“When Dealing With A Bank You Had Better Get It In Writing”

Luxury Homes and Estates in Florida

Bank officers routinely meet with borrowers to talk about troubled loans. The banker and the borrower oftentimes leave the same meeting with divergent views regarding the parties’ obligation and agreements. The bank’s subsequent attempt to enforce its loan documents may invite retaliatory lawsuits.

In the 1980’s there was a plethora of litigation against banks claiming unfair collection practices. Borrowers would often claim that the bank made promises to extend credit or change the terms of a loan but would break the promise.

The lawsuits added to the costs of commercial lending because it created uncertainty with regard to the liability of participating banks. Accordingly, the Florida legislature engineered Statute 687.0304. This statute bars anyone from filing a case relying upon an alleged oral credit agreement.

In order to have an enforceable agreement against a bank the agreement must be (1) in writing; (2) express consideration; (3) set forth relevant terms and conditions; and (4) must be signed by both the bank and the borrower.*

Therefore, if you have negotiated with a bank manager that the bank will not foreclose, call the loan in default or seek default interest, attorneys fees or costs, the agreement is not binding unless an agreement is written and signed.

The statute has been tested in appellate courts and has survived judicial scrutiny.

In the final analysis, unless there is a written document there is no agreement with a bank.

*See 687.0304(2)

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Houston Short grew up in the Central Florida area, and continues to reside in Orlando with his family. He provides representation in arbitration actions for the American Arbitration Association and engages in alternative dispute resolutions including mediation both binding and non-binding arbitration, and settlement negotiations. He is an active member of the American Arbitration Association Panel Review Committee, the Orange County Bar Association, and the Florida Bar. He graduated from Florida State University in 1984 with a bachelors of science degree (cum laude) and received his juris doctor from the University of Florida in 1987 (with honors). Houston co-authored, "The Constitutionality of the Legislatures Mandate to Sever Counterclaims in Mortgage Foreclosure Action," the Real Property, Probate and Trust Law Section, The Florida Bar.