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Brief Fact Summary. The Lees, (Appellees), failed to make two loan payments on their second mortgage. Old Republic Insurance Co., (Appellant), the mortgage holder, notified Appellees that the mortgage was being declared in default and the unpaid balance was being accelerated. Appellant filed suit to foreclose but the court granted Appellees motion to reinstate.
Synopsis of Rule of Law. Once the mortgage holder has exercised his option to accelerate, the right of the mortgagor to tender only the arrears is terminated.
Issue. Whether the mortgagor had the right to prevent the mortgage holder from exercising his option to accelerate by tendering the arrears due.
Held. No. This right terminates once the mortgage holder has exercised his option to accelerate.
Specifically, courts will bar acceleration and foreclosure as follows: Foreclosure on an accelerated basis may be denied when the right to accelerate has been waived or the mortgagee estopped to assert it, because of conduct of the mortgagee from which the mortgagor (or owner holding subject to a mortgage) reasonably could assume that the mortgagee, for or upon a certain default, would not elect to declare the full mortgage indebtedness to be due and payable or foreclose therefore; or where the mortgagee failed to perform some duty upon which the exercise of his right to accelerate was conditioned; or where the mortgagor tenders payment of defaulted items, after the default but before notice of the mortgagee's election to accelerate has been given (by actual notice or by filing suit to foreclose for the full amount of the mortgage indebtedness) or where there was intent to make timely payment, and it was attempted, or steps taken to accomplish it, but nevertheless the payment was not made due to a misunderstanding or excusable neglect, coupled with some conduct of the mortgagee which in a measure contributed to the failure to pay when due or within the grace period.
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