Summary
applying the general rule enunciated in Florida Nat'l
Summary of this case from Feinstein v. New Bethel Miss. BaptistOpinion
Case No. 97-0132
Opinion filed February 4, 1998 JANUARY TERM 1998
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Moses Baker, Jr., Judge; L.T. Case No. CL 96-1729 AD.
Charles C. Chillingworth and Jeanne O. Conway of Chillingworth Conway, P.A., West Palm Beach, for appellant.
William L. Rogers of Barrett Rogers, and David M. Goldstein of David M. Goldstein, P.A., Miami, for appellee.
We affirm the final judgment of foreclosure except for the inclusion of the $138,031.45 prepayment penalty, which we reverse and remand. The general rule is that, unless otherwise specifically provided for in the note, the lender cannot upon the lender's acceleration also collect the prepayment penalty.Florida Nat'l Bank of Miami v. BankAtlantic, 589 So.2d 255, 258 (Fla. 1991). The court in Florida National created a limited exception to the general rule applicable under special circumstances including an intentional default by the borrower. Id. at 259. Here, neither the pleadings nor proof establish the applicability of the exception.
GLICKSTEIN, DELL and POLEN, JJ., concur.