Rashid v. Newberry Federal Savings & Loan Ass'n

District Court of Appeal of Florida

Rashid v. Newberry Federal Savings & Loan Ass'n

526 So. 2d 772, 13 Fla. L. Weekly 1418, 1988 Fla. App. LEXIS 2427, 1988 WL 59457

CourtDistrict Court of Appeal of Florida

DecidedJune 14, 1988

DocketNo. 87-2849

StatusPublished

This text of 526 So. 2d 772 (Rashid v. Newberry Federal Savings & Loan Ass'n) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rashid v. Newberry Federal Savings & Loan Ass'n, 526 So. 2d 772, 13 Fla. L. Weekly 1418, 1988 Fla. App. LEXIS 2427, 1988 WL 59457 (Fla. Ct. App. 1988).

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Opinion

PER CURIAM.

In Rashid v. Newberry Federal Savings & Loan Ass’n, 502 So.2d 1316 (Fla. 3d DCA 1987),. we reversed a final summary judgment in favor of the mortgagee because of its failure to give the required notice of default to the mortgagor prior to the institution of the mortgage foreclosure proceeding. Implicit in our opinion was the requirement that upon remand the proceeding be dismissed. In an unpublished order of this court, which accompanied the opinion, the successful mortgagor was awarded appellate counsel fees as provided for by the underlying instrument. After our mandate was lodged in the lower court, the mortgagor filed a motion for summary judgment which we regard as the functional equivalent of a motion to enforce the mandate and dismiss the proceeding. That motion was met by the mortgagee’s motion for voluntary dismissal, which motion was heard and granted by the trial court. The motion to enforce the mandate was not determined by the trial court because it was apparently considered moot. The entry of the order granting the mortgagee’s voluntary dismissal was error because it deprived the successful mortgagor of the benefit and protection of our mandate. See Nazarro v. Moksel, 483 So.2d 884 (Fla. 3d DCA 1987).

Reversed with directions.

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PER CURIAM.

In Rashid v. Newberry Federal Savings & Loan Ass’n, 502 So.2d 1316 (Fla. 3d DCA 1987),. we reversed a final summary judgment in favor of the mortgagee because of its failure to give the required notice of default to the mortgagor prior to the institution of the mortgage foreclosure proceeding. Implicit in our opinion was the requirement that upon remand the proceeding be dismissed. In an unpublished order of this court, which accompanied the opinion, the successful mortgagor was awarded appellate counsel fees as provided for by the underlying instrument. After our mandate was lodged in the lower court, the mortgagor filed a motion for summary judgment which we regard as the functional equivalent of a motion to enforce the mandate and dismiss the proceeding. That motion was met by the mortgagee’s motion for voluntary dismissal, which motion was heard and granted by the trial court. The motion to enforce the mandate was not determined by the trial court because it was apparently considered moot. The entry of the order granting the mortgagee’s voluntary dismissal was error because it deprived the successful mortgagor of the benefit and protection of our mandate. See Nazarro v. Moksel, 483 So.2d 884 (Fla. 3d DCA 1987).

Reversed with directions.

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Bluebook (online)

526 So. 2d 772, 13 Fla. L. Weekly 1418, 1988 Fla. App. LEXIS 2427, 1988 WL 59457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rashid-v-newberry-federal-savings-loan-assn-fladistctapp-1988.

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