       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         ADRIANNE NOLDEN,
                             Appellant,

                                   v.

 SUMMIT FINANCIAL CORPORATION, a Florida corporation, DAVID
 WHEELER, ALVIN WHEELER, ART RICHARDSON, and HOLCOMBE
 USA, INC., a Florida corporation d/b/a AutoShow Sales and Service,
                              Appellees.

                            No. 4D17-1040

                            [April 25, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos Augusto Rodriguez, Judge; L.T. Case No. CACE-
14-009704 (14).

  Kenneth J. Kavanaugh of Kenneth J. Kavanaugh, P.A., Davie, for
appellant.

   William J. Denius of Killgore, Pearlman, Semanie, Denius & Squires,
P.A., Orlando, for appellees, Summit Financial Corporation, a Florida
corporation, David Wheeler, Alvin Wheeler and Art Richardson.

    Robert E. Sickles and Jason S. Lambert of Broad and Cassel, Tampa,
for appellee, Holcombe, USA, Inc., d/b/a AutoShow Sales and Service.

GROSS, J.

   This lawsuit arose out of Adrianne Nolden’s financed purchase of a
used car. Central to her five-count complaint was the claim that the
27.81% interest charge under the purchase contract exceeded the 18%
interest rate limit imposed by Florida’s usury statute. We hold that this
case is controlled not by the usury statute but by Chapter 520, Florida
Statutes (2009), and affirm the summary final judgment for the defendants
entered by the circuit court.

   In her third amended complaint, Nolden (the “buyer”) sued Summit
Financial Corporation and two of its employees.     She later added
Holcombe, USA, Inc. (d/b/a AutoShow Sales and Service) as a fourth
defendant. The complaint sets forth causes of action related to the
purchase of a 2004 Pontiac Grand Prix from AutoShow and the
repossession of the car in 2013 by Summit. The buyer sued both Summit
Financial and AutoShow for criminal usury and for violations under
Chapter 772, Florida Statutes (2009), the Civil Remedies for Criminal
Practices Act. § 772.101, Fla. Stat. (2009).
   Summit Financial and AutoShow answered the complaint setting forth
several defenses including:

   (1) A contract for the purchase of a used automobile with a deferred
   payment plan is not subject to Florida’s general usury statute; and

   (2) The interest charged is allowable under the Motor Vehicle Retail
   Sales Finance Act which governs the transaction.

  Summit Financial moved for summary judgment.             Attached to the
motion was an employee’s affidavit. He attested that:

   •   The buyer entered into a Retail Installment Sale Contract for the
       purchase of the car. The contract gave the buyer the option of
       buying the car for cash or on credit – by signing the contract, the
       buyer chose to buy the car on credit.

   •   The contract was assigned to Summit Financial, which is an
       automotive finance company.

   •   The contract was not a contract for the loan of money. The contract
       was for the purchase of the car.

    A copy of the contract (the “contract”) was attached to the employee’s
affidavit. The contract is titled:

                 RETAIL INSTALLMENT SALE CONTRACT
                     SIMPLE FINANCE CHARGE

    The parties to the contract are Nolden as the buyer and AutoShow as
the seller. The contract is a pre-printed form with blanks filled in setting
forth the details of the transaction. The first page provides an “itemization
of amount financed” including cash price of the car ($11,694.10); the
buyer’s down payment ($2,500); and “other charges” that are itemized and
added to the price (totaling $2,688.91). The total “amount financed” is
listed as $11,883.01.


                                    -2-
   The contract states that the buyer may purchase the car for cash or on
credit. If the buyer chooses to buy on credit, the contract sets forth the
financing terms that will apply:

       You, the Buyer . . . may buy the vehicle below for cash or on
       credit. By signing this contract, you choose to buy the vehicle
       on credit under the agreements on the front and back of this
       contract. You agree to pay the Seller-Creditor . . . the Amount
       Financed and Finance Charge in U.S. funds according to the
       payment schedule below. We will figure your finance charge
       on a daily basis at the Base Rate of 27.81% per year. The
       Truth-In-Lending Disclosures are part of this contract.

Truth-In-Lending Disclosures appear on the first page:

                    FEDERAL TRUTH-IN-LENDING DISCLOSURES
    ANNUAL          FINANCE        Amount             Total of             Total Sale
 PERCENTAGE         CHARGE         Financed          Payments                 Price
      RATE          The dollar  The amount of    The amount you         The total cost of
   The cost of     amount the   credit provided will have paid after   your purchase on
 your credit as     credit will    to you or    you have made all       credit, including
  a yearly rate.    cost you.   on your behalf.     payments as            your down
                                                     scheduled             payment of
                                                                       $ 2,500.00       is
  27.810       %   $ 8,163.71    $ 11,883.01        $ 20,046.72          $ 22,546.72
                          Your Payment Schedule Will Be:
   Number of        Amount of        When Payments
   Payments         Payments              Are Due
      48               417.64 Monthly beginning   03/06/09


   The contract provides that it is assignable, and the copy of the contract
in evidence shows that it was assigned to Summit Financial.

    AutoShow also moved for summary judgment.        Its motion was
supported by the affidavit of its office manager, who attested to the
following relevant facts:

   •   The buyer purchased the car from AutoShow in an installment sales
       transaction and the buyer executed a Retail Installment Sales
       Contract.

   •   AutoShow is a licensed motor vehicle retail installment seller.

   •   The buyer was given a copy of the contract at the time of her
       purchase.



                                          -3-
    •   After the buyer purchased the car, the contract was sold to Summit
        Financial.

    AutoShow also filed two certificates issued by the Florida Office of
Financial Regulation. The certificates demonstrate that AutoShow was
licensed to conduct business as a “Motor Vehicle Retail Installment Seller”
under Chapter 520, Florida Statutes, and Summit Financial was licensed
to conduct business as a “Sales Finance Company” under Chapter 520.

  The buyer filed depositions of witnesses and her own sworn statement,
none of which raise an issue of material fact.

The Circuit Court Properly Ruled that the Contract Was Not Subject
                to Florida’s General Usury Statute

    Summary judgment was properly granted on two grounds. First, the
“legal rate” of interest set forth in the Motor Vehicle Retail Sales Finance
Act is the rate applicable to this transaction. Second, the extension of
credit for the purchase of goods is not a “loan” under the usury statute.

    Usury requires proof of four elements: (1) an express or implied loan;
(2) a repayment requirement; (3) an agreement to pay interest in excess of
the legal rate; and (4) a corrupt intent to take more than the legal rate for
the money loaned. Oregrund Ltd. P’ship v. Sheive, 873 So. 2d 451, 456
(Fla. 5th DCA 2004). The buyer, as the party claiming usury, has the
burden of establishing its elements. Video Trax, Inc. v. NationsBank, N.A.,
33 F. Supp. 2d 1041 (S.D. Fla. 1998).

  Here, the parties disputed the third element, the “legal rate” of interest,
and the first element, whether the transaction was a “loan.”

           I. The “Legal Rate” of Interest is Set Forth in the Motor
                      Vehicle Retail Sales Finance Act

   The buyer argues that the legal rate of interest that applies to her
transaction is set forth in the usury statute, Chapter 687, Florida Statutes
(2009). AutoShow and Summit Financial contend, as the trial court ruled,
that the legal rate of interest for this transaction is set forth in the Motor
Vehicle Retail Sales Finance Act, Chapter 520, Florida Statutes (2009). 1
The trial court’s finding is correct because (1) the contract is a retail


1 All references are to the 2009 version of the statute, the version in effect when
the contract was executed. See Holland v. Gross, 89 So. 2d 255, 258 (Fla. 1956).

                                       -4-
installment sales contract; and (2) under the rules of statutory
construction, the more specific statute controls over the general usury
statute.

    A. This Transaction Resulted in a Retail Installment Sales Contract

   In order for AutoShow and Summit Financial to charge the interest rate
permitted by Chapter 520, it was first necessary to establish that the
transaction resulted in a “Retail Installment Sales Contract.” The trial
court’s finding on this issue is supported by the following undisputed
evidence:

    1. The title of the document is Retail Installment Sale Contract. The
    title appears in bold capital letters on the first page.

    2. The agreement itself complied with the statutory requirements
    imposed on Retail Installment Sales Contracts.          The agreement
    includes the requisite “notice to buyer” section and a separate written
    itemization of the amount financed. § 520.07, Fla. Stat. (2009).

    3. The terms of the agreement fit squarely within the statutory
    definition of a Retail Installment Sales Contract:

       “Retail installment contract” . . . means an agreement, entered
       into in this state, pursuant to which the title to, or a lien upon
       the motor vehicle, which is the subject matter of a retail
       installment transaction, is retained or taken by a seller from
       a retail buyer as security, in whole or in part, for the buyer’s
       obligation.

       § 520.02(17), Fla. Stat. (2009).

    4. AutoShow and Summit Financial were licensed under Chapter 520.
    The buyer met the definition of a buyer as that term is defined by
    Chapter 520. 2



2 AutoShow was licensed as a “motor vehicle retail installment seller,” “a person
engaged in the business of selling motor vehicles to retail buyers in retail
installment transactions.” § 520.02(11), Fla. Stat. (2009). Summit Financial was
licensed as a “sales finance company,” “a person engaged in the business of
purchasing retail installment contracts from one or more sellers.” § 520.02(19),
Fla. Stat. (2009). The buyer was a “retail buyer,” “a person who buys a motor
vehicle from a seller not principally for the purpose of resale, and who executes

                                      -5-
    5. The parties’ conduct under the agreement supports the court’s
    finding that it was a Retail Installment Sales Contract. The buyer
    received a car. The seller received a piece of paper evidencing the
    buyer’s obligation to pay for the car in installments with interest. The
    seller also retained a lien as security for the buyer’s obligation.

    For these reasons, the trial court’s finding that the contract was a retail
installment sales contract is supported by the title of the document, the
language of the document, the terms of the document, the characteristics
of the parties, and the conduct of the parties.

   B. Rules of Statutory Construction Compel the Conclusion That the Legal
Interest Rate Set Forth in Chapter 520 Applies to This Transaction, and Not
the 18% Interest Rate Contained in the Usury Statute

   Section 520.08 identifies four classes of vehicles and sets forth a sliding
scale which allows the imposition of a higher finance charge for
transactions involving older vehicles. For the buyer’s car, Chapter 520
dictated that the finance charge “shall not exceed . . . $17 per $100 per
year.” § 520.08(1)(d), Fla. Stat. (2009). In lieu of a “finance charge,”
Chapter 520 permits imposition of “simple interest” so long as the simple
interest rate does not exceed the finance charge permitted by section
520.08 on the unpaid balance. § 520.085, Fla. Stat. (2009). Here, it is
undisputed that the interest rate of 27.810% was permissible under
Chapter 520. 3




a retail installment contract in connection therewith. . . .” § 520.02(16), Fla. Stat.
(2009).
3The formula for calculating the finance charge in terms of dollars per $100 per
year is

       Finance Charge        ÷    Amount Financed         = Finance Charge
       Length of time                $100                  per $100 per year
       Financed

See In re Corcoran, 268 B.R. 882, 888 (M.D. Fla. 2010). Plugging in the numbers
in this case, leads to the conclusion that the finance charge in this case was
$16.48 per $100 per year, which is less than the $17.00 per year allowed by
section 520.08(1)(d):

       $8163.71          ÷       $11,883.01                  = $16.48/year
        4.17 years                 $100

                                        -6-
   Under the usury statute, interest exceeding 18% is usurious. § 687.02,
Fla. Stat. (2009). Therefore, the usury statute conflicts with Chapter 520
which allows the imposition of higher interest rates.

   “When reconciling statutes that may appear to conflict, the rules of
statutory construction provide that a specific statute will control over a
general statute. . . .” Fla. Virtual Sch. v. K12, Inc., 148 So. 3d 97, 102 (Fla.
2014). Thus,

      Under basic statutory principles, when two statutes embrace
      the same subject and produce contradictory results, we are
      compelled to construe the statutes so that the specific statute
      is given effect and the general statute is given effect only to
      the extent that it does not contradict the specific statute.

Lunohah Invs., LLC v. Gaskell, 158 So. 3d 619, 621 (Fla. 5th DCA 2013).

    Here, the two statutes embrace the same subject (allowable interest
rates), and produce contradictory results (what is usurious under Chapter
687 is permissible under Chapter 520). For this reason, the trial court
was “compelled” to give effect to the more specific statute (Chapter 520)
while giving effect to the more general statute (the usury statute) only to
the extent the general statute did not contradict the specific statute.
Lunohah, 158 So. 3d at 621; see also A to Z Props., Inc. v. Fairway Palms
II Condo. Assoc., Inc., 137 So. 3d 453 (Fla. 4th DCA 2014).

   Because the statutes covered the same subject yet reached
contradictory results, the circuit court properly applied the rules of
statutory construction and concluded that the interest rate set forth in
Chapter 520 governs this retail installment transaction involving the sale
of a motor vehicle. The interest charged did not exceed the permissible
interest rate allowed under Chapter 520 and the contract was not usurious
under Chapter 687. The defendants were entitled to entry of summary
judgment.

   II. The Agreement in This Case Is Not a “Loan” Under the Usury Statute

   The defendants were also entitled to entry of summary judgment
because the transaction in this case was not a “loan” under the usury
statute.   The buyer argues that the usury statute is clear and
unambiguous and that it applies to all contracts charging interest unless
the transaction is specifically excluded under Chapter 687. The statute,
however, expressly applies only to “contracts for the payment of interest


                                      -7-
upon any loan, advance of money, line of credit, or forbearance to enforce
the collection of a debt.” § 687.02(1), Fla. Stat. (2009).

    “The law is well settled that usury can only attach to a loan of money,
or to the forbearance of a debt. . . .” Davidson v. Davis, 52 So. 139, 139
(Fla. 1910); see also Nelson v. Scarritt Motors, 48 So. 2d 168, 168–69 (Fla.
1950) (“[O]ur usury statutes have generally been construed as if directed
to contracts for the loan of money.”). In order to determine whether a
transaction is a “loan” within the meaning of the usury statute, courts look
to the substance of the transaction. Oregrund, 873 So. 2d at 457.

   Florida courts have repeatedly held that contracts to secure the price
of property sold are not governed by general usury laws.

      [T]he usury statutes condemn usury charges made as an
      incident to a loan of money. We have held that the same rule
      does not apply to a transaction representing the purchase
      price of property.

Perry v. Beckerman, 97 So. 2d 860, 862 (Fla. 1957) (citing Davidson, 52
So. at 139 (contract for sale of land); Scarritt Motors, 48 So. 2d at 168
(contract to purchase used car “not amenable to the charge of usury.”)).

   A 1958 Attorney General Opinion recognized that sellers and finance
companies qualified under Chapter 520 receive “rights and privileges”
including the ability to enter contracts that are not “amenable to the
general usury statutes.” Op. Att’y Gen. Fla. 58-56 (1958).

    The third district relied upon the Attorney General Opinion in B & D,
Inc. of Miami v. E-Z Acceptance Corp., 186 So. 2d 29 (Fla. 3d DCA 1966).
B & D involved the enforceability of retail installment sales contracts for
used motor vehicles where the contracts charged interest in excess of that
allowed by the general usury statute. The court found that the contracts
“are not subject to the general usury statutes.” Id. at 30.

    Taylor v. First Nat’l Bank of Miami, 270 So. 2d 379 (Fla. 3d DCA 1972),
is even more factually on point. There, the buyer defaulted on a motor
vehicle retail installment sales contract. Id. at 380. The buyer’s car was
repossessed and sold, and the assignee of the contract sued the buyer for
the deficiency. Id. The buyer argued that the contract was usurious “on
its face.” Id. The court disagreed, finding that the contract was controlled
by Chapter 520 and that the finance charges were not in excess of those
authorized by section 520.08. Id. (citing Scarritt Motors, 48 So. 2d at 168).


                                    -8-
    The buyer has offered no legal basis to distinguish this case from B &
D, Taylor, and Scarritt Motors. On this record, the circuit court properly
found that the contract in this case, to secure the price of property sold,
is not subject to Florida’s general usury statutes. It is within the purview
of the legislature to decide what interest rates are permissible; Chapter
520 contains a legislative determination that some higher risk loans are
entitled to a higher interest rate than the one allowed by the general usury
statute. There are no disputed material facts that preclude the entry of
the summary judgment below.

Section 687.12, Florida Statutes (2009), Did Not Require the Words
      “Chapter 520” to Appear on the Face of the Agreement

   We briefly address the buyer’s argument that the words “Chapter 520”
were required to appear on the face of the agreement to exempt the
agreement from the usury statute. This argument is based on a
misapplication of section 687.12, Florida Statutes (2009), known as the
“parity exception.”

   Section 687.12 is entitled “Interest rates; parity among licensed lenders
and creditors.” Under that section, licensed lenders are permitted to take
advantage of interest rates permitted by a different class of licensed lender.
South Pointe Dev. Co. v. Capital Bank, 573 So. 2d 939, 941 (Fla. 3d DCA
1991). For instance, a bank licensed under chapter 658 can charge the
same interest rate as a savings and loan association licensed under
chapter 665 so long as the bank complies “with all the requirements
imposed on such a lender for the type of loan it is making,” and indicates
on the instrument “the specific chapter of the Florida Statutes authorizing
the interest rate charged.” Id. (quoting § 687.12(4)).

    The parity exception is not applicable to the transaction in this case
because the seller here was licensed under Chapter 520 and was entitled
to enjoy the “rights and privileges of said statute” by virtue of its license
under that chapter. Op. Att’y Gen. Fla. 58-56 (1958). One of those rights
was the right to charge interest in an amount allowed under Chapter 520
even where that interest rate exceeds the amount permitted by the usury
statute. In this transaction, the lender was not trying to take advantage
of a rate authorized for a different type of lender under a different chapter
of the Florida Statutes.

   Only lenders “making loans . . . at a rate of interest that, but for this
section, would not be authorized” are required to indicate on the
instrument “the specific chapter of the Florida Statutes authorizing the
interest rate charged.” § 687.12(4), Fla. Stat. (2009) (emphasis added).

                                     -9-
AutoShow was not required to write “Chapter 520” on the agreement
because, as a licensed seller under Chapter 520, AutoShow did not need
to rely on the parity exception to charge the interest rate allowed by
Chapter 520.

  Affirmed.

WARNER and LEVINE, JJ., concur.

                         *          *      *

  Not final until disposition of timely filed motion for rehearing.




                                  - 10 -
