Szenay v. Schaub, 86-393

• Decision Date: 15 October 1986
• Docket Number: No. 86-393,86-393
• Citation: 496 So.2d 883,11 Fla. L. Weekly 2221
• Parties: 11 Fla. L. Weekly 2221 James A. SZENAY and Cindy R. Szenay, Appellants/Cross-Appellees, v. John W. SCHAUB, III, and Valerie J. Davis, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 883

496 So.2d 883

11 Fla. L. Weekly 2221

James A. SZENAY and Cindy R. Szenay, Appellants/Cross-Appellees, v. John W. SCHAUB, III, and Valerie J. Davis, Appellees/Cross-Appellants.

No. 86-393.

District Court of Appeal of Florida Second District.

Oct. 15, 1986.

James E. Aker of Icard, Merrill, Cullis, Timm and Furen, P.A., Sarasota, for appellants/cross-appellees.

Scott E. Gordon of Scott E. Gordon, P.A., Sarasota, for appellees/cross-appellants.

HALL, Judge.

Appellants James and Cindy Szenay appeal a final judgment of foreclosure. By cross-appeal, appellees John Schaub and Valerie Davis seek attorney's fees.

In 1984, appellants executed a wraparound, third mortgage on their property in favor of appellees as security for a loan. The mortgage was in the amount of $18,269.79. It wrapped around a second mortgage in the amount of $12,769.79, resulting in an actual loan to appellants of $5,500. The terms of the loan required that appellants pay appellees $500 on the 26th day of each month, commencing February 26, 1984, and terminating December 26, 1984. On January 26, 1985, appellants were to pay the remaining principal plus all accrued and unpaid interest which, according to the note and mortgage, would be $15,097.86. Appellees were to be responsible for the quarterly payments on the interest-free second mortgage on appellants' property during the term of the wraparound mortgage.

On April 22, 1984, appellees failed to make a quarterly payment on the second mortgage, and it was placed in foreclosure. Appellees attempted to have the mortgage reinstated but were unsuccessful and decided to pay it off. They then advised appellants that the favorable terms of the second mortgage would continue as long as appellants were current in their payments on the wraparound mortgage.

On December 26, 1984, appellants failed to make the last monthly payment on the wraparound mortgage, and on January 26, 1985, they failed to tender the final payment. Appellees then instituted a suit in foreclosure. The trial court entered a final judgment of foreclosure for a principal amount of $13,975.62 plus interest and costs. The judgment made no provision for attorney's fees.

Appellants raise three points on appeal. In their first point, appellants argue that the loan documents and amortization schedule reflect a rate of forty-two percent interest on the loan from appellees. Because this is a usurious rate of interest, appellants assert that the final judgment should be reduced in accordance with the penalty provisions of the usury statute. § 687.03, Fla.Stat. (1985).

Appellees respond that they did not intend to charge appellants a usurious rate of interest. Rather, a genuine mistake was made in calculating the amount of the promissory note. Consequently, appellees maintain, the trial judge correctly adjusted the amount to be paid appellees in accordance with the remedy provided in the promissory note for overpayment of interest.

"[U]sury is largely a matter of intent, and is not fully determined by the fact that the lender actually receives more than law permits, but is determined by existence of a corrupt purpose in the lender's mind to get more than legal interest for the money lent." Dixon v. Sharp, 276 So.2d 817 (Fla.1973). This determination is the responsibility of the trier of fact.

The trial judge in the present case made no finding of usury in the final judgment. However, in determining the amount of principal appellants owe appellees, the judge implemented the following provision of the promissory note:

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