final until disposition of timely filed motion for rehearing.
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,
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.
E. Sickles and Jason S. Lambert of Broad and Cassel, Tampa,
for appellee, Holcombe, USA, Inc., d/b/a AutoShow Sales and
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.
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).
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.
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
• 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.
of the contract (the "contract") was attached to
the employee's affidavit. The contract is titled:
INSTALLMENT SALE CONTRACT SIMPLE FINANCE CHARGE
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.
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.
Disclosures appear on the first page:
ANNUAL PERCENTAGE RATE
The cost of your credit as a yearly rate.
The dollar amount the credit will cost you.
$ 8, 163.71
The amount of credit provided to you or on your
$ 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
contract provides that it is assignable, and the copy of the
contract in evidence shows that it ...