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Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 99417
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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had a private mortgage holder on our property with a 2 year

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had a private mortgage holder on our property with a 2 year arm interest only. We paid our payments on time when the note came due no one would refi because the value had dropped by 20,000. mortgage holder filed a foreclosure tru an attorney we tried to settle by extending the loan a year to give the property time to come up in value. The mortgage holder proceeded with the filling . We were able to sell the property before the actual foreclosure took place. We were paying an interest only loan. once the holder accelerated the note we stopped making payments as none were due. our monthly payments were 325.00 at 5% interest on balance of $70,000 when we closed on the house she wanted an $80,000 payoff to sign . We feel we were overcharged . Can we file a small claims lawsuit to recover the excessive interest we were charged
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my reply.

I am very sorry for your situation. The answer is tentatively yes.

To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.

Without getting into the merits of the argument, if you feel that you were overcharged, then there is a cause of this - unjust enrichment and money had and received.

The essential elements of a claim for unjust enrichment are: (1) a benefit conferred upon a defendant by the plaintiff, (2) the defendant's appreciation of the benefit, and (3) the defendant's acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof. See Swindell v. Crowson, 712 So.2d 1162, 1163 (Fla. 2d DCA 1998). While normally used in contracts for labor, it is possible to apply this here, arguably.

The common law count known as "money had and received" constitutes a remedy at law to recover money erroneously paid or received by a defendant when to permit the defendant to keep the money would unjustly deprive the plaintiff of his ownership of the money. Sharp v. Bowling, 511 So. 2d 363 - Fla: Dist. Court of Appeals, 5th Dist. 1987 (internal citations omitted).

The two have since become fused in a way and often, unjust enrichment is seen as the modern version of money had and received. However, bringing both would not hurt and the Court can make a decision on both/either. All that matter is that one cause is won by its elements being proven.

For small claims in Florida, see here. However, small claims court is for $5,000 or less. Anything more would be filed in County or Circuit Court. If this is the case, and you want to know more about how to file, please let me know what COUNTY this is in.

I hope this helps and clarifies. Gentle Reminder: Use the reply button to keep chatting, or please rate and submit your rating when we are finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correctt. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith.
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Customer: replied 2 years ago.

Thank you, I plan to proceed with a small claims action . the amount of my interest only payments for the year were 3900 and as there were none due once the note was accelerated the mortgage holder received an additional $6100 without going to court . could you tell me how much interest they were entitled to there is not a default rate in my contract just says the max allowed . I live in orlando fl.

No more than 18% in most situations, unless the contract specifies less, R.

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