Opinion
Case No. 94-2940
Opinion filed March 25, 1997.
An appeal from the Circuit Court for Hamilton County. John W. Peach, Judge.
Earl M. Barker, Jr. of Slott Barker, Jacksonville, for Appellant.
Richard B. Davis, Jr. of Davis Register, Gainesville, for Appellees.
Farm Credit of North Florida, ACA, appeals a final judgment dismissing its foreclosure action against appellees, Victor Wade Howell and Brenda F. Howell. Farm Credit argues that the trial court erred in denying the mortgagee's right to accelerate and foreclose on the basis of waiver and estoppel, in establishing the amount and terms of the note and mortgage, and in denying Farm Credit attorneys' fees in connection with the foreclosure. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
Based on the equities in the case, we conclude that the trial court did not abuse its discretion in denying acceleration and dismissing the foreclosure action. La Boutique of Beauty Academy, Inc. v. Meloy, 436 So.2d 396 (Fla. 2d DCA 1983). Further, based upon the circumstances, the trial court did not err in determining that the amount and terms of the indebtedness were as established in the Howells' reorganization plan under chapter 11 of the Bankruptcy Code confirmed on March 30, 1988. Finally, since it was not error for the trial court to deny foreclosure to Farm Credit, no error was committed in denying fees to Farm Credit.
We do find, however, that the trial court erred in establishing the monthly principal and interest payment in an amount which will not amortize the new principal balance of $112,518.77 over the life of the indebtedness as was intended in the chapter 11 reorganization. On remand, the trial court shall amend the final judgment to establish a monthly payment sufficient to amortize the new principal balance and pay interest in the unpaid balance over the life of the indebtedness.
AFFIRMED in part, REVERSED in part, and REMANDED.
MICKLE, BENTON AND VAN NORTWICK, JJ., CONCUR.