TBOM Mortgage Holding, LLC v. Brown

District Court of Appeal of Florida

TBOM Mortgage Holding, LLC v. Brown

59 So. 3d 322, 2011 Fla. App. LEXIS 5561, 2011 WL 1485971

CourtDistrict Court of Appeal of Florida

DecidedApril 20, 2011

DocketNo. 3D11-229

StatusPublished

Cited by4 cases

This text of 59 So. 3d 322 (TBOM Mortgage Holding, LLC v. Brown) 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

TBOM Mortgage Holding, LLC v. Brown, 59 So. 3d 322, 2011 Fla. App. LEXIS 5561, 2011 WL 1485971 (Fla. Ct. App. 2011).

Pincite

Opinions

SCHWARTZ, Senior Judge.

Although the plaintiff mortgagee in this “routine” home foreclosure case clearly established its right to a default against the mortgagor, the trial court refused to enter one, giving only what must be called the spurious reason that the nonmilitary affidavit was in some unspecified (because non-existent) way “insufficient.” In fact and in law, the affidavit, which was in the universally accepted form, and was supported by evidence which clearly established that the defendant, who was personally served at his home in Miami-Dade County, was not in the military service, was legally impeccable. Since it is established and we repeat that the trial court is not free to refuse to follow the law because of some personal disinclination or otherwise, see Republic Federal Bank, N.A. v. Doyle, 19 So.3d 1053, 1054 (Fla. 3d DCA 2009), and that it is, therefore, mandatorily required to enter the default sought in this case, see Fla. R. Civ. P. 1.500(b); Comcoa, Inc. v. Coe, 587 So.2d 474, 477 (Fla. 3d DCA 1991) (granting mandamus when the trial court impermissibly refused to issue writ required by law; “in a statute such as this one, the term ‘may,’ which indeed ordinarily implies the exercise of choice or discretion, simply does not do so, and must, in contrast, be given a definition equivalent to the mandatory ‘shall.’ ”), it is ordered that it expeditiously do so.

Mandamus granted.¹

GERSTEN, J., concurs.

Free access — add to your briefcase to read the full text and ask questions with AI

SCHWARTZ, Senior Judge.

Although the plaintiff mortgagee in this “routine” home foreclosure case clearly established its right to a default against the mortgagor, the trial court refused to enter one, giving only what must be called the spurious reason that the nonmilitary affidavit was in some unspecified (because non-existent) way “insufficient.” In fact and in law, the affidavit, which was in the universally accepted form, and was supported by evidence which clearly established that the defendant, who was personally served at his home in Miami-Dade County, was not in the military service, was legally impeccable. Since it is established and we repeat that the trial court is not free to refuse to follow the law because of some personal disinclination or otherwise, see Republic Federal Bank, N.A. v. Doyle, 19 So.3d 1053, 1054 (Fla. 3d DCA 2009), and that it is, therefore, mandatorily required to enter the default sought in this case, see Fla. R. Civ. P. 1.500(b); Comcoa, Inc. v. Coe, 587 So.2d 474, 477 (Fla. 3d DCA 1991) (granting mandamus when the trial court impermissibly refused to issue writ required by law; “in a statute such as this one, the term ‘may,’ which indeed ordinarily implies the exercise of choice or discretion, simply does not do so, and must, in contrast, be given a definition equivalent to the mandatory ‘shall.’ ”), it is ordered that it expeditiously do so.

Mandamus granted.¹

GERSTEN, J., concurs.

Cite This Page — Counsel Stack

Bluebook (online)

59 So. 3d 322, 2011 Fla. App. LEXIS 5561, 2011 WL 1485971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tbom-mortgage-holding-llc-v-brown-fladistctapp-2011.

Opinions

Related

Cite This Page — Counsel Stack