• Usury in Florida: Intent is Key
  • April 15, 2013 | Authors: Scott J. Kennelly; Susan Novak
  • Law Firm: Rogers Towers, P.A. - Jacksonville Office
  • Usury under Florida law is largely a matter of intent. It is not fully determined by the fact that the lender actually received more than law permits but by the existence of a corrupt purpose in the lender’s mind to charge more than the legal interest permitted by law for the money lent. In cases where the rate of interest charged was higher than the Florida statutes allow, Florida courts routinely find the issue of “intent” to be a determination for the trier of fact. This would reduce the likelihood of a lender obtaining summary judgment, at least in the early stages of litigation, prior to engaging in discovery.

    In usury cases, Florida courts analyze the element of intent on the basis of good faith. Evidence of other loan agreements involving the lender can be used to prove whether the lender had the requisite intent. Most importantly, courts have held that the element of intent is lacking if the lender can prove that the usurious interest rate was demanded, or in some cases even collected, through inadvertent error.

    This commonly arises in complex loan transactions and situations where interest has been miscalculated or where a borrower is in default under its loan documents and the lender fails to adjust its accounting method when charging the default interest rate. Thus, an otherwise non-usurious loan will not become usurious merely because usurious interest is claimed or demanded under it; rather, a borrower must prove that the lender intended to charge or collect interest in excess of the statutorily proscribed rates.

    Moreover, in cases involving inadvertent error, lenders may be able to successfully defend against a claim of usury by including a usury savings clause in the loan documents.