Banking & Financial Services Industry Legal Blog

Florida’s Banking Statute of Frauds was enacted in order to curb a 1980’s trend of increasing lender liability lawsuits. The enactment of this statute has made it difficult for Plaintiff’s to maintain tort based claims that might otherwise flow from the written loan documents. Typically, such claims involve oral promises pertaining to breach of an oral commitment to lend, breach of an oral agreement to refinance an existing loan, breach of an oral agreement to forbear from enforcing contractual remedies or breach of an oral agreement to take certain actions in connection with the underlying loan. By requiring that loan documents be in writing for a borrower to sue a lender on those types of claims, the Banking Statute of Frauds prevents borrowers from pursuing claims based upon oral representations or understandings. The effect of the Banking Statute of Frauds is to bar tort claims that otherwise may have been colorable under common law.

In order to state a cause of action in Florida for breach of fiduciary duty, there must exist a fiduciary duty, a breach thereof, and resulting damages. Gracey v. Eaker, 837 So. 2d 348,353 (Fla. 2002). In Doe v. Evans, 814 So.2d 370 (Fla. 2002), a fiduciary relationship was characterized as follows:

Prior to 2005, bankruptcy courts across the nation were plagued by fraudulent bankruptcy filings by individuals who just wanted to get rid of their debt, but who did not necessarily qualify for such relief.  To deal with the overwhelming number of abusive bankruptcy actions, Congress passed into law an act […]

The Small Business Administration (“SBA”) has been providing small businesses with loans since its creation in 1953.  Its mission statement is “…to aid, counsel, assist and protect the interests of small business concerns, to preserve free competitive enterprise and to maintain and strengthen the overall economy of our nation.”  It […]

By Austin Calhoun, J.D. 2013

It takes on average 600 days for a party to litigate a foreclosure through trial in Florida. Successful summary judgment motion practice may squeeze that time down to as little as 180 days. Even better, under the proper conditions, a diligent plaintiff can shorten foreclosure time down to less than 60 days by properly utilizing Florida Statute 702.10. If you’re interested in bypassing the foreclosure log-jam to obtain a speedy foreclosure – read on.

By: Harry M. Wilson, IV, Esq. and James D. Stone, III

Sometimes, either intentionally or inadvertently, a debtor will fail to list a creditor or schedule a debt in a bankruptcy proceeding. When this happens the creditor can often be unaware of the proceedings and, as a result, miss the deadline for filing a proof of claim. However, a debt owed to a creditor who had neither notice nor knowledge of the bankruptcy in time to file a proof of claim or to file a complaint for determination of dischargeability of the debt under section 523 of the Bankruptcy Code will not be discharged. . . click the title to read more. . .

By: Harry M. Wilson, IV, Esq. and James D. Stone, III

While obtaining a judgment against a debtor that owes you money is an important victory, it is often not the final battle one fights against the debtor. Just as there are time limitations on your ability to file an action against a debtor, there are also time limitations to enforce a money judgment in Florida. While the general rule is that the life of a money judgment is 20 years in the state of Florida it is important to know the procedures for using the full 20 years.

As our firm represents many materials suppliers and site work contractors/subcontractors, we are often presented with payment issues that require us to pursue unconventional avenues of recovery to obtain payment. One area in which we have had a good success is through making claims on Agricultural Bonds through the Florida Department of Agriculture. According to Florida law, any person who is engaged within the state in the business of buying, receiving, soliciting, handling, or negotiating agricultural products from or for Florida producers, or their agents, must be licensed and bonded. The Bureau of Agricultural Dealer’s Licenses is responsible for the licensing of dealers in agricultural products. Per the Department of Agriculture, “Florida License and Bond Law is intended to facilitate the marketing of Florida agricultural products by encouraging a better understanding between buyers and sellers and by providing a marketplace that is relatively free of unfair trading practices and defaults. The purpose of the law is to help assure that the producers of products covered by the law receive proper accounting and payment for their products.” If you do business with nurseries, landscaping companies, or virtually anyone who deals in green goods and you like to get paid the money you are rightfully owed, this post should be required reading.

By Harry M. Wilson, IV, Esq.

Documentary stamp tax is levied on documents as provided under Chapter 201, Florida Statutes. Documents subject to the tax include deeds, bonds, notes and written obligations to pay money and mortgages, liens, and other evidences of indebtedness. The rate of the tax differs depending on the kind of document subject to the tax.

As the economy continues to tank and dead beat debtors begin to pass more and more bad checks, I have found it to be a prudent time to revisit the laws pertaining to writing bad checks in Florida. In general, the term ‘check’ means a draft, other than a documentary draft, payable on demand and drawn on a bank or a cashier’s check or teller’s check. An instrument may be a check even though it is described by another term, such as ‘money order.’ Fla. Stat. § 673.1041(6). A ‘draft,’ in reference to a check, is a three-party instrument by which the drawer order the drawee to pay money to the payee, and the drawee is a bank.

Fla. Stat. §68.065 (for civil actions to collect worthless checks, drafts, or orders of payment) allows for recovery of treble damages, service charges, attorneys’ fees, and costs if its provisions are not followed. Before litigation is initiated, the form of notice set forth in Fla. Stat. §68.065 must be delivered by certified or registered mail, or by first-class mail, evidenced by an affidavit of service of mail, to the maker or drawer of the check, draft, or order of payment. If notice is properly provided, the maker or drawer will be liable to the payee for, in addition to the amount owing on the check, damages of triple the amount owing, a statutory service charge based on the check amount, reasonable attorneys’ fees, and court costs. If the notice is sent via certified mail and the recipient refuses to claim the notice or sign the postal receipt, the statutory notice requirement is satisfied.