
    Jim WALSH, Appellant, v. Elhanon COMBS and Bessie Combs, his wife, Appellees.
    No. 70-635.
    District Court of Appeal of Florida, Second District.
    May 14, 1971.
    Rehearing Denied Dec. 10, 1971.
    Sorokoty, Monaco, Cervelli & Thornes, B. Clarke Nichols of Carroll, Vega, Brown & Nichols, and Robert R. Hagaman, Naples, for appellant.
    James W. Moore and Murphy C. Combs, Naples, for appellees.
   MANN, Judge.

On November 17, 1969, Walsh assumed a first mortgage with a balance of about $15,000, payable to Naples Federal Savings and Loan Association, gave the Combs a second mortgage for $100,000 and a few thousand in cash. An addendum to their contract provided that the sellers would continue to make payments on the first mortgage. Walsh says that he understood this to mean that this arrangement would continue after closing and that he should just reimburse Combs. Combs says this covered the months before closing and that Walsh should thereafter have paid $169 monthly to Naples Federal. Anyhow, Walsh didn’t make the payment due December 10. A lady from Naples Federal called Combs, who said he’d get in touch with Walsh. Combs said he left three telephone messages, but Walsh never returned his call. Walsh didn’t pay on January 10, either. On January 12, Combs paid Naples Federal $338, and on January 15 declared the second mortgage accelerated and filed this action to foreclose.

The trial court found that the default was one which jeopardized the security of the second mortgage, and stated that the actions of the plaintiffs did not comport with the Court’s ideas of fairness. Then, “with some repugnance”, judgment against Walsh in the amount of $105,433.65, plus attorneys’ fees of $5,000, was entered. This appeal understandably ensued.

The evidence that Combs’ security was in jeopardy is slight and consists of a statement from the lady at Naples Federal that the Association considered the loan in default and, unless it were paid, would take some action to collect. There is no evidence that Naples Federal was uneasy about its security on its $15,000 lien against a property worth more than $100,-000. There is no evidence that Walsh received any notice from either Naples Federal or Combs that he was in default. Of course he should have known it, and should have paid either Naples Federal or Combs. But we find nothing in this record which makes conscionable the act of filing foreclosure without ascertaining that there was some real possibility that Naples Federal would initiate foreclosure on the first mortgage and without a bona fide effort to find Walsh and secure his compliance. There is no registered or certified letter, nothing except Combs’ casual testimony of trying without success to telephone Walsh. Of course Walsh is obligated to repay Combs $338 plus interest, plus other amounts Combs may have paid since filing this action.

We need not discuss whether $5,-000 is, as Combs’ cross-appeal contends, inadequate as a fee in this case. The present record will not support a fee in excess of that appropriate to the collection of $338.

Reversed and remanded for further proceedings consistent with Althouse v. Ken-ney, Fla.App.2d 1966, 182 So.2d 270.

PIERCE, C. J., and LILES, J., concur.

ON PETITION FOR REHEARING

MANN, Judge.

We deny the petition for rehearing but clarify our opinion so that it will not be thought at variance from Corlett v. Wood, 1921, 81 Fla. 510, 88 So. 268, and Campbell v. Werner, Fla.App.3d 1970, 232 So.2d 252. Corlett v. Wood proves merely that a complaint need not allege notice to the mortgagor before suit is brought. That is perfectly sound pleading, and we have not intended to say that there must be either an allegation in the complaint or, under normal circumstances, proof in the record of notice before a mortgage is enforced. This case is one in which the affirmative defense is pleaded that acceleration and foreclosure would be inequitable under the circumstances of this case.

Nor do we think our holding inconsistent with Judge Charles Carroll’s excellent opinion in Campbell v. Werner. Compare, for example, Lieberbaum v. Surfcomber Hotel Corp., Fla.App. 1960, 122 So.2d 28, in which the Third District affirmed the denial of foreclosure on a finding that acceleration was unconscionable.

The confusion of the appellee in this case results from the common error of taking facts stated in an opinion as having necessarily some operative legal signifi-canee. It is not necessary to notify mortgagor that he must live up to his agreement, and there are circumstances in which acceleration of an obligation and foreclosure of a mortgage are unconscionable. The facts of this case are such that the trial judge thought that the obligation should not have accelerated and foreclosure should not be granted. Our opinion should be taken as related to the peculiar circumstances of this case in which there is not the slightest evidence of an immediate intention on the part of the first mortgagee to foreclose. The second mortgagee, by undertaking to notify Walsh that he was delinquent, could be found to have acted unconscionably when, after a feeble effort to communicate with Walsh, the second mortgagee paid the two monthly installments apparently without being placed under serious pressure to do so. A harmonious reading of all the authorities cited will show that these cases are not in conflict.

Petition for rehearing denied.

PIERCE, C. J., and LILES, J., concur.  