Unfortunately, competent attorneys are often retained after problems arise, as opposed to being hired to ensure that a transaction is handled correctly at its inception. This case note discusses a recent opinion from the Florida Fourth District Court of Appeal, which demonstrates that, even when the law is clear on a particular issue, mistakes can lead to increased costs and hassle in litigation.
In Avant Capital, LLC v. Gomez, Case No. 4D17-1014 (4th DCA Sept. 20, 2018), the Fourth District Court of Appeal recently considered whether an incorrect name utilized on a promissory note (or other contract) can preclude relief or recovery by that party on the contract. It is noteworthy that the Gomez opinion does not address alternative causes of action such as unjust enrichment or implied contracts; rather, it solely addresses actions at law on promissory notes. In Gomez, the defendant executed a promissory note in favor of “Providian Mortgage of South Florida,” but the lender was actually “Providian Mortgage Corporation of South Florida.” The plaintiff, Avant Capital, was a successor in interest to Providian under the promissory note pursuant to a chain of endorsements. Defendant moved for summary judgment, claiming that because Providian Mortgage of South Florida was not an actual legal entity, and the trial court found that the plaintiff did not have standing, and granted summary judgment in favor of the defendant. The Third District Court of Appeal reversed, citing to Section 694.12, Fla. Stat., and found that “[s]light departures from the name used by the corporation, such as the omission of a part of its name or the inclusion of additional words, generally will not affect the validity of contracts or other business transactions as long as the identity of the corporation can be reasonably established from the evidence.” Id. (quoting Presley v. Ponce Plaza Assocs., 723 So. 2d 328, 330 (Fla. 3d DCA 1998).
Consider that the plaintiff in Gomez, and its predecessor in interest, were sophisticated parties –a mortgage lender and servicer — and imagine how many individuals and small businesses, who do not have law firms on retainer, make errors or omissions in their transactions, leading to increased fees (such as through costly appeals), costs, and delays. While a defendant cannot avoid liability due to typographical error as to a name in a contract or promissory note, such errors can lead to increased costs, delays, and stress. Hiring competent legal counsel to handle a transaction at the inception is as important as securing competent litigation counsel after problems arise.
Once in litigation, it is important to retain legal counsel who is well-versed in the statutes applicable to your case, case law and other legal developments, and who is prepared to, and capable of, properly and effectively arguing your position before the trial court in order to avoid unnecessary expenses, including the costly process of an appeal. Jeffrey Law, PA, stands ready to assist. Contact us at: [email protected] or 305.222.7921, to schedule a consultation.
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at www.rsjlegal.com. Mr. Jeffrey has been awarded an AV Rating by Martindale-Hubbell (2017 – 2019), as “Peer Rated For Highest Level of Professional Excellence.” Robert was awarded a 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. See https://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html.
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