EMILY KELLERMAN ET AL., APPELLANTS,
v.
HARRY SIEGEL AND BILLIE SIEGEL ET AL., APPELLEES

Fla. 3d DCA | 1975-10-07
No. 75-162
Before PEARSON, HENDRY and HAVERFIELD, JJ.
319 So. 2d 581 Florida District Court of Appeal, Third District (1975) Positive Treatment
Cited by 4 cases
Topics
Usury Mortgage Foreclosure Genuine Issue Of Material Fact

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Opinion of the Court
PEARSON, Judge.

PEARSON, Judge.

This is an appeal from a summary final judgment for the defendants in a mortgage foreclosure. The trial judge found “that the plaintiffs willfully and knowingly charged and otherwise exacted interest on the mortgages circumscribed by plaintiff’s amended complaint at a rate exceeding a lawful interest rate per annum . . .” We reverse upon a holding that there appears a genuine issue of material fact.

As stated in American National Growers Corporation v. Harris, Fla.App. 1960, 120 So. 2d 212, the issue of usury is ordinarily one of fact to be determined at a trial. This is especially true where, as in the instant case and the cited case, the pleadings, affidavits, admissions and depositions show that the defendant signed notes for sums in excess of those lent him, but where there is a factual dispute as to the purpose for giving the additional notes and as to the extent of the payments made. Accordingly, the summary judgment is reversed.

Reversed.

Cases With Similar Vibessemantic neighbors from the corpus

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Cited By

  • Wells v. Freedman, 342 So. 2d 983 (Fla. 3d DCA 1977)
    …hat the $7,521.00 note was given as payment for back taxes. We reverse and hold that there are present issues of material fact remaining to be tried in this cause. Usury is ordinarily an issue of fact to be determined at trial. Kellerman v. Siegal, 319 So. 2d 581 (Fla.3d DCA 1975). Moreover, usury is largely a matter of intent, and the fact that the lender has received more than the law permits is not fully determinative of this issue. Dixon v. Sharp, 276 So. 2d 817, 820 (Fla.1973). In the instant case, fact…
  • Beausejour Corp., N.V. v. Offshore Dev. Co., Inc., 802 F.2d 1319 (11th Cir. 1986)
    …ida is a question of fact. Burket v. Johnson, 61 So. 2d 197, 198 (Fla.1952); Brown v. Banning, 71 Fla. 208, 71 So. 327, 328 (1916); Schwartz v. Lincoln Construction & Development Corp., 455 So. 2d 612, 612 (Fla. 3d D.C.A. 1984); Kellerman v. Siegel, 319 So. 2d 581, 581 (Fla. 3d D.C.A. 1975) (“[T]he issue of usury is ordinarily one of fact to be determined at a trial.”); Dupont Plaza, Inc. v. Samuel Kipnis Family Foundation, 132 So. 2d 352, 357 (Fla. 3d D.C.A. 1961) (“[W]here, as here, the chancellor’s finding…

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