FLORIDA’S SECOND DCA REVERSES DISMISSAL | Key Points

1. Last month Florida’s Second DCA reversed a summary judgment order which dismissed an action on a note filed by multiple lenders (“the Shanks”) against a borrower (“Bergerman”) due to the running of the statute of limitations. Shanks v. Bergerman, 2D20-3431, 2022 WL 257460 (Fla. 2d DCA Jan. 28, 2022). During the summary judgment proceedings, the parties proffered conflicting evidence regarding when Bergerman made his last payment on the Note. The Shanks presented multiple $10,000 checks from Bergerman and claimed those payments were accepted as payment for the Note in question. Shanks also argued that Bergerman’s proffer and Shanks’ acceptance of those payments extended the Note’s maturity date. Bergerman countered that he made no payments on the Note after September 2006 and the $10,000 checks were to pay a completely different loan.

2. The trial court granted the Bergerman’s summary judgment motion on the basis that the Shanks’ filed the action on the Note more than five years after the maturity date of the Note in violation of the statute of limitations (codified at § 95.051(1)(f), F.S.). The court also concluded the maturity date of the Note could only be extended in writing and there was no written agreement between the parties to extend the loan. The Shanks appealed the summary judgment order of dismissal to the Second DCA.

3. The DCA reversed the dismissal of the Shank’ action on the Note due to the conflicting evidence regarding the $10,000 payments. The Court explained the conflicting evidence created a disputed issue of material fact which prevented summary disposition. The Court held “the trier of fact” would need to determine two factual issues: (1) Whether “payments made beyond the promissory note’s maturity date” pertained to the Shanks’ Note and (2) Whether those payments tolled the statute of limitations. The Court remanded the matter for further proceedings consistent with its holding.

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