BURLEY
v.
AMERICAN FINANCE CORPORATION OF FLORIDA
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Circuit court dismissed a declaratory judgment action seeking to determine whether a loan was usurious where the same parties and issues were already pending in small claims court, holding that usury is an affirmative defense properly raised in the existing proceeding rather than through a separate declaratory action.
Declaratory relief to determine whether a loan transaction is usurious does not lie when the same parties and issues are already pending in another court proceeding where usury can be raised as an affirmative defense.
[1] Usury constitutes an affirmative defense in a pending suit and need not be litigated through a separate declaratory judgment action when the same parties and issues are a…
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Join FLexlaw to unlock all legal intelligenceThe defendant in a pending small claims court proceeding filed a complaint in circuit court seeking a declaratory decree to determine whether a loan t…
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This cause came on to be heard on the motion to dismiss of the defendant, American Finance Corporation of Florida, and the court having heard argument of counsel and being otherwise fully advised, finds —
It is evident from the record that there is pending in the small claims court a proceeding involving the same parties, same cause, and same issues, raised or inherent. Nevertheless, one of the litigants — the defendant in that suit — has seen fit to file in this court a complaint for a declaratory decree seeking affirmative relief, involving the same parties, same cause and same issues. Plaintiff asks this court to determine whether the loan transaction between the parties is usurious.
In a pending suit usury is an affirmative defense to be pleaded, Diversified Enterprises, Inc. v. West (Fla. App. 1962), 141 So.2d 27. The plaintiff in the case at bar — defendant in the said pending suit — has the right and opportunity to so plead in the pending suit, and if entitled to it will receive the same relief *147sought here. Under the facts of his case, declaratory relief does not lie. Taylor v. Cooper (Fla. 1952), 60 So.2d 534, reh. den.
This is not so say that in a proper case, in one where a proceeding is not already pending, affirmative relief is precluded.
It is accordingly ordered and adjudged that the motion to dismiss is granted, and that the complaint is dismissed, with prejudice.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Taylor v. Cooper, 60 So.2d 534 (Fla. 1952)
- Diversified Enters., Inc. v. West, 141 So. 2d 27 (Fla. 2d DCA 1962)