Usury under Florida law is largely a matter of intent. It is not fully determined by the fact that the lender actually received more than law permits but by the existence of a corrupt purpose in the lender’s mind to charge more than the legal interest permitted by law for the money lent. In cases… Continue Reading
Category Archives: Banking Operations
Subscribe to Banking Operations RSS FeedUsury in Florida; Generally
Posted in Banking OperationsUnder Florida law, usury is defined as the willful and knowing charge or receipt of interest in excess of 18% per year for credit transactions involving less than $500,000 or between 25% and 45% per year in a credit transaction involving more than $500,000. The usurious nature of a contract is determined from the date… Continue Reading
Florida Foreclosure Sales: Developing a Maximum Bid
Posted in Banking Operations, Debt and Judgment CollectionA secured creditor who obtains a foreclosure judgment has the ability to “credit bid” at the foreclosure sale up to the full amount indicated in the judgment, without being required to deposit any funds with the Clerk of the Court. After the entry of the foreclosure judgment and prior to the scheduled sale, a creditor… Continue Reading
Fair Debt Collection Practices Act (FDCPA): Applicable to Institutions that Acquire Loans from the FDIC?
Posted in Banking Operations, Debt and Judgment CollectionIn the wake of bank failures, some institutions have acquired failed bank assets, including loans, from the Federal Deposit Insurance Corporation. Such institutions should exercise caution when collecting on consumer loans that were in default at the time they were acquired, because the institution may be viewed by courts as a “debt collector” for purposes… Continue Reading
Avoid Potential Lender Liability for Setting Off Against an Account
Posted in Banking Operations, Debt and Judgment CollectionA lender’s ability to set off against a borrower’s account can be a valuable tool for lenders, but care must be exercised to safeguard against potential liability. If setoff is exercised against a checking account, there is a likelihood that checks drawn on the account prior to the setoff (or prior to notice to the… Continue Reading
A Lender’s Right to Set Off Against an Account
Posted in Banking Operations, Debt and Judgment CollectionUnder Florida common law, a bank may set off the balance of an obligation owed to it by its depositor (e.g., a loan) against a general deposit made by the depositor (e.g., the balance of a checking or savings account) which has been accepted by the bank in good faith and in the ordinary course… Continue Reading
A New Case Helps Lenders Avoid Foreclosure Delays Caused by Guarantors
Posted in Banking Operations, Debt and Judgment Collection, Special Assets LitigationIn many foreclosure cases, the strategy of the borrower is simply to delay the case. Typically, the borrower hopes that delay will allow time to either work out a settlement with the lender or find a third party buyer for the mortgage property. In commercial foreclosures, the foreclosing lender typically includes as defendants the guarantors… Continue Reading
Creditors Who Want to Execute on a Money Judgment Need Not Foreclose First
Posted in Banking Operations, Special Assets LitigationIn a typical foreclosure action in Florida, a creditor forecloses the real property first, the court determines the fair market value of the property as of the date of the foreclosure sale (usually through a deficiency hearing under Fla. Stat. §702.06), and then the creditor pursues a money judgment under a breach of note or… Continue Reading
How Does a Bank’s Claim For Set-Off Fare in the Face of a Garnishment?
Posted in Banking Operations, Debt and Judgment Collection, Special Assets LitigationIn Florida, it is well established that a bank has a common law right of set-off against funds held in a depositor’s account if the depositor has defaulted under a loan from the bank. This allows the bank the option to apply the funds in the depositor’s account as needed to pay the outstanding obligation… Continue Reading