Monte v. Tipton, 92-00780
| Decision Date | 27 January 1993 |
| Docket Number | No. 92-00780,92-00780 |
| Citation | 612 So.2d 714 |
| Parties | 18 Fla. L. Weekly D398 Kathryn MONTE, Appellant, v. Arlene TIPTON, Appellee. |
| Court | Florida District Court of Appeals |
Daniel Joy of Joy & Moran, Sarasota, for appellant.
Charles T. Canady and John V. Quinlan of Lane, Trohn, Clarke, Bertrand, Vreeland & Jacobson, P.A., Lakeland, for appellee.
Kathryn Monte challenges an order granting final summary judgment in this mortgage foreclosure action. We agree with appellant's argument that the Deadman's Statute does not bar her testimony which raised the issue of waiver or failure of a condition. Consequently, a factual dispute exists, and we reverse.
Arlene Tipton filed a mortgage foreclosure action against Kathryn Monte on April 22, 1991 alleging nonpayment of the August 1, 1975 payment and all subsequent payments. Mrs. Monte answered, alleging that her obligation was conditional, that the foreclosure action was barred by laches, the statute of limitations, or was limited to those installments of the note due not more than five years prior to the date suit was filed.
The facts are largely undisputed. On June 30, 1975, Kathryn Monte and her husband, Frank Monte, executed and delivered a promissory note and a mortgage to Paul and Arlene Tipton. Frank Monte died on September 22, 1989. Paul Tipton, Kathryn Monte's father, died on February 26, 1991.
The promissory note was in the original amount of $20,000.00 and specified that the sum of $128.87, including principal and interest, was due and payable monthly commencing August 1, 1975 until the entire principal and interest was paid in full. The note contained an optional acceleration clause upon default. Mrs. Monte and her late husband failed to make any payments.
Mrs. Monte acknowledged that she signed the note and mortgage in 1976 in consideration of her father's advance to her of the real property in which her husband, father and she were then residing. Arlene Tipton never owned an interest in the house. The deed Mrs. Monte received was not executed by Mrs. Tipton.
Mrs. Monte and her husband moved to Florida after her mother's death to care for her father. Frank Monte gave up his Michigan job to make the move, it being the consensus that Paul Tipton should not be alone. Both before and after Mrs. Monte executed the note, her father told her on more than one occasion that if she was unable to afford to pay the note she would not be obliged to pay it. He knew of her financial circumstances. Mrs. Monte has only a small fixed income. Frank Monte had suffered debilitating injuries and was unemployed for a long period of time both before and after Paul Tipton conveyed the home to them. Frank Monte was eventually declared permanently disabled.
We agree with the trial court that the statute of limitations had not run. Mrs. Monte argues that section 95.11(2)(c), Florida Statutes (1991), bars the commencement of this action more than five years after the right to foreclose accrued which occurred on August 1, 1975, at the earliest. The trial court correctly concluded, citing Locke v. State Farm Fire & Casualty Co., 509 So.2d 1375 (Fla. 1st DCA 1987), that the claim was not barred by the statute of limitations. Section 95.281, Florida Statutes (1991), is the limitation statute applicable to mortgages. Smith v. Branch, 391 So.2d 797 (Fla. 2d DCA 1980). The lien of a mortgage shall terminate twenty years after the date of the mortgage if the final maturity of an obligation secured by a...
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Deutsche Bank Trust Co. v. Beauvais, 3D14–575.
...the date the lender exercises its acceleration right. Greene v. Bursey, 733 So.2d 1111, 1114–15 (Fla. 4th DCA 1999) ; Monte v. Tipton, 612 So.2d 714, 716 (Fla. 2d DCA 1993) ; see also Smith v. Fed. Deposit Ins. Corp., 61 F.3d 1552, 1561 (11th Cir.1995) ; Erwin v. Crandall, 129 Fla. 45, 175 ......
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Smith v. F.D.I.C.
...of limitations beyond period that might exist under state law) ..." --- U.S. at ----, 114 S.Ct. at 2054.17 See Monte v. Tipton, 612 So.2d 714, 716 (Fla.Dist.Ct.App.1993) (alternative holding) (mortgage foreclosure cause of action accrued, and five-year limitations period began to run, when ......
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Harmony Homes, Inc. v. US, 95-498-CIV-T-17(B).
...of limitations begins to run immediately upon default when mortgage contains an automatic acceleration clause); Monte v. Tipton, 612 So.2d 714 (Fla.2d D.C.A.1993) (holding that statute of limitations began to run when optional acceleration clause was invoked); Locke v. State Farm Fire and C......
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WRH Mortgage, Inc. v. Butler, 96-0181
...95.11 and the duration of the lien created by such mortgage is governed by section 95.281, a statute of repose). Cf. Monte v. Tipton, 612 So.2d 714 (Fla. 2d DCA 1993)(section 95.281 is the limitation statute applicable to mortgages); Alachua County v. Cheshire, 603 So.2d 1334 (Fla. 1st DCA ......
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Business & commercial cases
...of obligation is ascertainable; 20 years, if final maturity of obligation is not ascertainable. Fla. Stat. §95.281; Monte v. Tipton , 612 So. 2d 714, 716 (Fla. 2d DCA 1993); see also Madura v. BAC Home Loans Servicing, L.P. , No. 8:11-cv-2511-T-33TBM, 2012 U.S. Dist. LEXIS 100933 (M.D. Fla.......
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Chapter 3-2 Statute of Limitations
...Id. The defendant's argument was expressly based on Locke v. State Farm Fire & Cas. Co., 509 So. 2d (Fla. 1st DCA 1987); Monte v. Tipton, 612 So. 2d 714 (5th DCA 1993); Greene v. Bursey, 733 So. 2d 1111, 1114-15 (Fla. 4th DCA 1999); Reed v. Lincoln, 731 So. 2d 104 (Fla. 5th DCA 1999); and m......
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Chapter 3-2 Statute of Limitations
...Id. The defendant's argument was expressly based on Locke v. State Farm Fire & Cas. Co., 509 So. 2d (Fla. 1st DCA 1987); Monte v. Tipton, 612 So. 2d 714 (5th DCA 1993); Greene v. Bursey, 733 So. 2d 1111, 1114-15 (Fla. 4th DCA 1999); Reed v. Lincoln, 731 So. 2d 104 (Fla. 5th DCA 1999); and m......