Bowe v. US Bank Nat'l Ass'n
Bowe v. US Bank Nat'l Ass'n
Opinion of the Court
The mortgagee, US Bank National Association, as Successor Trustee to Bank of America, National Association, Successor by Merger to Lasalle Bank National Association, as Trustee for Thornburg Mortgage, etc., ("the Trustee"), cross-appeals a final judgment that permitted it to foreclose on property owned by the mortgagor, Carol Ann Bowe, but only as to amounts unpaid through October 1, 2013, rather than the full accelerated amount due on the mortgage. The Trustee argues that the trial court erroneously found that it was equitably estopped from exercising its right to accelerate based on its purported failure to verbally provide a mortgage reinstatement figure after Bowe's default. We agree.
This court has observed that prior to a mortgage holder's election of the right to accelerate upon the occurrence of a default, a mortgagor may tender the arrears due and thereby preclude acceleration. Old Republic Ins. Co. v. Lee ,
In the instant case, the undisputed evidence presented at trial was that Bowe failed to make her October 1, 2009 mortgage payment. On November 15, 2009, Bowe was sent a default letter advising her that her loan was in default and, if not brought current, the Trustee would exercise its right to accelerate payment of the loan balance. On January 20, 2010, the Trustee gave notice that it had exercised its right to accelerate. Notably, Bowe did not make or tender any additional payment prior to the notice of acceleration. Bowe's oral representations of her ability and willingness to bring the mortgage current (made in early January 2010) did not constitute a legal tender of payment. See Jacobs v. Auto. Repair Ctr., Inc. ,
The effect of the final judgment entered below was to deny the Trustee's right to accelerate the mortgage indebtedness as *1191contracted for in the note and mortgage. See Campbell v. Werner ,
On remand, the trial court is directed to enter an amended final judgment of foreclosure for the entire accelerated amount of the note.
REVERSED and REMANDED.
WALLIS and HARRIS, JJ., concur.
Our disposition of the cross-appeal renders moot the issue raised on appeal by Bowe.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.