Rashid v. Newberry Federal Savings & Loan Ass'n

PER CURIAM. In Rashid v. Newberry Federal Savings & Loan Ass’n, 502 So.2d 1316 (Fla. 3d DCA 1987),. we reversed a final summary judgment in favor of the mortgagee because of its failure to give the required notice of default to the mortgagor prior to the institution of the mortgage foreclosure proceeding. Implicit in our opinion was the requirement that upon remand the proceeding be dismissed. In an unpublished order of this court, which accompanied the opinion, the successful mortgagor was awarded appellate counsel fees as provided for by the underlying instrument. After our mandate was lodged in the lower court, the mortgagor filed a motion for summary judgment which we regard as the functional equivalent of a motion to enforce the mandate and dismiss the proceeding. That motion was met by the mortgagee’s motion for voluntary dismissal, which motion was heard and granted by the trial court. The motion to enforce the mandate was not determined by the trial court because it was apparently considered moot. The entry of the order granting the mortgagee’s voluntary dismissal was error because it deprived the successful mortgagor of the benefit and protection of our mandate. See Nazarro v. Moksel, 483 So.2d 884 (Fla. 3d DCA 1987). Reversed with directions.