ABRAHAM SEROTKIN AND ESTHER SEROTKIN, APPELLANTS,
v.
FRANK FLAVIN, A WIDOWER; AND TERMPLAN FINANCING, INC., A FLORIDA CORPORATION, APPELLEES
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In a mortgage foreclosure action, the lender sought to enforce a lien for the balance due on a $1,000 loan. The borrower claimed usury and sought return of all payments. The trial court found the borrower had fully repaid the actual principal received ($657.40) with an overpayment of $110.56, and ruled the lenders were not guilty of usury. The appellate court affirmed, finding the lenders responsible for their attorney's unauthorized disbursements but not guilty of usury due to lack of intent or knowledge.
The court affirmed the trial court's finding that the borrower's indebtedness was limited to the actual principal received ($657.40), which had been fully repaid with an overpayment of $110.56. The court also affirmed that the lenders were not guilty of usury because they lacked intent to charge more than legal interest and had no knowledge of the unauthorized deductions.
“It was incumbent upon the lenders to see that their attorney properly disbursed the proceeds of the loan.”
Establishes the lenders' responsibility for the attorney's disbursement of loan proceeds and unauthorized deductions.
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Join FLexlaw to unlock all legal intelligenceThe lenders made a $1,000 loan to the borrowers, represented by an attorney who was responsible for disbursement of loan proceeds. The attorney, who w…
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The appellants were plaintiffs in an action to foreclose a mortgage. They were the mortgagees and will be referred to as the lenders. The appellees were defendants and counterclaimants. They were the mortgagors and will be referred to as the borrowers. The lenders sought to enforce a lien for a balance of $325.89, upon an original loan of $1,000, plus interest and attorney’s fees. The borrowers pled usury and sought the return, pursuant to section 687.07, Fla.Stat., F.S.A., of all sums paid. The chancellor found that the actual principal sum ($657.40) received by the borrower had been fully repaid and that there was an overpayment of $110.56. His decree cancelled the mortgage; gave judgment against the lenders for the overpayment and denied the counterclaim. The lenders appeal and assign as error the finding that the indebtedness consisted of only the actual sum received by the borrower, ($657.40). The borrowers cross assign as error the finding that, the lenders were no.t. guilty of usury. Upon a consideration of the record and the briefs, we find that there is competent evidence to sustain the findings of the chancellor.
No clearly defined point of law is presented by either appellant or appellee. Each chose to present only a long question, in which the factual background is restated in the light most favorable to his client, preceded or concluded by a suggestion that the court erred in its decree. Such a procedure is not in compliance with Rule 3.7, subd. f(3), Florida Appellate Rules, 31 F.S.A., which requires: “A statement of the case and of the facts and points involved, in a clear and concise manner. * * (Emphasis supplied.) 'Nevertheless, we have considered -the essential questions as we deemed them to have been thus intended.
The record is sufficient to support' the conclusion of the chancellor that the attorney, who handled the entire loan proceeding, was responsible to more than one interest in the transaction. He was introduced into the matter by the A. B. C. Mortgage Company. He performed certain necessary services for the borrower. He was fixed with the full responsibility of disbursement by the lender. The chancellor found, that since the lender saw fit to impose upon the attorney the full responsibility of the disbursements, that the lender was responsible for the fact that no proper account could be made of certain amounts disbursed. Therefore, he properly held *485that the borrower should not be charged with unauthorized deductions from the amount deposited with the attorney. Cf. Sullivan v. Duval Lumber Co., 99 Fla. 521, 126 So. 792. It was incumbent upon the lenders to see that their attorney properly disbursed the proceeds of the loan.
Further, there is sufficient evidence in the record to support the finding of the chancellor, that there was no intent on the part of the lenders to get more than the legal interest for the use of their money. No evidence was introduced to demonstrate that the lenders had knowledge of the deductions, and the chancellor specifically found that they were “not parties to these unauthorized deductions.” See Chandler v. Kendrick, 108 Fla. 450, 146 So. 551; Jones v. Hammock, 131 Fla. 321, 179 So. 674; Maule v. Eckis, 156 Fla. 790, 24 So.2d 576.
Affirmed.
CARROLL, CHAS., C. J., and HORTON, J., concur.
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Hardcastle v. Mobley, 143 So. 2d 715 (Fla. 3d DCA 1962)…points, each of which was a violation of the rule relative to clarity and conciseness in the stating of points on appeal. 3.7, subd. f, F.A.R., 31 F.S.A.; State v. City of Hialeah, Fla.1959, 109 So. 2d 368; Serotkin v. Flavin, Fla.App. [*717] 1959, 111 So. 2d 483. However, we have examined the points and find that the appellant relies on the following as grounds for reversal of the summary decree of dismissal filed in this cause: (1) That the prohibition of § 90.05 Fla.Stat, F.S.A., known as the “dead man’s…
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Putman v. Putman, 154 So. 2d 717 (Fla. 3d DCA 1963)…her party, in setting out their points on appeal, has complied with the provisions of Rule 3.7f(3), Florida Appellate Rules, 31 F.S.A., in reference to stating “points involved, in a clear and concise manner”. See: Serotkin v. Flavin, Fla. App.1959, 111 So. 2d 483; Carrol v. Hertz Corporation, Fla.App.1961, 132 So. 2d 624.…
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Leviton v. Philly Steak-Out, Inc., 533 So. 2d 905 (Fla. 3d DCA 1988)…o discussion. See Tesini v. Zawistowski, 479 So. 2d 775, 776 (Fla. 4th DCA 1985); Central Nat’l Bank v. Muskat Corp., 430 So. 2d 957, 958 (Fla. 3d DCA 1983); Sabin v. Lowe’s of Fla., Inc., 404 So. 2d 772, 773 (Fla. 5th DCA 1981); Serotkin v. Flavin, 111 So. 2d 483, 484-85 (Fla. 3d DCA), cert, denied, 115 So. 2d 415 (Fla.1959). The final summary judgment under review is, therefore, in all respects, AFFIRMED.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Turbeville v. State, 107 Fla. 631 (Fla. 1933)
- Mrs. Jesse Sewell Jones v. Hammock, 131 Fla. 321 (Fla. 1937)
- Chandler v. Kendrick, 108 Fla. 450 (Fla. 1933)
- Maule v. Eckis, 156 Fla. 790 (Fla. 1946)
- Sullivan v. Duval Lumber Co., 99 Fla. 521 (Fla. 1930)