ALVARO GORRIN, JR., APPELLANT,
v.
POKER RUN ACQUISITIONS, INC., A FLORIDA CORPORATION, ET AL., APPELLEES
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A guarantor may challenge a lender's conduct that impairs the guarantor's interests unless the guaranty agreement contains an express waiver of such duties, and general language stating the guaranty is unconditional or that the lender's acts will not affect the guaranty is insufficient to constitute an express waiver.
[1] General language in a guaranty stating that the guaranty is unconditional or that no act or omission of the lender shall affect or impair the guaranty does not constitute…
Previewing 1 of 1 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“Notwithstanding language in the guaranty agreement to the effect that the contract of guaranty would be 'unconditional,' beyond the duties imposed in the contract of guaranty, the law imposes on the creditor an obligation not to deal with the debtor, or any security for the debt, in such a manner as to harm the interest of the guarantors.”
From Warner v. Caldwell, cited for the principle that guarantor protections cannot be waived by mere unconditional language in the guaranty agreement.
The lender brought breach of personal loan guaranty actions against Gorrin. The trial court granted final summary judgments for the lender based on th…
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We reverse the entry of final summary judgments for breach of personal loan guaranties where, as here, there was not an express waiver of duties by the lender. See Warner v. Caldwell, 354 So.2d 91, 96 (Fla. 3d DCA 1977) (“Notwithstanding language in the guaranty agreement to the effect that the contract of guaranty would be ‘unconditional,’ beyond the duties imposed in the contract of guaranty, the law imposes on the creditor an obligation not to deal with the debtor, or any security for the debt, in such a manner as to harm the interest of the guarantors.”); Burton v. Linotype Co., 556 So.2d 1126, 1127 (Fla. 3d DCA 1989) (“The law in Florida is well settled that a party may not contractually thwart liability for its own fraud.”); TD Bank, N.A. v. ARS Partners Poplar Plains, LLC, No. CV095026521, 2010 WL 745757 at *4 (Conn.Super.Ct. Feb. 2, 2010) (finding language that “[n]o act or omission of any kind on the part of the [b]ank shall in any way whatsoever affect or impair this guaranty,” insufficient to constitute an express waiver of the guarantor’s rights to challenge the lender’s conduct regarding secured collateral). The waiver in this case is distinguishable from the absolute waiver discussed in Von Dunser v. Southeast First National Bank of Miami, 367 So.2d 1094, 1096 (Fla. 3d DCA 1979), where this Court found there was a waiver of the impairment of collateral defense because the guaranty specifically provided that “[n]o act or omission of any kind by the [bjank shall affect or impair this guaranty and the [bjank shall have no duties to [gjuarantors.” (emphasis added).
Reversed.
CORTIÑAS and ROTHENBERG, JJ., concur.
dissenting.
In my judgment, the controlling documents in this case are not meaningfully distinguishable from those in Von Dunser v. Southeast First National Bank of Miami, 367 So.2d 1094 (Fla. 3d DCA 1979). I *741would affirm the judgment below on the authority of that decision.
SCHWARTZ, Senior Judge,
dissenting.
In my judgment, the controlling documents in this case are not meaningfully distinguishable from those in Von Dunser v. Southeast First National Bank of Miami, 367 So. 2d 1094 (Fla. 3d DCA 1979). I would affirm the judgment below on the authority of that decision.
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Gorrin Jr. v. Poker Run Acquisitions, Inc., 237 So. 3d 1149 (Fla. 3d DCA 2018)…ment in favor of Poker run in May of 2009, three appeals have been taken to this court. Eventually an amended final judgment was entered, and affirmed on appeal, awarding Poker Run the sum of $30,948,103.23. Gorrin v. Poker Run Acquisitions, Inc., 77 So. 3d 739 (Fla. 3d DCA 2011); Gorrin v. Poker Run Acquisitions, Inc., 137 So. 3d 1102 (Fla. 3d DCA 2014); Gorrin v. Poker Run Acquisitions, Inc., 163 So. 3d 1207 (Fla. 3d DCA 2015). 3 Section 56.29(6)(a) was the version in effect in 2015. That same subsectio…
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Alvaro Gorrin, Jr. v. Poker RUN Acquisitions, Inc., 137 So. 3d 1102 (Fla. 3d DCA 2014)…of the final judgment in the fraudulent transfer case, a panel of this Court reversed and remanded the final summary judgment and judgment lien against Gorrín in the underlying (guaranty/debt collection) case. Gorrin v. Poker Run Acquisitions, Inc., 77 So. 3d 739 (Fla. 3d DCA 2011). Gorrín then moved the trial court, based on this Court’s reversal of the judgment lien, to modify its final summary judgment in the fraudulent transfer case. The trial court granted that motion in part, vacating three of eleven…
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The Bank OF NEW York Mellon v. Poker RUN Acquisitions, Inc., 208 So. 3d 199 (Fla. 3d DCA 2016)…,581,227.15, which the Bank rejected. [*201] On November 23, 2011, while the Foreclosure Case was pending, this Court reversed the final summary judgment in the Guaranty Case and remanded for a new trial.1 See Gorrin v. Poker Run Acquisitions, Inc., 77 So. 3d 739 (Fla. 3d DCA 2011). On February 10, 2012, the Bank filed a Second Amended Complaint in the Foreclosure Case re-naming the Borrower as a defendant.2 Poker Run denied the Bank’s claimed damages and asserted various affirmative defenses. The trial cou…
Authorities Cited
- State v. Rogers, 556 So. 2d 1126 (Fla. 4th DCA 1989)
- Annegret von Dunser v. Se. First Nat'l Bank OF Miami, 367 So. 2d 1094 (Fla. 3d DCA 1979)
- Warner v. Caldwell, 354 So. 2d 91 (Fla. 3d DCA 1977)