Ross v. Barnett, 82-854

• Decision Date: 30 November 1982
• Docket Number: No. 82-854,82-854
• Citation: 422 So.2d 1040
• Parties: Sol M. ROSS, as Trustee of David Scott Ross and Jo Anne Ross Trust, Appellant, v. Steve M. BARNETT and Lois M. Ross, as Trustees of the Barnett Family Trust, Appellees.
• Court: Florida District Court of Appeals

Page 1040

422 So.2d 1040

Sol M. ROSS, as Trustee of David Scott Ross and Jo Anne Ross Trust, Appellant, v. Steve M. BARNETT and Lois M. Ross, as Trustees of the Barnett Family Trust, Appellees.

No. 82-854.

District Court of Appeal of Florida,

Third District.

Nov. 30, 1982.

Susan G. Chopin, West Palm Beach, for appellant.

Paul R. Lipton, North Miami Beach, for appellees.

Before HENDRY, FERGUSON and JORGENSON, JJ.

FERGUSON, Judge.

Section 687.03(5)(a), Florida Statutes (1979) which raised the legal interest rate ceiling from 10% to 18% has retroactive application to loans made prior to July 1, 1979, where by terms of the contract the lender has the legal right to adjust the interest rate. ¹ U.P.C., Inc. v. Intercontinental Bank, 410 So.2d 554 (Fla. 3d DCA 1982). The $75,000 promissory note in this case, executed in 1975 provides for a fluctuating rate of interest (between 6% and 10%) pegged to a prime interest rate and is, therefore, an adjustable interest rate note which is excepted from the usury statute, notwithstanding the fact that the interest rate cannot exceed 10%. If, as contended, the appellees have exacted interest in excess of 10%, but less than 18%, the appellants have an action for breach of contract, but the interest charged in excess of 10% is not usurious.

Summary judgment granted on the usury claim is AFFIRMED.

1 § 687.03 "Unlawful rates of interest" defined; proviso.--

(1) Except as provided herein, it shall be usury and unlawful for any person, or for any agent, ... to reserve, charge, or take for any loan, advance of money ... a rate of interest greater than the equivalent of 18 percent per annum simple interest....

* * *

(5) As amended by Chapter 79-592, Laws of Florida, Chapter 79-274, Laws of Florida, which amended subsection (1):

(a) Shall apply only to loans, ... made on or subsequent to July 1, 1979, and to loans ... made prior to that date if the lender has the legal right to ... adjust or modify the interest rate, by renewal, assumption, reaffirmation, contract, or otherwise.... (e.s.).