SOUTH MIAMI HOSPITAL FOUNDATION, INC., A CORPORATION NOT FOR PROFIT, APPELLANT,
v.
JUAN B. HERNANDEZ, APPELLEE
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An agreement to pay an existing debt in installments does not constitute a novation without additional consideration, as the original debt remains extinguished.
[1] An agreement to pay an existing debt in installments does not constitute a novation unless the original debt is extinguished and consideration is given to the creditor.
[2] A creditor's forbearance to sue a debtor on an existing debt does not constitute consideration for a novation agreement.
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Join FLexlaw to unlock all legal intelligenceA hospital accepted $50 monthly payments on an outstanding debt for services rendered to the defendant's deceased wife. The trial court found this ins…
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PER CURIAM.
This is an appeal from a final judgment entered in an action to collect on an outstanding hospital bill. It is undisputed that the defendant Juan Hernandez incurred a debt for hospital services rendered by South Miami Hospital Foundation, Inc. to his deceased wife, which was payable by the said defendant thirty days after his wife’s discharge from the hospital. Subsequent to the debt becoming due and payable, a hospital representative agreed to accept $50.00 a month from the defendant as part payment on the outstanding debt; the defendant apparently was financially unable to pay the entire bill at that time.
The trial court concluded that this installment arrangement constituted a novation agreement. The court, however, did not cancel the original debt in the final judgment, but. instead ordered it paid in installments of $50.00 a month. This result means that the monthly installments will never cease and the subject debt will grow larger every month because the monthly interest on the outstanding debt is considerably more than $50.00 a month payments. The hospital appeals.
Under the above facts, it is plain that a novation agreement was never established below. The law is settled that an agreement to pay in installments on a debt which is already due and owing, as here, cannot, without more, constitute a novation agreement. This is so because the original debt is not thereby extinguished and no consideration is given to the creditor for the installment arrangement. Miami National Bank v. Forecast Construction Corp., 366 So. 2d 1202 (Fla. 3d DCA 1979). Moreover, the creditor’s claimed forebearance to sue the debtor cannot, as urged, constitute consideration to the creditor for the asserted novation agreement because the creditor gains nothing — indeed, he suffers a detriment — by such a forebearance.
We therefore reverse the final judgment under review and remand the cause to the trial court with directions to enter judgment for South Miami Hospital Foundation, Inc. in the amount of the hospital bill due and owing, plus interest.
Reversed and remanded.
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Cited By
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Wolowitz v. Thoroughbred Motors, Inc., 765 So. 2d 920 (Fla. 2d DCA 2000)…ith a “rebuildable” title. An agreement to perform a preexisting obligation does not constitute consideration. See U.S. Home Acceptance Corp. v. Kelly Park Hills, Inc., 542 So. 2d 463, 464 (Fla. 1st DCA 1989); South Miami Hosp. Found., v. Hernandez, 455 So. 2d 1103, 1104 (Fla. 3d DCA 1984). It is also clear from the terms of the “contract confirmation” that the only possible consideration from Wol-owitz was his agreement to forbear from litigation for sixty days. However, an agreement to forbear from litigatio…
Authorities Cited
- Miami Nat'l Bank v. Forecast Constr. Corp., 366 So. 2d 1202 (Fla. 3d DCA 1979)