My question involves collection proceedings in the State of: Florida
Any thoughts on points of law that could be used to defend and get this thing dismissed? I would appreciate your help. My guys are pretty good; but, no one thinks of everything all the time and your input would be valued.
A "friend" of 20 years comes to me and asks to borrow $50K in order to buy a house he desires in Palatka, Florida. He says if I help him out he is willing to pay me 20% interest. I tell him that's not necessary and he can just pay the rate I would pay. He says he'd be happy to pay 20% in the short term as he needs the money immediately and that he wouldn't be able to get it otherwise from usual sources because his debt/income ratio is maxed out. He was due to receive some money from an inheritence of a deceased aunt and would pay me back plus the interest as soon as possible.
He comes to my house with a balloon promissory note created by his own hand. Something he copied off the internet with the loan amount and the 20% interest notated. We both sign it.
I give him the $50K check drawn from my Home Equity LIne of Credit and off he goes. He buys the house and closes in about 30 days. He pays me back the principle of $50K plus $6,927 interest in four installments from Dec.2005 to March 2006. All is well in both our worlds.
He has now filed a law suit claiming that I bilked him out of the money illegally as the 20% is two points higher than allowed by Florida law and in doing so I now owe him back an amount equal to TWICE the interest he paid.
He approached me for the money, volunteered to pay the 20% figure on his own accord, wrote the promissory note by his own hand, delivered the note to me personally at my home, gained a benefit by using the loaned funds to purchase a home and now FOUR YEARS later wants to sue me for this. I was the Patsy to his scheme. SCUMBAG!!
My attorney is going to move to dismiss. The guy and / or his attorney is using this new motion to harass and / or cause unnecessary burden because they are about to lose on the quit-claim lawsuit. If he had never approached me I would have never given him money, if he hadn't offered 20% I would never have asked for that amount, if had never written and presented a note for 20% I would never have signed it - in other words he entrapped me in to this scenario and is now using it against me to his gain. I am not a banker, accountant, lawyer etc. and had no idea 20% was an illegal rate to ACCEPT. Hell, credit card companies charge more than this.
THE PROMISSORY NOTE:
Paragraph Two: Plaintiff's TYPO!! The payments were to "begin 12.30.05 and continue until 12.30.2005 (the DUE DATE) : also- looks like his calculation for unpaid P&I due in full is wrong at $55K (should have been $60K?), but hard to read on copy. Could this typo be used in way of a defense? By his typo he defaulted on his own loan note.
Plaintiff made one payment on 12.31.05, then the rest in 2006 : Plaintiff IMMEDIATELY defaulted on the terms of the loan that he created ( because of his TYPO) ; Defendant never sought full BALLOON payment for FAILURE to meet the DUE DATE.
Plaintiff DIDN'T PAY WHEN note WAS DUE!! Hence as per the note he's liable for all attorney fees "WHETHER OR NOT A LAW SUIT IS COMMENCED"
Plaintiff didn't pay 20% - That would be $10,000 due on the due date of DEC. 30, 2005 - Plaintiff DEFAULTED ON HIS DUE DATE and Plaintiff only paid $6927 which is only 13.85% in total. Defendant never sought any other monies. When figured on an annual basis the $6927 come to 18.4% ( a lot closer to the legal limit of 18%). Also, Plaintiff did all the calculations as to the amount of interest he was to pay. Defendant never presented him with any sort of amortization schedule. Plaintiff did the whole thing himself.
Defendant never asked for 20%, it was volunteered, defendant didn't ask for specific performance when the DUE DATE was not met. Defendant allowed Plaintiff to pay at will after FAILING TO MAKE THE DUE DATE and until the note was paid in full as of March 2006

