VITTORIO BOERI, APPELLANT,
v.
ATTEL BANK INTERNATIONAL, LTD., APPELLEE
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Affirmed summary judgment for bank in foreclosure action where defendant's affirmation of facts in his own deposition established that the bank's forbearance from pursuing a legal claim constituted valid consideration for the promissory notes.
Forbearance from pursuing a legal remedy where the creditor has a bona fide belief in a viable legal right constitutes valid consideration for a promissory note, and summary judgment is proper when the debtor's own deposition testimony establishes these facts.
[1] Forbearance from pursuing a legal remedy constitutes valid consideration for a promissory note when the creditor holds a bona fide belief that a viable legal right exists…
Previewing 1 of 1 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“It is well settled Florida law that forbearance from pursuing a legal remedy, where the promisee has a bona fide belief that a viable legal right exists, constitutes valid consideration for an agreement which benefits the promisor.”
Court citing Citibank Int'l v. Mercogliano to establish the legal standard for forbearance as consideration.
Attel Bank International sued Vittorio Boeri to foreclose on promissory notes. Boeri claimed lack of consideration as an affirmative defense, but his …
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PER CURIAM.
In the underlying action filed by Attel Bank International, Ltd. [the bank], to foreclose on several promissory notes, the defendant, Vittorio Boeri, appeals from an adverse final summary judgment and from an amended final summary judgment. We affirm.
A review of the record shows that any genuine issues of material fact raised by Boeri’s affirmative defense of lack of consideration were resolved by his own deposition testimony wherein he admitted that a dispute arose between himself and the bank regarding some losses, that both he and the bank had a good faith belief that the bank had a legal claim against him, that he executed the promissory notes in question, and that the bank forbore from filing a civil claim against him. Based on the foregoing facts, the bank was entitled to judgment as a matter of law. Citibank Int'l v. Mercogliano, 574 So. 2d 1190, 1191 (Fla. 3d DCA)(“It is well settled Florida law that forbearance from pursuing a legal remedy, where the promisee has a bona fide belief that a viable legal right exists, constitutes valid consideration for an agreement which benefits the promisor.”), review denied, 584 So. 2d 999 (Fla.1991).
The defendant’s other point lacks merit.
Accordingly, we affirm.
GODERICH and SHEVIN, JJ., concur.
COPE, Judge,
concurring in part and dissenting in part.
Reading the summary judgment record in the light most favorable to defendant-appellant as the nonmoving party, there is a disputed issue of material fact regarding what constituted the consideration for the notes, and whether that consideration was received. I would reverse the summary judgment on that basis.
I concur regarding the remaining point on appeal.