JULIAN LEVIN, APPELLANT,
v.
MRS. JANE FISHER AND MR. JOHN W. JOHNSON, APPELLEES
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Levin sued Fisher and Johnson for common-law fraud regarding a purported joint venture investment, but the defendants counterclaimed under Florida's usury statute for recovery of repaid amounts plus double interest. The court affirmed summary judgment dismissing Levin's fraud complaint and granting judgment on the usury counterclaim.
The court affirmed summary judgment for the defendants, holding that the transaction was clearly usurious as a matter of law and entitled the defendants to judgment based on the pleadings alone. The defendants were entitled to recover repaid amounts plus double the usurious interest charged.
“The transaction set forth in the complaint was clearly usurious, and the counterclaimant was entitled to his judgment as a matter of law on the basis of this pleading alone.”
Establishes that the court found usury proven from the complaint's own allegations, entitling defendants to judgment as a matter of law.
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Join FLexlaw to unlock all legal intelligenceLevin advanced $3,000 in what he believed was a joint venture, agreeing to accept $600 in 'profit' for the loan. He received $1,300 in return and a no…
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The plaintiff, who was also cross-defendant, appeals a summary final judgment which dismissed his complaint and granted judgment on the counterclaim.
The appellant raises four points on appeal. The first urges that there was a genuine issue of material fact. The second and third set forth that the defendants, cross-plaintiffs, were not entitled to summary judgment because of the failure to submit to discovery. The fourth point maintains that since there were neither depositions nor affidavits in the file, defendants did not make a prima facie defense or case upon their counterclaim.
Plaintiff filed a complaint alleging an action for common-law fraud. The complaint set forth that the plaintiff had advanced the sum of $3,000 on what he considered a joint venture, and that he agreed to accept “profit” in the amount of $600 for the $3,000 loan. It was stated that thereafter he received a return of $1,300. There was attached to his complaint a note for $3,600 dated May 2, 1961, calling for six payments of $600 each as follows: May 24, May 31, June 7, June 14, June 21 and June 28, all in 1961.
Defendants’ answer admitted the transaction and alleged that it was a loan calling for interest in excess of 25%; and pursuant to the applicable sections of Chapter 687 of the Florida Statutes, F.S.A., counterclaimed for the .return of the amount repaid, plus double the interest usuriously charged. The plaintiff answered the counterclaim with a general denial and upon the hearing on defendants’ motion for summary judgment, the judgment appealed was entered.
Plaintiff-appellant takes the position that he entered into a business deal whereby he was to get a fixed and guaranteed return upon his investment, and he accepted a note for the full amount payable within two months. The transaction set forth in the complaint was clearly usurious, and the counterclaimant was entitled to his judgment as a matter of law on the basis of this pleading alone.1 See Griffin v. Kelly, Fla.1957, 92 So.2d 515.
Affirmed.
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Ellis Nat'l Bank OF Tallahassee v. Davis, 359 So. 2d 466 (Fla. 1st DCA 1978)…n F.S. 687.04, though not applicable to a national bank, has similar wording and has been construed similarly. (See Purvis v. Frink, 61 Fla. 712, 54 So. 862 (1911); Lyle v. Winn, 45 Fla. 419, 34 So. 158 (1903) and Levin v. Fisher (Fla. 3rd DCA 1963) 150 So. 2d 730) As noted, the first sentence of the subject federal statute provides that “the taking, receiving, reserving, or charging a rate of interest greater than is allowed by [the applicable law], * * * shall be deemed a forfeiture of the entire interest…
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Drake v. Wasserman, 274 So. 2d 547 (Fla. 3d DCA 1973)…PER CURIAM. Affirmed. See Griffin v. Kelly, Fla.1957, 92 So. 2d 515; Levin v. Fisher, Fla.App. 1963, 150 So. 2d 730.…
Authorities Cited
- Berlin Griffin v. Emmett J. Kelly, 92 So. 2d 515 (Fla. 1957)