Locke v. State Farm Fire and Cas. Co.
| Decision Date | 23 July 1987 |
| Docket Number | No. BO-255,BO-255 |
| Parties | 12 Fla. L. Weekly 1774 Cecil E. LOCKE and his Wife, Mildred M. Locke, Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Bill A. Corbin, Blountstown, for appellants.
Jack G. Williams, Panama City, for appellee.
This is an appeal from a summary judgment in favor of the appellee/mortgagee in a foreclosure suit. The appellants/mortgagors also appeal an earlier order denying their motion to dismiss. 1 Finding that genuine issues of material fact remain, we reverse the summary judgment, but affirm the denial of the motion to dismiss.
Appellee's foreclosure complaint alleged that appellants defaulted on the note and mortgage by failing to pay the same according to the terms thereof, that appellants owe principal and interest from October 28, 1980, and that "plaintiff declares the full amount payable." The complaint was filed January 10, 1986.
Appellants filed a motion to dismiss based on the running of the statute of limitations. The motion was denied. Appellants then filed an answer generally denying most of the allegations and pleading the following affirmative defenses: 1) estoppel; 2) laches; 3) res judicata; 4) statute of limitations; and 5) waiver. Appellee filed no responsive pleading. Appellee filed a motion for summary judgment, an affidavit in proof of amount due, and an affidavit as to attorney's fees. The motion was granted after hearing. This appeal followed.
Appellee has filed herein a "Confession of Error" in which appellee admits error "in that certain procedural requirements including the awarding of attorney's fees were in error." From the briefs and record herein, it is apparent that such errors include an error in the judgment's legal description of the property, a variance between the amount due according to the plaintiff's affidavits and the amount provided in the judgment, and error in the procedure followed in the awarding of plaintiff's attorney's fees.
In addition to the above errors admitted by appellee, we reverse the order granting summary judgment because we agree with appellants that the motion for summary judgment did not meet the minimum requirements of Fla.R.Civ.P. 1.510, which provides in pertinent part:
(c) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least twenty days before the time fixed for the hearing. * * * The appellee's motion stated only in general terms that no material issues of fact or law existed and that appellee was entitled to the relief requested. Such a motion is insufficient to place the nonmoving party on notice of the issues of fact or law which will be argued at the hearing. See Finn v. Lee County, 479 So.2d 246 (Fla. 2d DCA 1985); Epperson v. Dixie Ins. Co., 461 So.2d 172 (Fla. 1st DCA 1984); City of Brooksville v. Hernando County, 424 So.2d 846 (Fla. 5th DCA 1983). By appropriate objection, appellants preserved their right to complain on appeal of the motion's deficiency.
Appellants also...
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Deutsche Bank Trust Co. v. Beauvais, 3D14–575.
...Does Not DoSingleton does not overrule Conner v. Coggins, 349 So.2d 780 (Fla. 1st DCA 1977), Locke v. State Farm Fire & Casualty Co., 509 So.2d 1375 (Fla. 1st DCA 1987), or Monte v. Tipton, 612 So.2d 714 (Fla. 2d DCA 1993). Singleton does not stand for the proposition that a lender's accele......
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Smith v. F.D.I.C.
...accrued, and five-year limitations period began to run, when optional acceleration clause was invoked); Locke v. State Farm Fire & Cas. Co., 509 So.2d 1375, 1377 (Fla.Dist.Ct.App.1987) (statute of limitations on mortgage foreclosure began to run at time of acceleration rather than at time o......
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Lubonty v. R. Kenneth Barnard, Chapter 7 Tr., Als Hibiscus, LLC
...of limitations does not begin to run until the last payment of the mortgage is due[.]") (citing Locke v. State Farm Fire & Casualty Co., 509 So.2d 1375, 1377 (Fla. Dist. Ct. App. 1987)); see also Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575 (KEM), 2014 WL 7156961, at *3 (Fla. ......
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Deutsche Bank Trust Co. v. Beauvais, 3D14-575
...and interest secured by the mortgage due and payable"). See also Liles v. Savage, 163 So. 399 (Fla. 1935); Locke v. State Farm Fire and Cas. Co., 509 So. 2d 1375 (Fla. 1st DCA 1987). 5. The Singleton Court cited to Olympia Mortg. Corp. v. Pugh, 774 So. 2d 863 (Fla. 4th DCA 2000), in which t......
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Chapter 12-1 Introduction
...occurs when a foreclosure complaint is filed declaring all amounts due and payable. See Locke v. State Farm Fire and Casualty Co., 509 So. 2d 1375 (Fla. 1st DCA 1987) (holding that the mortgagee had not enforced the optional acceleration clause in the mortgage until it filed its foreclosure......