CENTRAL HOME TRUST COMPANY OF ELIZABETH, APPELLANT,
v.
JOHN T. LIPPINCOTT AND NANCY L. LIPPINCOTT, APPELLEES

Fla. 5th DCA | 1980-12-17
No. 80-434
DAUKSCH, C. J., and ORFINGER, J., concur.
392 So. 2d 931 Florida District Court of Appeal, Fifth District (1980) Positive Treatment
Cited by 33 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Central Home Trust Company appealed a summary judgment dismissing its suit against the Lippincotts on a promissory note, arguing Florida's five-year statute of limitations barred the claim because the bank charged off the debt in 1974. The appellate court reversed, holding that the charge-off was merely an accounting procedure that did not accelerate the note, and that the statute of limitations runs separately on each installment payment, meaning only the earliest payments were time-barred.


Holding

The court reversed and held that the charge-off did not accelerate the note or commence the statute of limitations on all remaining payments. The statute of limitations runs separately on each installment payment beginning the day after each installment matures; therefore, only the installments due in 1973 and some in 1974 were barred, while payments due in 1974, 1975, and 1976 remained actionable. A charge-off is purely an accounting or bookkeeping procedure and does not constitute the clear and unequivocal action necessary to accelerate a note under the UCC.


Headnotes

[1] A cause of action on a time instrument accrues on the day after maturity, and the statute of limitations runs on each installment separately.

[2] The statute of limitations on an installment note may be accelerated if the holder takes clear and unequivocal action to accelerate all payments, such as providing notice…

Previewing 2 of 5 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

Key Quotes

“To constitute an acceleration after default, where the holder has the option to accelerate, the holder or payee of the note must take some clear and equivocal action indicating its intent to accelerate all payments under the note, and such action should apprise the maker of the fact that the option to accelerate has been exercised.”

Establishes the standard for what constitutes acceleration of a note—requiring clear and unequivocal action to notify the debtor, not merely internal bookkeeping

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The Lippincotts executed an installment promissory note in New Jersey on May 5, 1973, for $3,445.56 payable in monthly installments beginning July 10,…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
SHARP, Judge.

SHARP, Judge.

The plaintiff, Central Home Trust Company of Elizabeth, New Jersey, appeals from a summary judgment entered against it denying any recovery. Central sued the defendants, the Lippincotts, as makers or obligors of an installment promissory note executed in New Jersey. The trial court held the suit was barred by Florida’s five year statute of limitations1 because Central had charged off the Lippincott debt on its books more than 5 years before the suit was filed. We reverse because there is no basis for applying the statutory bar in this case.

On May 5, 1973, the Lippincotts executed an installment promissory note in Elizabeth, New Jersey, payable to Central. The total debt was $3,445.56, payable in monthly installments of $95.41 commencing July 10, 1973, and if paid according to the terms of the note, the last installment of $95.41 would have been due on June 10,1976. The note contained an acceleration clause allowing the holder to make all payments “immediately due and payable, at the election of the Bank, and without notice to the undersigned, in the event any installment was not paid when due.... ” The Lippincotts failed to pay the installment payment due October 10, 1973, and defaulted on the balance of the payments as well.

Central filed suit in Florida on the note on September 13, 1979, claiming a balance due of $2,923.62, plus interest and other costs. The defendants moved for summary judgment and for judgment on the pleadings on the sole ground that the 5 year statute of limitations barred the suit. The Lippincotts argued the five year statute of limitations commenced to run when the bank charged off the loan, and they placed in the record a letter they received from Central dated May 10, 1979. The letter stated that the Lippincotts owed Central $3,445.56 on the note and that the Bank had “charged off” the loan on March 25, 1974. It explained “when a bank charges a loan off that means they write it off their books as a total loss.” The letter also indicated the Lippincotts left New Jersey without giving Central their forwarding address, and the Bank had just “located” them in Florida.2

The statute of limitations begins to run a promissory note when a cause of action accrues against the maker or obligor.3 The UCC provides that for a “time instrument”4 a cause of action against the maker or acceptor accrues on the day after maturity.5 Installments due at different times under a note mature or accrue the day after each is due to be paid, and the statute of limitations may run on some and not others.6 Applying these rules to this case, the installments due in 1973 and some in 1974 may be barred by the statute of limitations, but the balance of the payments due in 1974, 1975 and 1976 would not be barred.

The statute of limitations may commence running earlier on an installment note for payments not yet due, if the holder exercises his right to accelerate the total debt because of a default or other reason.7 However there is no basis to conclude in this case that the note was accelerated. Under the terms of this note, Central had the option of accelerating if a default occurred. Default by the makers alone could not accelerate the indebtedness. Baader v. Walker, 153 So. 2d 51 (Fla.2d DCA), cert. denied 156 So. 2d 858 (Fla.1963). To constitute an acceleration after default, where the holder has the option to accelerate, the holder or payee of the note must take some clear and equivocal action indicating its intent to accelerate all payments under the note, and such action should apprise the maker of the fact that the option to accelerate has been exercised.11 Am.Jur.2d Bills and Notes § 296 (1963). Examples of acceleration are a creditor’s sending written notice to the debtor, making an oral demand, and alleging acceleration in a pleading filed in a suit on the debt. No such demand or notice was given in this case. By the time the suit was filed all sums were due under the terms of the note.

Central “charged off” the Lippin-cott loan as a bad debt in 1974, six months after it went into default. We reject the Lippincotts’ argument that the act of charging off the remaining debt “accelerated” the balance. “Charge-off” is defined in Black’s Law Dictionary as:

[ A]nything manifesting intent to eliminate an item from assets. Write-off of asset or other item, e. g., uncollectible account, receivable or debt. To treat as a loss or expense an amount originally recorded as an asset: usually the term is used when the charge is not in accord with original expectations.

Often charge-offs are required by bank examiners or banking laws and regulations. The process has nothing to do with contacting the debtor and demanding the total debt be paid. It is strictly a bookkeeping or accounting procedure within the bank or loan company. It is not more plausible to say a bank has “forgiven” a debt because it was “charged off” than to say it “accelerated” the debt when it was “charged off.” Neither has nothing to do with the charge-off process.

In similar contexts when the payee of a note has been required by law to present a claim for payments not yet due, such as in bankruptcy proceedings or probate matters, the courts hold that acceleration does not occur.11 Am.Jur.2d Bills and Notes § 296 (1963).

This rule is based on the theory that the provision is primarily for the benefit of the holder, who can exercise or waive his right as he wishes, since he should be free to decide whether he requires protection under the circumstances of the particular default, and that the obligor should not be entitled to take advantage of his own wrong and cause an automatic change of maturity.

For the reasons stated herein, the judgment is reversed and the case is remanded.

REVERSED and REMANDED.

DAUKSCH, C. J., and ORFINGER, J., concur. . Section 95.11(2)(b), Florida Statutes (1979) sets a 5 year period for suits involving “a legal or equitable action on a contract, obligation, or liability founded on a written instrument.” The applicable statute of limitations clearly is section 95.11(2)(b), Florida Statutes (1979). Central originally sought to rely on a New Jersey statute. However, it is well established that the forum state’s statute of limitations is generally applicable. Brown v. Case, 80 Fla. 703, 86 So. 684 (1920); 12 Am.Jur.2d Bills and Notes § 1039 (1964); 11 Am.Jur.2d Bills and Notes § 99 (1963). Section 95.10, Florida Statutes, which provides an exception to this general rule, is not applicable. Brown v. Case, supra.

. Whether or not section 673.122(1), Florida Statutes (1979) may have tolled the statute was not raised by the parties; it is not necessary to consider this point in reaching a decision.

. 12 Am.Jur.2d Bills and Notes § 1054 (1964).

. § 673.109(l)(c), Florida Statutes (1979).

. § 673.122(l)(a), Florida Statutes (1979).

. General Capital Corporation v. Tel Service Co., 212 So. 2d 369 (Fla.2d DCA 1968), modified, 227 So. 2d 667 (Fla.App.,1969). 12 Am. Jur.2d Bills and Notes §§ 1030, 1036, 1054 (1964); 21 Fla.Jur. Limitations of Actions §§ 43, 42 (1958).

. Motel Management Company, Inc. v. Winger, 335 So. 2d 9 (Fla. 4th DCA 1976); Federal Home Mortgage Corp. v. Taylor, 318 So. 2d 203 (Fla. 1st DCA 1975), 12 Am.Jur.2d Bills and Notes § 1047 (1964); 11 Am.Jur.2d Bills and Notes § 294 (1963); 6 Fla.Jur.2d Bills and Notes § 272 (1978).

Footnotes
11 Am.Jur.2d Bills and Notes § 294, p. 319 (1963).

Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (17 total)

  • Greene v. Bursey, 733 So. 2d 1111 (Fla. 4th DCA 1999)
    …llment contract starts to run on the date each payment becomes due. Isaacs v. Deutsch, 80 So. 2d 657, 660 (Fla.1955). As such, the statute of limitations may run on some installments and not others. Central Home Trust Co. of Elizabeth v. Lippincott, 392 So. 2d 931, 933 (Fla. 5th DCA 1980)(footnote omitted). Where the installment contract contains an optional acceleration clause, the statute of limitations [*1115] may commence running earlier on payments not yet due if the holder exercises his right to acceler…
  • Kraft v. Zelda Pincourt Mason, 668 So. 2d 679 (Fla. 4th DCA 1996)
    …as the trial court correctly held. When interest payments are payable in installments, the statute of limitations can run on some but not others. See Hannett v. Bryan, 640 So. 2d 203 (Fla. 4th DCA 1994); Central [*685] Home Trust Co. v. Lippincott, 392 So. 2d 931 (Fla. 5th DCA 1980). CALCULATING SHARES OF THE RECOVERY Paragraph 6 of the Loan Agreement reads as follows: 6. In consideration of the above, Borrowers hereby direct Winship & Byrne to pay to Lender the following percentages of any Recovery by pl…
  • Pici v. First Union Nat'l Bank of Fla., 621 So. 2d 732 (Fla. 2d DCA 1993)
    …take some clear and equivocal [sic] action indicating its intent to accelerate all payments under the note, and such action should apprise the maker of the fact that the option to accelerate has been exercised.” Central Home Trust Co. v. Lippincott, 392 So. 2d 931, 933 (Fla. 5th DCA 1990). A demand for accelerated payments can consist of written or oral notice to the debtor, or the filing of a suit pleading acceleration. Id. By contract, however, First Union has attempted to evade its legal responsibility to…

Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw