Gillis v. Fisher Hardware Co., T--110
| Decision Date | 12 February 1974 |
| Docket Number | No. T--110,T--110 |
| Citation | 289 So.2d 451 |
| Parties | Make GILLIS and wife, Eula Gillis, Appellants, v. FISHER HARDWARE COMPANY, a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Gerry W. Gerde, Davenport, Johnston, Harris & Gerde, Panama City, for appellants.
E. Allan Ramey, Andrews & Miller, De Funiak Springs, for appellee.
On August 5, 1969, appellants and appellee entered into an agreement whereby the latter sold appellants a 'home improvement' package and secured payment thereof by a mortgage executed by appellants covering their residence. On May 20, 1971, appellee instituted a suit to foreclose the mortgage because appellants had failed to make the required payments.
Appellants answered asserting various defenses, among which was the appellee's failure to comply with the Federal Consumer Protection Act of 1968. Appellants further counterclaimed on the grounds that appellee had failed to comply with the Federal Consumer Protection Act and prayed for the maximum damages provided under that Act.
The lower court entered a partial summary judgment in favor of appellee holding that the Consumer Credit Protection Act was not applicable and denied appellants' motion for summary judgment.
Appellants then took this interlocutory appeal contending first that the lower court erred in denying their motion for summary judgment based upon appellee's noncompliance with the Consumer Credit Protection Act. Secondly, it is contended that the lower court erred in holding that the statute of limitation contained in the Act had run.
As to appellants' first point, they contend that appellee failed to properly notify appellants of their right to rescind the contract under Title 15, U.S.C.A. § 1635 and 12 CFR 226.9 (Regulation Z) issued pursuant thereto. We agree with the trial court that there was sufficient conflicting evidence as to the circumstances involving the notice of the right to rescind so as to deny a motion for summary judgment based thereon. Although appellants claim that they never received the notice and the signatures contained thereon were forgeries, appellee's depositions show that notices were always mailed to customers and that a notice to appellants had been mailed. It appears therefore that there is a justiciable question of fact on this issue.
We also agree with the lower court that the one year limitation on actions contained in Title 15, U.S.C.A. § 1640(e) is applicable in the instant...
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Kerby v. Mortgage Funding Corp., CIV.A. CCB-97-1509.
...but is representative. The following cases reach a contrary conclusion. This list is also representative only. Gillis v. Fisher Hardware, 289 So.2d 451 (Fla. 1st DCA 1974); Shannon v. Carter, 282 Or. 449, 579 P.2d 1288 (1978); Ken-Lu Enterprises, Inc. v. Neal, 29 N.C.App. 78, 223 S.E.2d 831......
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Household Finance Corp. v. Pugh, 49990.
...as a basis for rejecting a TILA claim interposed as a defense to the creditor's suit for damages. See, also, Gillis v. Fisher Hardware Co., 289 So.2d 451 (Fla.App.1974) (§ 1610(d) cited in partial support for disallowing a TILA claim as a defense to an action instituted to foreclose a In ou......
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Aetna Finance Co. v. Pasquali, 1
...America Corp., 583 F.2d 918 (7th Cir. 1978), cert. denied, 439 U.S. 1128, 99 S.Ct. 1046, 59 L.Ed.2d 89 (1979); cf. Gillis v. Fisher Hardware Co., 289 So.2d 451 (Fla.App.1974) (a claim under the Act must be brought within one year); Shaw v. First National Bank, 143 Ga.App. 416, 238 S.E.2d 71......
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Shannon v. Carter
...Enterprises, Inc. v. Neal, 29 N.C.App. 78, 223 S.E.2d 831 (1976) (based upon 1974 amendment; now § 1640(h)); Gillis v. Fisher Hardware Company, 289 So.2d 451 (Fla.App.1974). * Tongue, J., did not participate in the decision in this case.1 Shannon concedes that if Oregon law were applied her......