Opinion
6:22-bk-4370-TPG
03-28-2024
In re: Sydria Lucrig Jordan, Debtor.
ORDER OVERRULING DEBTOR'S OBJECTION TO AMENDED CLAIM 9 FILED BY CACH, LLC
TIFFANY P. GEYER UNITED STATES BANKRUPTCY JUDGE.
THIS CASE came on for hearing on January 10, 2024, on the Debtor's Objection (the "Objection") (Doc. No. 52) to Amended Claim 9 (the "Claim") and the response thereto (the "Response") filed by Cach, LLC (the "Creditor") (Doc. No. 89). After reviewing the Claim, the Objection and Response, and considering arguments of counsel and the law, the Court concludes the Claim is not time-barred and therefore the Objection is overruled.
The Debtor filed this Chapter 13 case on December 9, 2022. (Doc. No. 1.) The Creditor filed the Claim on February 1, 2023 (amended on May 8, 2023) in the amount of $1,743.82. (Claim 9-1 at 2; Claim 9-2 at 2.) The Claim is based on a loan installment agreement with a maturity date of March 5, 2016. (Doc. No. 52 ¶ 12; Doc. No. 89 ¶ 2; Claim 9-2 at 6-11.) The proof of claim includes a record reflecting a payment was received on May 30, 2018. (Claim 9-2 at 5.)
At the hearing, the Debtor did not concede a payment was made on May 30, 2018, but did not deny that the Creditor's business records reflect that a payment was received on that date or adduce any information refuting such.
Because the loan matured on March 5, 2016, the Debtor argues that the Claim is time-barred by Florida Statute section 95.11(2)(b), which supplies a five-year limitations period in which to commence any legal or equitable action based on a contract, obligation, or other liability founded on a written instrument. (Doc. No. 52.) Pointing to the March 5, 2016 maturity date, the Debtor argues that the statute of limitations expired five years later, on March 5, 2021. (Id. ¶ 18.) At the hearing, the Debtor relied on Hankey v. Yarian, 755 So.2d 93, 94 (Fla. 2000), to argue that Section 95.051(1)(f) merely interrupts, and does not extend, the statute of limitations. Although Hankey v. Yarian is a case decided by the Florida Supreme Court, the case is of little assistance here as it arose in the context of a medical malpractice action and was governed by Florida Statute sections 95.11(4)(b) and 766.106(4), rather than the statutes governing here, Florida Statute sections 95.11(2)(b) and 95.051(1)(f).
In response, the Creditor argues that the payment made on May 30, 2018, tolled the five-year statute of limitations per Florida Statute section 95.051(1)(f). (Doc. No. 89 ¶¶ 11-14.) Section 95.051(1)(f) relevantly provides that "[t]he payment of any part of the principal or interest of any obligation or liability founded on a written instrument" tolls the running of time under Florida Statute section 95.11(2)(b). Because the May 30, 2018, payment was made within five years of the maturity date, the Creditor argues that the payment extended the statute of limitations to May 30, 2023, per section 95.051(1)(f). (Id. ¶ 14.) Thus, since the Claim was filed before May 30, 2023, the Creditor argues the Claim is not time-barred. (Id.)
In support, the Creditor relies on Cadle Co. v. McCartha, 920 So.2d 144, 144 (Fla. 5th DCA 2006), in which the defendant executed a loan guarantee on May 16, 1996, and was subsequently sued on the guaranty on November 30, 2004. The defendant moved for summary judgment based on the statute of limitations in section 95.11(2)(b), and the plaintiff argued that the limitations period was tolled under Section 95.051(1)(f) by payments made on the loan on May 22 and June 13, 2000. Cadle Co. v. McCartha, 920 So.2d at 145. The court agreed with the plaintiff, holding that the action was timely filed on November 30, 2004, because "the statute was tolled through the date of the final payment, which was made on June 13, 2000." Id. at 146. The court observed that Section 95.051(1)(f) "appears to treat a partial payment as the legal equivalent of a promise to pay. By making partial payments on the debt, the debtor recognizes and signifies the intent to honor the obligation." Id. The creditor is only placed on notice that the debtor will no longer honor the obligation when the debtor stops making payment. Id. Thus, "under section 95.051(1)(f), Florida Statutes, the five-year statute of limitations applicable to actions founded on a written instrument, is 'tolled' through the date of any partial payment." Id. See also Benfield v. Everest Venture Grp., Inc., 801 So.2d 1021, 1022 (Fla. 2d DCA 2001) (partial payments on a promissory note tolled the limitations period under section 95.051(1)(f) such that suit was timely when filed within five years of the final partial payment); Hosp. Constructors Ltd. ex rel. Lifemark Hosps. of Fla., Inc. v. Lefor, 749 So.2d 546, 547-48 (Fla. 2d DCA 2000) (section 95.051(1)(f) extended the statute of limitations for an action for nonpayment of a guaranty through five years after the date of the last payment when the last payment was made within the original five years' limitations period). In Baez v. LTD Financial Services, L.P., the Eleventh Circuit likewise explained that "[u]nder Florida Statute § 95.051, a partial payment . . . will toll the statute of limitations for non-time-barred debt." 757 Fed.Appx. 842, 844 (11th Cir. 2018) (emphasis in original). See also Branch Banking & Tr. Co. v. Crystal Ctr., LLC, No. 8:15-CV-1462-T-30EAJ, 2015 WL 4756961, at *1-2 (M.D. Fla. Aug. 11, 2015) (statute of limitations tolled by section 95.051(1)(f) to five years after partial payment that was made within five years of the note's maturity date).
In the Eleventh Circuit, "Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority." 11th Cir. R. 36-2.
Here, partial payment was made on May 30, 2018, within five years of the Claim's maturity date of March 5, 2016. (Doc. No. 52 ¶ 12; Doc. No. 89 ¶ 2; Claim 9-2 at 5, 9.) Thus, section 95.051(1)(f) extended the statute of limitations on the Claim for five years from May 30, 2018, through May 30, 2023. Cadle Co. v. McCartha, 920 So.2d at 146; Benfield v. Everest Venture Grp., Inc., 801 So.2d at 1022; Hosp. Constructors Ltd. ex rel. Lifemark Hosps. of Fla., Inc. v. Lefor, 749 So.2d at 547-48; Branch Banking & Tr. Co. v. Crystal Ctr., LLC, No. 8:15-CV-1462-T-30EAJ, 2015 WL 4756961, at *1-2. As such, the Claim is timely. Accordingly, it is
ORDERED:
The Objection (Doc. No. 52) is OVERRULED.
Attorney Gary J. Lublin is directed to serve a copy of this order on interested parties who are non-CM/ECF users and file a proof of service within three days of entry of this order.