ELENA TEMNIKOVA
v.
EASTERN FINANCIAL MORTGAGE CORPORATION
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A promissory note's provision for a legal rate of interest with a contractual limitation agreed to by the parties that applies upon default to the maximum interest allowed by law does not constitute usury.
[1] Whether a transaction is usurious is determined at the inception of the loan, and a promissory note that provides for a legal rate of interest with a contractual provisio…
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Join FLexlaw to unlock all legal intelligence“It is well-settled that the determination of whether a transaction is either civilly or criminally usurious is made at the inception of the loan. . . . The note provides for a legal rate of interest and there is a contractual limitation agreed to by the parties, which applies in the event of default, to the maximum interest allowed by law.”
Court's explanation of the usury analysis
Elena Temnikova and others were borrowers on a mortgage note issued by Eastern Financial Mortgage Corporation. The borrowers challenged the note's int…
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Opinion filed September1, 2021. Not final until disposition of timely filed motion for rehearing.
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No. 3D21-759 Lower Tribunal No. 20-6626
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Elena Temnikova, et al.,
Appellants,
vs.
Eastern Financial Mortgage Corporation, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Alan Fine, Judge. Pomeranz & Associates, P.A., and Mark L. Pomeranz (Hallandale), for appellants. Wells & Wells, P.A., and Diane N. Wells; Kula & Associates, P.A., and Elliot B. Kula, W. Aaron Daniel and William D. Mueller, for appellee. Before EMAS, SCALES and LOBREE, JJ. PER CURIAM. Upon our de novo review1 of the trial court’s Final Judgment of Foreclosure, we conclude that the trial court did not err in its determination that the subject notes and the subsequent default rate interest are not usurious. World O World Corp. v. Patino, 306 So. 3d 1044, 1046 (Fla. 3d DCA 2020) (“It is well-settled that the determination of whether a transaction is either civilly or criminally usurious is made at the inception of the loan. . . . The note provides for a legal rate of interest and there is a contractual limitation agreed to by the parties, which applies in the event of default, to the maximum interest allowed by law.”); see Jersey Palm-Gross, Inc. v. Paper, 658 So. 2d 531, 535 (Fla. 1995) (recognizing that a promissory note’s savings clause, though not dispositive in absolving a lender, is one factor in considering usurious intent). We also conclude that the trial court did not abuse its discretion by denying appellants’ motion for continuance. See Tr. Real Estate Ventures, LLC v. Desnick, 278 So. 3d 242, 242-43 (Fla. 3d DCA 2019); Carbonell v. BellSouth Telecomms., Inc., 675 So. 2d 705, 706 (Fla. 3d DCA 1996) (“A party seeking a continuance [of a summary judgment hearing] bears the burden of showing, by affidavit, the existence and availability of other evidence, its relevance, the efforts taken to produce it,
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Temnikova v. E. Fin. Mortg. Corp., 306 So. 3d 1044 (Fla. 3d DCA 2021)…de novo review1 of the trial court’s Final Judgment of Foreclosure, we conclude that the trial court did not err in its determination that the subject notes and the subsequent default rate interest are not usurious. World O World Corp. v. Patino, 306 So. 3d 1044, 1046 (Fla. 3d DCA 2020) (“It is well-settled that the determination of whether a transaction is either civilly or criminally usurious is made at the inception of the loan. . . . The note provides for a legal rate of interest and there is a contr…
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Full PRO Restoration v. Citizens Prop. Ins. Corp. (Fla. 3d DCA 2023)
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Full PRO Restoration v. Citizens Prop. Ins. Corp. (Fla. 3d DCA 2023)…hin the discretion of the trial judge and a gross or flagrant abuse of this discretion must be demonstrated by the complaining party before this court will substitute its judgment for that of the trial judge.” Tr. Real Est. Ventures, LLC v. Desnick, 278 So. 3d 242 (Fla. 3d DCA 2019) (citing Stern v. Four Freedoms Nat'l Med. Servs., Co., 417 So. 2d 1085, 1086 (Fla. 3d DCA 1982)). Florida Rule of Civil Procedure 1.510(c)(5) states that the nonmovant’s response to the motion for summary judgment, and its supp…
Authorities Cited
- Volusia Cnty. v. Aberdeen AT Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000)
- Carbonell v. Bellsouth Telecomms., Inc., 675 So. 2d 705 (Fla. 3d DCA 1996)
- Jersey Palm-Gross, Inc. v. Paper, 658 So. 2d 531 (Fla. 1995)
- Temnikova v. E. Fin. Mortg. Corp., 306 So. 3d 1044 (Fla. 3d DCA 2021)
- Tr. Real Est. Ventures, LLC v. Desnick, 278 So. 3d 242 (Fla. 3d DCA 2019)