EBONI BEAUTY ACADEMY, APPELLANT,
v.
AMSOUTH BANK OF FLORIDA, ET AL., APPELLEES
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Eboni Beauty Academy appealed summary judgments entered in favor of AmSouth Bank in a lending dispute. The court affirmed the summary judgment dismissing Eboni's complaint for breach of an oral loan agreement but reversed the summary judgment on AmSouth's counterclaim, finding genuine issues of material fact remained.
The court held that Eboni's complaint was properly dismissed because it was barred by Florida Statute § 687.0304, which requires credit agreements to be in writing. However, the summary judgment on AmSouth's counterclaim was reversed because the statute does not apply to affirmative defenses, and unresolved factual issues precluded summary judgment.
[1] A credit agreement may not be the subject of an action unless it is in writing, expresses consideration, sets forth relevant terms and conditions, and is signed by both t…
[2] A statute requiring credit agreements to be in writing does not apply to affirmative defenses.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor”
Establishes the statutory bar to Eboni's complaint based on Florida Statute § 687.0304
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEboni Beauty Academy, a non-profit cosmetology and barber training organization, had multiple discussions with AmSouth Bank regarding start-up funding…
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THOMPSON, C.J.
Eboni Beauty Academy appeals final summary judgments in favor of AmSouth Bank of Florida. We affirm in part and reverse in part.
We affirm the summary judgment with respect to Eboni’s complaint against Am-South. The essence of the complaint is that AmSouth breached an oral agreement to lend all the money Eboni might need to begin its business operations. According to the complaint, Eboni is a non-profit corporation organized to provide cosmetology and .barber training with the goal of allowing the students to escape their dependence on welfare. Eboni’s principals had various meetings at various times with AmSouth regarding Eboni’s need for start-up funds. During the course of these discussions, the parties entered a series of loan transactions. For the most part, subsequent loans were used to pay off previous loans. The remaining proceeds of the various loans were used to pay closing costs and to provide capital for Eboni. Eboni eventually signed notes for $25,000, $65,000, and $130,000. The last note Ebo-ni signed was for $90,000, a note that was supposed to consolidate the notes for $25,000 and $65,000.
Eboni alleged in its complaint that “[sjuddenly and without warning, AmSouth shut off Eboni’s access to funds and refused to authorize additional draws.” According to the affidavit of Sandra Lewis, a representative of Eboni, she had brought the loan officer a copy of an estimate for improvements to Eboni’s leasehold. The estimate, prepared in February 1996, was for $130,000. According to Lewis, at this point the loan officer represented that Am-South would provide funding for all construction costs and up to $90,000 in equipment and supply needs. Lewis testified that she entered a contract with the construction company for $150,000 (including change orders), and would not have done so absent the promise of a loan for $130,-000. Eboni’s complaint is barred by sec tion 687.0304, Florida Statutes, which provides that a debtor may not maintain an action' on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor. Because there is no writing comporting with the requirements of the statute, the court properly entered summary judgment on Eboni’s complaint.
We reverse the summary judgment in favor of AmSouth on its counterclaim against Eboni. The judgment was apparently based on section 687.0304, but the statute does not apply to affirmative defenses. See Maynard v. Central Nat’l Bank, 640 So. 2d 1212 (Fla. 5th DCA 1994) (estoppel and fraud or bad faith), Brenowitz v. Central Nat’l Bank, 597 So. 2d 340, 343 (Fla. 2d DCA 1992); Griffiths v. Barnett Bank of Naples, 603 So. 2d 690, 692 (Fla. 2d DCA 1992) (estoppel, fraud and other available affirmative defenses); Consortion Trading Intern., Ltd. v. Lowrance, 682 So. 2d 221 (Fla. 3d DCA 1996) (waiver, estoppel, bad faith). AmSouth posits other grounds for an affirmance, but in our view, at this stage of the proceedings the facts are not “so crystalized that disposition of questions of law are all that remain for a trial court to determine.” Florida Power & Light Co. v. Daniell, 591 So. 2d 284 (Fla. 5th DCA 1991), rev. denied, 599 So. 2d 1278 (Fla.1992). For example, unresolved is whether two of the promissory notes upon which AmSouth sued, for $25,000 and $65,000 respectively, were superseded by a note for $90,000, upon which AmSouth did not sue. We observe further that AmSouth should have produced the original promissory notes. See, e.g., Abbott v. Penrith, 693 So. 2d 67 (Fla. 5th DCA 1997).
AFFIRMED in part; REVERSED in part.
HARRIS and PETERSON, JJ„ concur.
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Pavolini v. Williams, 915 So. 2d 251 (Fla. 5th DCA 2005)…riting, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debt- or, It is clear that this statute does not apply to affirmative defenses. See Eboni Beauty Academy v. AmSouth Bank of Florida, 761 So. 2d 481 (Fla. 5th DCA 2000). In Maynard v. Central National Bank, 640 So. 2d 1212, 1213 (Fla. 5th DCA 1994), for example, this court held that while section 687.0304 would preclude a debtor from bringing a claim based on an oral credit agreement, it would n…
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Metro Bldg. Materials Corp. & Manuel Celaya Alberni v. Republic Nat'l Bank OF Miami, 919 So. 2d 595 (Fla. 3d DCA 2006)…on an oral credit agreement.” Maynard v. Central National Bank, 640 So. 2d 1212, 1213 (Fla. 5th DCA 1994) (citing Brenowitz v. Central National Bank, 597 So. 2d 340, 343 (Fla. 2d DCA 1992)); see also Eboni Beauty Academy v. AmSouth Bank of Florida, 761 So. 2d 481, 482 (Fla. 5th DCA 2000); Consortion Trading International, Ltd. v. Lowrance, 682 So. 2d 221, 222 (Fla. 3d DCA 1996). We conclude that Metro’s reliance on the cited cases is misplaced. In the cited cases, the bank filed suit on a past due loan and…
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Silver v. Countrywide Home Loans, Inc., 760 F. Supp. 2d 1330 (S.D. Fla. 2011)…l written terms of an otherwise unambiguous credit agreement. fla. Stat. § 687.0304(2). 13 Simply put, parol evidence cannot be admitted to create an ambiguity where none otherwise exists. See Eboni Beauty Acad. v. Am-South Bank of Fla., 761 So.2d 481, 482 (Fla. 5th DCA 2000) (plaintiffs claim that she would not have entered into contract absent oral promise for loan was barred by statute of frauds). Silver signed the Mortgage Loan that clearly outlined the terms of the loan. Since the statute of…
Authorities Cited
- Crews v. State, 603 So. 2d 690 (Fla. 2d DCA 1992)
- Brenowitz v. Cent. Nat'l Bank, 597 So. 2d 340 (Fla. 2d DCA 1992)
- Gawron v. State, 597 So. 2d 340 (Fla. 2d DCA 1992)
- Permon Vandell Thomas v. State, 682 So. 2d 221 (Fla. 3d DCA 1996)
- Fla. Power & Light Co. v. Dessaline Anne Daniell, 591 So. 2d 284 (Fla. 5th DCA 1991)
- Maynard v. Cent. Nat'l Bank, 640 So. 2d 1212 (Fla. 5th DCA 1994)
- Abbott v. Penrith, 693 So. 2d 67 (Fla. 5th DCA 1997)