THOMAS F. PEPE, APPELLANT,
v.
JOHN SHEPHERD, LISA GREENBAUM AND FACES, INC., A FLORIDA CORPORATION, APPELLEES
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Florida appellate court reversed summary judgment for defendants, holding that an assignment of a portion of a promissory note does not require written consent from obligors absent a statutory or contractual requirement, and that the statute of frauds does not bar oral consent to such an assignment.
An assignment of a portion of a promissory note is enforceable against obligors based on oral consent without written agreement, as no Florida statute or contract requires written consent and the obligors' consent to pay part of their own debt is not subject to the statute of frauds.
[1] An assignment of a portion of a promissory note does not require written consent from obligors absent a statutory or contractual requirement to that effect.
[2] The consent of obligors to an assignment of part of their own debt is not a promise to answer for the debt of another and is therefore not subject to the statute of fraud…
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Join FLexlaw to unlock all legal intelligencePepe sought to enforce an assignment of a portion of a promissory note against Shepherd, Greenbaum, and Faces, Inc., but the trial court granted summa…
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PER CURIAM.
The sole bases upon which the trial court entered summary judgment for the defendants-appellees were (1) its conclusion that an assignment of a portion of a promissory note is enforceable against the obligors only if the obligors consent in writing and (2) the related but separate conclusion that the ob-ligors’ oral consent, if any, to the splitting of the indebtedness is barred by the statute of frauds.
First, it is axiomatic that no agreement need be in writing unless required by statute or contract. Here there was no contract between the parties that required that a partial assignment of the indebtedness be agreed to in writing by the obligors; and no Florida statute imposes such a requirement.
Second, contrary to the appellees’ contention, the consent of the obligors is not a “promise to answer for the debt ... of another person,” an action upon which is barred by the statute of frauds if not in writing, see § 725.01 Fla.Stat. (1979), but instead is merely the obligors’ consent to pay part of their own debt to another. Therefore, since a writing was not required and there remains a genuine issue of material fact whether the obligors orally consented to the assignment, the summary judgment is reversed and the cause remanded for further proceedings.
Reversed and remanded.
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Fredy D. Osorio v. State Farm Bank, 746 F.3d 1242 (11th Cir. 2014)…0,822 (1991). From this statement, one can infer that Congress intended for the TCPA to incorporate the common-law meaning of consent, including its revocation. Common-law notions of consent generally allow oral revocation. See Pepe v. Shepherd, 422 So. 2d 910, 911 (Fla.Dist. Ct.App.1982) (“[I]t is axiomatic that no agreement need be in writing unless required by statute or contract.”). Indeed, counsel for State Farm conceded at oral argument that “the common law would allow an oral revocation.” We the…