Boggs v. Farm Credit Bank of Columbia

District Court of Appeal of Florida

Boggs v. Farm Credit Bank of Columbia

545 So. 2d 516, 14 Fla. L. Weekly 1645, 1989 Fla. App. LEXIS 3722, 1989 WL 73174

District Court of Appeal of Florida·Decided July 5, 1989·No. No. 89-578·Published·Cited by 1 cases

Opinion

PER CURIAM.

Appellant, one of the defendants in a foreclosure suit below, challenges the dismissal of her Counter-claim which sought to have the trial court order that her parcel of property be sold subsequent to the sale of the property owned by her former spouse and his step-son, thereby satisfying the debt owed to the appellee and, accordingly, extinguishing the obligation as it pertained to appellant’s parcel of property. In addition, appellant sought an injunction to prevent the appellee from assigning the mortgage which encumbers her parcel.

Appellee, the plaintiff in the foreclosure action below, has now filed, in this Court, a document entitled “Motion to Dismiss Appeal of Colleen H. Boggs and Have Mandate Remanding Cause to Trial Court for Further Proceedings”.¹

Appellee’s motion states that appellee “does not desire, presently, to assign its’ mortgage ... ”. Appellee’s motion further states that appellee “recognizes that in a Foreclosure proceeding, the trial court has the discretion to determine the method and manner of sale of the property which is encumbered by its’ mortgage. It is clear that the method and manner of sale must be equitable, appropriate, and just”.

In view of the fact that the foregoing statements of appellee concede the propriety of the procedure that appellant was seeking to obtain through the filing of her Counter-claim, we deem it appropriate to treat appellee’s motion as constituting, in essence, a confession of error, thereby causing us to reverse the trial court’s Order dismissing appellant’s Counter-claim and remanding this cause for further proceedings consistent herewith.

REVERSED AND REMANDED.

Footnotes

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PER CURIAM.

Appellant, one of the defendants in a foreclosure suit below, challenges the dismissal of her Counter-claim which sought to have the trial court order that her parcel of property be sold subsequent to the sale of the property owned by her former spouse and his step-son, thereby satisfying the debt owed to the appellee and, accordingly, extinguishing the obligation as it pertained to appellant’s parcel of property. In addition, appellant sought an injunction to prevent the appellee from assigning the mortgage which encumbers her parcel.

Appellee, the plaintiff in the foreclosure action below, has now filed, in this Court, a document entitled “Motion to Dismiss Appeal of Colleen H. Boggs and Have Mandate Remanding Cause to Trial Court for Further Proceedings”.¹

Appellee’s motion states that appellee “does not desire, presently, to assign its’ mortgage ... ”. Appellee’s motion further states that appellee “recognizes that in a Foreclosure proceeding, the trial court has the discretion to determine the method and manner of sale of the property which is encumbered by its’ mortgage. It is clear that the method and manner of sale must be equitable, appropriate, and just”.

In view of the fact that the foregoing statements of appellee concede the propriety of the procedure that appellant was seeking to obtain through the filing of her Counter-claim, we deem it appropriate to treat appellee’s motion as constituting, in essence, a confession of error, thereby causing us to reverse the trial court’s Order dismissing appellant’s Counter-claim and remanding this cause for further proceedings consistent herewith.

REVERSED AND REMANDED.

Footnotes

Boggs v. Farm Credit Bank of Columbia, 545 So. 2d 516, 14 Fla. L. Weekly 1645, 1989 Fla. App. LEXIS 3722, 1989 WL 73174 (Fla. Ct. App. 1989).

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Opinion

Footnotes

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