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Nolden v. Summit Financial Corp.

Florida Court of Appeals, Fourth District

April 25, 2018

SUMMIT FINANCIAL CORPORATION, a Florida corporation, DAVID WHEELER, ALVIN WHEELER, ART RICHARDSON, and HOLCOMBE USA, INC., a Florida corporation d/b/a AutoShow Sales and Service, Appellees. FEDERAL TRUTH-IN-LENDING DISCLOSURES ANNUAL PERCENTAGE RATE FINANCE CHARGE Amount Financed Total of Payments Total Sale Price Your Payment Schedule Will Be:

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Carlos Augusto Rodriguez, Judge; L.T. Case No. CACE-14-009704 (14).

          Kenneth J. Kavanaugh of Kenneth J. Kavanaugh, P.A., Davie, for appellant.

          William J. Denius of Killgore, Pearlman, Semanie, Denius & Squires, P.A., Orlando, for appellees, Summit Financial Corporation, a Florida corporation, David Wheeler, Alvin Wheeler and Art Richardson.

          Robert E. Sickles and Jason S. Lambert of Broad and Cassel, Tampa, for appellee, Holcombe, USA, Inc., d/b/a AutoShow Sales and Service.

          Gross, J.

         This lawsuit arose out of Adrianne Nolden's financed purchase of a used car. Central to her five-count complaint was the claim that the 27.81% interest charge under the purchase contract exceeded the 18% interest rate limit imposed by Florida's usury statute. We hold that this case is controlled not by the usury statute but by Chapter 520, Florida Statutes (2009), and affirm the summary final judgment for the defendants entered by the circuit court.

         In her third amended complaint, Nolden (the "buyer") sued Summit Financial Corporation and two of its employees. She later added Holcombe, USA, Inc. (d/b/a AutoShow Sales and Service) as a fourth defendant. The complaint sets forth causes of action related to the purchase of a 2004 Pontiac Grand Prix from AutoShow and the repossession of the car in 2013 by Summit. The buyer sued both Summit Financial and AutoShow for criminal usury and for violations under Chapter 772, Florida Statutes (2009), the Civil Remedies for Criminal Practices Act. § 772.101, Fla. Stat. (2009).

         Summit Financial and AutoShow answered the complaint setting forth several defenses including:

(1) A contract for the purchase of a used automobile with a deferred payment plan is not subject to Florida's general usury statute; and
(2) The interest charged is allowable under the Motor Vehicle Retail Sales Finance Act which governs the transaction.

         Summit Financial moved for summary judgment. Attached to the motion was an employee's affidavit. He attested that:

• The buyer entered into a Retail Installment Sale Contract for the purchase of the car. The contract gave the buyer the option of buying the car for cash or on credit - by signing the contract, the buyer chose to buy the car on credit.
• The contract was assigned to Summit Financial, which is an automotive finance company.
• The contract was not a contract for the loan of money. The contract was for the purchase of the car.

         A copy of the contract (the "contract") was attached to the employee's affidavit. The contract is titled:


         The parties to the contract are Nolden as the buyer and AutoShow as the seller. The contract is a pre-printed form with blanks filled in setting forth the details of the transaction. The first page provides an "itemization of amount financed" including cash price of the car ($11, 694.10); the buyer's down payment ($2, 500); and "other charges" that are itemized and added to the price (totaling $2, 688.91). The total "amount financed" is listed as $11, 883.01.

          The contract states that the buyer may purchase the car for cash or on credit. If the buyer chooses to buy on credit, the contract sets forth the financing terms that will apply:

You, the Buyer . . . may buy the vehicle below for cash or on credit. By signing this contract, you choose to buy the vehicle on credit under the agreements on the front and back of this contract. You agree to pay the Seller-Creditor . . . the Amount Financed and Finance Charge in U.S. funds according to the payment schedule below. We will figure your finance charge on a daily basis at the Base Rate of 27.81% per year. The Truth-In-Lending Disclosures are part of this contract.

         Truth-In-Lending Disclosures appear on the first page:

The cost of your credit as a yearly rate.
27.810 %
The dollar amount the credit will cost you.
$ 8, 163.71
Amount Financed
The amount of credit provided to you or on your behalf.
$ 11, 883.01
Total of Payments
The amount you will have paid after you have made all payments as scheduled
$ 20, 046.72
Total Sale Price
The total cost of your purchase on credit, including your down payment of $ 2, 500.00 is
$ 22, 546.72
Your Payment Schedule Will Be:
Number of Payments
Amount of Payments
When Payments Are Due
Monthly beginning 03/06/09

         The contract provides that it is assignable, and the copy of the contract in evidence shows that it ...

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