By: Scott J. Kennelly & Susan Novak
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.