Statute of Limitations on a Florida Promissory Note

Statute of Limitations on a Florida Promissory Note

Statute of Limitations on a Florida Promissory Note

The Statute of Limitations on a Florida promissory note is governed by case law and by Florida Statute. Specifically, Florida Statute 95.11(2)(b) governs limitations other than for the recovery of real property, such as for promissory notes. First, in legal terms, the Statute of Limitations on a Florida promissory note provides that “a legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond…” [shall be brought within five years from the date of the accrual of the action]. In layman’s terms, the Statute of Limitations on a Florida promissory note states that an action generally accrues when the note/contract is breached by a nonpayment of monies owed. This principle (not principal!) is based on the aforementioned Statute and case law precedent. Essentially, Florida law provides a five year Statute of Limitations to sue on a promissory note to institute and satisfy the debt. A commonly cited case that addresses the running of the Statute of Limitations on a Florida promissory note is a Florida bankruptcy case, In Re Whitaker, as discussed below.

How Long is the Statute of Limitations on a Florida Promissory Note?

Under Florida law, on obligations founded on written instrument, upon accrual of cause of action, such as defaulting on promissory note, statute of limitations period begins to run. The Statute of Limitations on a Florida promissory note according to the Court in In re Whittaker, Bkrtcy, N.D. Fla. 1994, 177 B.R. 360, argues that under the Florida law on limitations periods for notes payable on demand, demand on promissory note would be fixed as five years after date of note, even if no demand had actually been made on note, where there were no special circumstances that would warrant extending “reasonable time” for demand beyond period provided for by statute of limitations. Id.

To the advantage of a Florida litigant seeking to collect on a promissory note that is potential beyond the five year statute of limitations on a Florida promissory note, another Florida Statute allows for a payment to toll the time. Florida Statute 95.051(a)(f) states that “The running of the time under any statute of limitations… is tolled by: … (f) [t]he payment of any part of the principal or interest of any obligation or liability founded on a written instrument.” This means that if a payment is made by the obligor (debtor), it may toll the running of the Statute of Limitations and therefore allow the suit to collect to move forward.

An obligor (person obligated to repay on a note) is not without defenses, and the Statute of Limitations is likely a primary affirmative defense. Keep in mind, if the SoL is not argued in the pleadings as a defense, the obligor will likely forfeit a valid defense and could open herself up to considerable liability.

 

 

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