Theroux, Fla.App.1963, 149 So.2d 582. Also where there was inten......
-
Scotti v. Maysles
...unmatured balance of a mortgage indebtedness. See Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751; Harrell v. Lombard, Fla.App.1960, 122 So.2d 625; Koschorek v. Fisher, Fla.App.1962, 145 So.2d 755, 757. Cf. Thomas v. Dickinson, 158 Fla. 819, 30 So.2d An annotation entitl......