By Scott J. Kennelly and Janet C. Owens
When a lender “willfully” charges interest in excess of statutory limits, civil usury penalties may apply. However, Florida’s usury statutes provide for two exceptions to the application of civil usury penalties.
The first exception applies to purchasers or transferees of a loan purchased prior to its maturity date. In that case, purchasers or transferees will not be liable for civil penalties unless the usurious nature of the loan document is apparent on its face, or unless the purchaser or transferee had actual notice of the usurious nature of the document before it was purchased. Of course, a purchaser or transferee would be liable if it took any usurious action after its purchase of the loan.
The second exception involves “repenting lenders.” If the borrower has not filed a lawsuit (or asserted a defense or claim in an existing lawsuit) regarding the usurious transaction, or if the borrower has not notified the lender in writing that usurious interest has been charged or collected, the lender has the opportunity to “repent.”