Florida/Georgia Personal Injury & Workers Compensation

...loses no loss or change of position in reliance on this agreement. At best, the purported fraud was nothing more than a promise to modify the subject loan, an oral credit agreement as contemplated by Florida’s Banking Statute of Frauds, defined in section 687.0304, Florida Statutes (2010). See § 687.0304(l)(a), Fla....

...d in the inducement. Chase asks this Court to dismiss Count II because Plaintiffs claim is barred by the Bank Statute of Frauds which prohibits actions on credit agreements unless the same is in writing, signed by the creditor and debtor. Fla. Stat. § 687.0304....

...e of Frauds. Specifically "a debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor." Fla. Stat. § 687.0304....

...1] after Brenowitz defaulted on a promissory note owed to the Bank. We reverse because we find there remain material factual disputes; in so doing we must construe, differently from the trial court, the "new" statute of frauds provision contained in section 687.0304, Florida Statutes (1989)....

...tual conflicts which should have precluded summary judgment. The Bank, however, pressed the trial court to a conclusion that the summary judgment was mandated in any event because Brenowitz's affirmative defenses were rendered legally inoperative by section 687.0304, Florida Statutes (1989), which states the following: 687.0304 Credit agreements....

...ully disclosed, and likewise, she could not have relied upon any information contrary to the signed written agreement. Finally, Countrywide maintains that Florida's statute of frauds *1341 prohibits exactly these sorts of contentions. See FLA. STAT. § 687.0304(2)....

...Any representations were required to be in writing in order to be enforceable because, under the statute of frauds, parol evidence is not admissible to contradict the unequivocal written terms of an otherwise unambiguous credit agreement. FLA. STAT. § 687.0304(2)....

...All of the damages claimed by Puff `N Stuff and the Dietels in their affirmative claims were based on the alleged failure of FTB to fully and timely provide funding pursuant to verbal agreements to do so. We hold that the trial judge was correct in applying section 687.0304(2), Florida Statutes (1989) in accordance with its plain meaning— i.e., the debtors in this case cannot maintain their actions which are based, according to the allegations and proof, on an oral promise to extend credit....

...PETERSON, C.J., and DAUKSCH, HARRIS and ANTOON, JJ., concur. HARRIS, J., concurs specially with opinion. GRIFFIN, J., dissents with opinion, with which W. SHARP, GOSHORN and THOMPSON, JJ., concur. *1178 HARRIS, Judge, concurring specially: I concur with Judge Cobb's opinion, which is based on section 687.0304(2), Florida Statutes—a banking "statute of frauds." I write because the issue relating to the economic loss rule deserves further discussion....

...dvance all of the funds agreed to in a timely manner. One would think that appellants would therefore sue the bank on the "master loan agreement"—that is, the original oral agreement to loan $1,025,000 in a timely manner. But the rub, of course, is section 687.0304(2), which requires that before a loan commitment can be enforced, it must be in writing....

...ased on provisions, expressed or implied, in the contract, then this analysis fails. Hopefully the *1181 supreme court will give us further guidance in this matter. GRIFFIN, Judge, dissenting. I respectfully dissent from the majority opinion because section 687.0304(2), Florida Statutes, is not a bar to appellant's fraud in the inducement claim....

...s were advanced. Principal among the grounds raised in the motion for summary judgment was that their claims were based on a series of oral promises and representations and that the claims were therefore barred under the "banking statute of frauds." Section 687.0304(2), Florida Statutes (1989), provides: A debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and debtor....

...p between the parties. [1] The issue is whether the lower court could correctly grant summary judgment on the counterclaim and third-party claims filed by the Dietels and Puff `N Stuff on the ground that any such claim is barred by the provisions of section 687.0304(2), the "banking statute of frauds." The impetus for enacting section 687.0304(2) was explained in Brenowitz v....

...agreement, the subsequent violation of which is actionable against the lender. Id. at 342, citing John H. Hickey, Credit Agreements Required in Writing: The New Statute of Frauds, LXIV no. 6 Fla. B.J. 69 (June 1990). [2] *1184 By its express terms, section 687.0304(2) does not preclude an action for acts of fraud on the part of a bank that induce a party to rely to their detriment on knowingly false statements of fact....

...ions "on a[n oral] credit agreement," as defined. The statute defines a "credit agreement" as "an agreement to lend or forbear repayment of money, goods, or things in action, to otherwise extend credit, or to make any other financial accommodation." § 687.0304(1), Fla....

...ed by the statute. [3] A misrepresentation of fact made to induce a borrower to make a loan is not embraced by the statute. The legislative history for this statute confirms its intended scope. The legislative history to House Bill 878, which became section 687.0304(1), expressly provides that "statutes such as the one proposed impact only one area of lender liability and will not eliminate lender liability suits." The legislative history to a companion bill, Senate Bill 830, further provides that "the legislation only impacts one area of lender liability....

...modation," but was action to show no agreement existed). [4] Based on this language, one commentator has suggested that the statute may have been intended to prohibit only claims for breach of contract. See Jerry M. Gewitz, Impact of Florida Statute § 687.0304 on Lender Liability Actions, LXVI, 6 Fla....

...And you could offer the keys back because you owned the property, you were the owner, you were the legal representative of the borrower? A. Yes. And your question, counsel? (Emphasis added). [3] We need not concern ourselves with the application of the bank statute of frauds, section 687.0304, Florida Statutes (1999), due to our conclusion that no enforceable contract existed....

...In this case, the alleged telephonic notice of exercise of Duke Realty's option is directly contrary to the written provisions of the contracts. But the trial court's correct application of the plain language of the parties' agreements is not the only basis for finding the counterclaims legally insufficient. *903 Section 687.0304, Florida Statutes (2007), requires that a borrower may not take legal action on "an agreement to lend or forbear repayment of money, goods, or things in action, to otherwise extend credit, or to make any other financial accommodation...

...Coral Reef conceded throughout that it had no written agreement expressing consideration, setting forth the terms allegedly modified, and signed by the parties. Coral Reef's claim is thus also legally insufficient under what has been called "Florida's Banking Statute of Frauds," section 687.0304....

...In this case, the borrowers admitted default in writing and hoped for mercy. Having signed over 100 pages of single-spaced legal documents reviewed by their attorneys, Coral Reef's principals could not ignore the requirements of those documents and section 687.0304....

...5 (new lender reasonably relied on original lender's promise to release part of the land from the mortgage upon payment of a stated sum). Duke's more substantial argument is that promissory estoppel cannot be employed where a promise is barred by the bank statute of frauds, which is section 687.0304, Florida Statutes (2005)....

...The bank statute of frauds requires credit agreements to be in writing. A credit agreement includes "an agreement to lend or forbear repayment of money, goods, or things in action, to otherwise extent credit, or to make any other financial accommodation." § 687.0304(1)(a), Fla....

...The trial court granted Barnett's motion for summary judgment as to the appellants' counterclaim. The Griffiths argue that the trial court's order was improper in light of its pending motion for protective order, and that the bank was not entitled as a matter of law to summary judgment. Barnett contends that section 687.0304, Florida Statutes (1989), bars any action because there was no written credit agreement....

...Subsequent to the order entered by the court below from which this appeal is taken, this court issued an opinion in Brenowitz v. Central National Bank, 597 So.2d 340 (Fla. 2d DCA 1992). Brenowitz holds that the affirmative defenses of subsequent *692 waiver, estoppel and bad faith are outside the operation of section 687.0304....

...ch of fiduciary relationship and fraud are all founded upon their assertions that the banking officer made statements or agreements concerning the extension of credit. These alleged actions are specifically excluded as specified in subsection (3) of section 687.0304....

...the line using different collateral. Shortly after receipt of the letter, Collins alleged, he executed the hypothecation and assignment agreements. The Bank argues that the trial court properly dismissed the complaint and amended complaint and cites section 687.0304, Florida Statutes (1989) which provides in part: (2) CREDIT AGREEMENTS TO BE IN WRITING — A debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor. Section 687.0304 "restricts the ability of the borrower to bring suit upon oral credit agreements......

...matively and clearly shows the conclusive applicability of such defense to bar the action). Because Collins has sufficiently alleged, in Count I of the original complaint, an agreement between the parties and a writing that meets the requirements of section 687.0304, the court erred in dismissing Count I....

...that *461 will allow Collins any remedy for the bank's failure to retain titles for his benefit. The problem, says the bank, is that its "proposal" was not signed by Collins, so the agreement does not comply with the new banking "statute of frauds." § 687.0304, Florida Statutes....

...CD because you failed to do what you promised." What makes Collins the plaintiff is that they were holding the CD. Although I fully concur in the opinion of Judge Peterson that the combination of writings in this case can satisfy the requirements of section 687.0304, Florida Statutes, there is another reason why the bank's position is vulnerable in this case....

...Neither can it be determined, if the letter was an offer, whether it was accepted. These issues also must be resolved as the case proceeds past the pleading stage. [1] Breach of contract was the theory pleaded in the original complaint which was dismissed on the basis of section 687.0304, Florida Statutes....

...the property at the foreclosure sale. J Square eventually (almost four years later) filed an action against Bank and Regner alleging breach of contract and fraud against Bank and fraud against Regner. The defendants moved to dismiss on the basis of section 687.0304, Florida Statutes (sometimes known as the Bank Statute of Frauds), and the opinion of this court in Puff `N Stuff of Winter Park, Inc. v. Bell, 683 So.2d 1176 (Fla. 5th DCA 1996). The trial court dismissed the action against both defendants and this appeal ensued. As its first point on appeal, J Square argues that section 687.0304 does not bar enforcement of the agreement between itself and Bank because its full performance under the contract (i.e., payment of the Delta judgment) removes this case from the applicability of the statute....

...ach of contract against Bank. J Square also argues that its counts against Bank and Regner based on fraud in the inducement are not barred because the claims are essentially defensive in nature. While we agree that the fraud claims are not barred by section 687.0304 (since its applicability has been negated by the doctrine of performance), we do not agree that these claims are essentially defensive in nature....

...Consequently, if the oral modifications [purchaser] allegedly made were not made before or contemporaneously with the written contract, the parol evidence rule would not preclude the admission of such extrinsic evidence. The Race, 573 So.2d at 410. Finally, while Section 687.0304(2), Florida Statutes (2005), provides that a debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the cred...

...te does not apply to affirmative defenses. See Eboni Beauty Academy v. AmSouth Bank of Florida, 761 So.2d 481 (Fla. 5th DCA 2000). In Maynard v. Central National Bank, 640 So.2d 1212, 1213 (Fla. 5th DCA 1994), for example, this court held that while section 687.0304 would preclude a debtor from bringing a claim based on an oral credit agreement, it would not prevent a debtor from asserting affirmative defenses based on post-execution waiver, estoppel or bad faith. Generally, such defenses arising subsequent to the entry of the agreement are outside the operation of section 687.0304....

...Barnett Bank of Naples, 603 So.2d 690, 692 (Fla. 2d DCA 1992), the Second District Court of Appeal recognized that estoppel, fraud and other available affirmative defenses may be asserted pursuant to Fla. R. Civ. P. 1.110(d), and are not barred by section 687.0304....

...Paladin Financial argues that the court should nevertheless find a commitment by Casey Mortgage by looking at all the documents and circumstances that occurred on February 21 and the fact that Casey Mortgage in fact funded the loan on March 3. Florida's Banking Statute of Frauds, Section 687.0304(2), Florida Statutes, however, provides that: A debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor....

...[10] "Although the statute does not in terms require that the debtor and the creditor sign the writing at one sitting, we think the statute contemplates that the writing should be signed by both parties as part of the same transaction." Collins v. Citrus Nat'l Bank, 641 So.2d 458, 459 (Fla. 5th DCA 1994) [referring to § 687.0304(2), Fla.Stat.]....

...ctrine of estoppel. Their third affirmative defense alleged that CNB committed fraud upon them with respect to a promissory note. CNB responded to the Maynards' answers with a motion to strike the affirmative defenses. CNB relied on the authority of section 687.0304, Florida Statutes (1991) which provides in pertinent part as follows: (2) Credit agreements to be in writing....

...— A debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor. The trial court granted CNB's motion based upon section 687.0304, Florida Statutes....

...CNB then filed a motion for summary judgment contending that since the Maynards' affirmative defenses were stricken, there are no genuine issues of material fact and that CNB is entitled to summary judgment as a matter of law. The trial court granted CNB's motion for summary final judgment. Section 687.0304 prevents a debtor from bringing a claim based on an oral credit agreement but does not prevent a debtor from asserting affirmative defenses based on an oral credit agreement. Brenowitz v. Central Nat'l Bank, 597 So.2d 340, 343 (Fla. 2d DCA 1992). The Second District Court of Appeal in Brenowitz determined that affirmative defenses of subsequent waiver, estoppel, and bad faith are outside of the operation of section 687.0304, Florida Statutes....

...The president of the bank acknowledged that the past due interest had been brought current subsequent to the meeting but stated that this did not cure the default status of the loan. The bank argued that Brenowitz' affirmative defenses were barred by section 687.0304, Florida Statutes....

...Barnett Bank of Naples, 603 So.2d 690, 692 (Fla. 2d DCA 1992) recognized that Brenowitz provides that estoppel, fraud and other available affirmative defenses may be asserted pursuant to Florida Rule of Civil Procedure 1.110(d) and are not barred by section 687.0304, Florida Statutes....

...ses. In the present case the Maynards asserted five affirmative defenses to the first complaint and three affirmative defenses to the second complaint. The trial court granted CNB's motion to strike the affirmative defenses based on the authority of section 687.0304, Florida Statutes....

...Two of the affirmative defenses to each complaint that were struck by the trial court dealt with the doctrine of estoppel and fraud or bad faith. According to Griffiths and Brenowitz, affirmative defenses of subsequent waiver, estoppel and bad faith are outside of the operation of section 687.0304. Therefore, the affirmative defenses should not have been stricken by the trial court on the authority of section 687.0304....

...I respectfully dissent because the claims asserted by the appellants are not affirmative defenses to Central National Bank's (CNB) foreclosure. [1] They are, at best, counterclaims against CNB for damages unrelated to the subject of the foreclosure and as such *1215 are barred by the operation of section 687.0304, Florida Statutes (1991) (preventing a debtor seeking affirmative relief from using an unwritten credit agreement to sue the creditor for breach of that agreement)....

...ccelerate the mortgage debt. As such, the Second District properly held that Brenowitz's defenses did not constitute an action against the bank maintained by Brenowitz as a debtor and, accordingly, the defenses were not subject to the limitations of section 687.0304....

...misrepresentation that the bank would finance the additional amount required to purchase the property. The Second District affirmed the trial court's entry of summary judgment against the Griffithses on their counterclaim, agreeing that pursuant to section 687.0304, the absence of any written credit agreement barred the counterclaim. [2] In contrast to the above-cited cases, the claims asserted by the appellants in the instant case are not affirmative defenses in their current form, nor are they susceptible to amendment to avoid the prohibition of section 687.0304....

...pable of alleging sufficient facts showing he was actually aggrieved by an unfair or deceptive act of CFC. Finally, CFC argues that Plaintiffs entire Second Amended Complaint is barred by Florida's banking statute of frauds, found in Florida Statute § 687.0304, since statements made during negotiations for a loan cannot give rise to a cause of action until they are reduced to writing and the writing is signed by both parties....

...Complaint is barred by the statute of frauds. [6] A credit agreement is defined as an "agreement to lend or forbear repayment of money, goods, or things in action, to otherwise extend credit, or to make any other financial accommodation." Fla. Stat. § 687.0304(1). Plaintiffs claim that Defendants promised Plaintiff a fixed interest rate of 6.375% for 30 years is an agreement to lend money or extend credit *1309 and, therefore, is a purported credit agreement requiring the application of Florida Statute § 687.0304. Yet, pursuant to Florida Statutes § 687.0304(2), a "debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor." This statute has been...

...of Frauds, which provides: A debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor. Fla. Stat. § 687.0304(2)....

...Ultimately final judgment in favor of Republic was entered in the amount of $178,141.82 which included attorney's fees for Republic. In this appeal Metro claims that the trial court erred in granting summary judgment on the counterclaims. The trial court relied on section § 687.0304, Florida Statutes (1989), which is the statute of frauds for credit agreements....

...claim. Under the wording of the statute, "A debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the debtor and creditor." § 687.0304, Fla....

...Finally, Metro argues that it should have been permitted to use the counterclaims with respect to the accounts receivable loans as an affirmative defense or setoff to the amounts claimed by Republic on the January and May notes and the overdraft. The Fifth District has said, "Section 687.0304 prevents a debtor from bringing a claim based on an oral credit agreement but does not prevent a debtor from asserting affirmative defenses based on an oral credit agreement." Maynard v....

...That being so, Metro is outside the scope of the "affirmative defense" exception addressed in Maynard. The trial court was correct in entering summary judgment. Affirmed. NOTES [1] Appellants will hereafter collectively be referred to as "Metro". [2] In pertinent part Section 687.0304 states: (2) CREDIT AGREEMENTS TO BE IN WRITING.—A debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions and is signed by the creditor and debtor....

...We fail to see how the Statute of Frauds would bar this claim against Mr. Clampitt because any licensing requirement imposed by the State of Florida would not require a writing between the Agates and him. [2] We further note that Mr. Clampitt relies upon section 687.0304(2), Florida Statutes (1995), to support his Statute of Frauds defense against what he describes as the parties' credit agreement....

...romise to pay, not a promise to pay another's debt, and thus "was not within the purview of the Statute of Frauds"). Although not characterized as such, the trial court's final judgment is akin to a judgment on the pleadings and the trial court used section 687.0304(2) as the basis for its blanket dismissal....

...at 851 (citations omitted); see also Puff `N Stuff of Winter Park, Inc. v. Bell, 683 So.2d. 1176, 1177 (Fla. 5th DCA 1996)(oral promise to loan money cannot be construed as fraud in the inducement in order to avoid application of the banking statute of frauds, section 687.0304, which requires that credit agreements be in writing)....

...373, 374 (2017). In an attempt to thwart these types of cases, states either enacted statutes that brought credit agreements within the scope of the statute of frauds or created a separate Banking Statute of Frauds, as Florida did in 1989 with the enactment of section 687.0304, Florida Statutes. 1We note that the bank’s lawyer failed to object to this testimony even though all mediation communications are privileged and a mediation party can “prevent any other person from testifying in a subsequent proceeding regarding mediation communications.” § 44.405(2), Fla....

...Agreements, 44 FLA. L. REV. 807, 828 (1992) (citing H.R. OF FLORIDA, COMM. ON COMMERCE, FINAL STAFF ANALYSIS AND ECONOMIC IMPACT STATEMENT ON H.B. 878, at 2). This purpose was achieved by “severely restricting borrowers’ ability to sue creditors.” Id. Section 687.0304(2) provides that “[a] debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.” A credit agreement is defined as “an agreement to lend or forbear repayment of money . . . to otherwise extend credit, or to make any other financial accommodation.” § 687.0304(1)(a). A “loan modification agreement ....

...Unlike the face-to-face interaction with a neighborhood bank, typical for so many years, modern banks have thousands of employees, who, with the aid of computers, communicate with customers by phone and e-mail. The statute creates order by imposing the requirement of a writing under section 687.0304(2) to memorialize agreements and to separate negotiations from an enforceable contract. The homeowners’ motion to enforce the oral settlement agreement was tantamount to “maintain[ing] an action on a credit agreement” not “in writing,” which is prohibited by section 687.0304(2)....

...As such, the modification was within the statute of frauds and was required to be in writing. Id. at 1194. Here, the term of the new loan agreement was 40 years “or something,” so the oral modification fell within the statute of frauds. As we discussed above with section 687.0304, there was no full performance here that would remove the oral modification from the statute of frauds....

...ting of the minds had occurred and in rejecting Vargas’ unsupported argument that a loan modification agreement was reached at the January 29th hearing. The order on appeal must be affirmed for yet a third reason: the applicable statute of frauds. Section 687.0304(2) of the Florida Statutes (2012) expressly provides that a “debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.” 7 For the purposes of this statute, a credit agreement is defined as “an agreement to lend or forbear repayment of money ..., to otherwise extend credit, or to make any other financial accommodation.” § 687.0304(l)(a), Fla....

...8:10-cv-338-T-33TGW, 2011 WL 6719215 , at *7 (M.D.Fla. Dee.5, 2011) (confirming that an oral promise to modify a “mortgage loan on more favorable terms is a credit agreement subject to Florida’s banking statute of frauds because it is an agreement to make a financial accommodation. § 687.0304(1), (2), Fla. Stat.”); Fenn v. Litton Loan Servicing LP, No. 6:10-cv-965-Orl-28DAB, 2010 WL 8318866 , at *2 (MD.Fla. Dec.10, 2010) (stating that a loan modification agreement is an agreement “to lend money and extend credit” under section 687.0304); Brisbin v....

...evidence of a meeting of the minds upon an agreement to modify the Defendants’ loan, either orally (under circumstances which require modification of the loan agreement in writing) or in writing.” Beyond these statements, it does not appear that section 687.0304 was expressly mentioned or considered in the lower proceedings....

...The last count of Harris's and ReMac's complaint is for sums advanced by ReMac on behalf of Riviera which Riviera agreed to repay. The trial court dismissed this action on the grounds that there was a violation of the statute of frauds provisions in sections 671.206 and 687.0304, Florida Statutes (1993)....

...s.678.319) nor to security agreements (s.679.203). The agreement at issue is not a contract for the sale of personal property. This statute is not applicable to this cause of action for money lent. *1156 The other statute cited by the trial court is section 687.0304, entitled Credit Agreements, which provides: (1) DEFINITIONS.—For purposes of this section: (a) "Credit agreement" means an agreement to lend or forbear repayment of money, goods, or things in action, to otherwise extend credit, or to make any other financial accommodation....

...redit agreement. However, Countrywide argues that such allegations cannot form the basis for fraud-based claims because claims based upon alleged oral misrepresentations are barred by the statute of frauds governing credit agreements. See Fla. Stat. § 687.0304....

...ount IV) are barred by the statute of frauds. [5] A credit agreement is defined as an "agreement to lend or forbear repayment of money, goods, or things in action, to otherwise extend credit, or to make any other financial accommodation." Fla. Stat. § 687.0304(1)....

...promised Plaintiff different financing terms then those included in the loan documents. Such purported promises represent an agreement to lend money or extend credit and, therefore, is a credit agreement requiring the application of Florida Statute § 687.0304. Yet, pursuant to Florida Statutes § 687.0304(2), a "debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor." This statute has been...

...We disagree. Under Florida’s Banking Statute of Frauds, “[a] debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.” § 687.0304(2), Fla....

...Life Ins. Co., 184 F. Supp. 2d 1301, 1305 (S.D. Fla. 2002))). 5 into a new credit agreement, forbearing from exercising remedies under prior credit agreements, or extending installments due under prior credit agreements.” § 687.0304(3)3., Fla....

v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980); § 687.0304, Fla.Stat. (1991).

...and by calling the loan prior to the extended due date. Bankruptcy Judge Isicoff dismissed with prejudice Appellant's Second Amended Complaint after finding that Appellant could not satisfy the requirements of the Florida Banking Statute of Frauds, § 687.0304, Florida Statutes (2009), because the alleged credit extension was not signed in writing, expressing consideration and setting forth the relevant terms and conditions of the agreement. On July 13, 2010, Appellant moved for leave to amend its initial appellate brief. Appellant seeks to alternatively argue that the Bankruptcy Court erred in finding that § 687.0304 applies to Appellee's oral modification of the maturity date for the loan because it claims that the modification is not a new "credit agreement" under the statute....

...Whether the Bankruptcy Court erred in its Order Dismissing Second Amended Complaint With Prejudice [D.E. 65]? 2. Whether the Bankruptcy Court erred in finding that Count I of the Second Amended Complaint for breach of contract should be dismissed because the agreement sued on does not satisfy the requirements of Fla. Stat. § 687.0304, Florida's Banking Statute of Frauds, and was not pled with the requisite specificity? 3....

...Whether the Bankruptcy Court erred in finding that Count II of the Second Amended Complaint for promissory estoppel should be dismissed because recovery for promissory estoppel is precluded where the Court found Sundale's contract claim is barred by Fla. Stat. § 687.0304, Florida's Banking Statute of Frauds, and was not pled with requisite specificity? 4....

...Whether the Bankruptcy Court erred in finding that Count III of the Second Amended Complaint for equitable estoppel should be dismissed because recovery for equitable estoppel is precluded where the Court found Sundale's contract claim is barred by Fla. Stat. § 687.0304, Florida's Bankruptcy Statute of Frauds, and was not pled with requisite specificity? D.E. No. 2-2. Appellant argues that its new claim that the Bankruptcy Court erred in finding that an oral modification to an existing credit agreement is subject to § 687.0304's writing requirement can be inferred from the first issue....

...Third, the issue must present no surprise to the other litigant. Id. (citations omitted). In this case, the record clearly indicates that Appellant did not raise and the Bankruptcy Court did not consider the issue of whether the Statute of Frauds requirements of § 687.0304 apply to an oral modification of an existing credit agreement....

...p. 5-6. Therefore, Appellant's first issue that "the Bankruptcy Court erred in its Order Dismissing Second Amended Complaint With Prejudice" in this context cannot sustain the inference that the Bankruptcy Court erred in failing to consider whether § 687.0304's requirements apply to oral modifications of an existing credit agreement....

...ppellant's new claim from the first issue since none of the parties briefed or argued it before the Bankruptcy Court, this Court denies Appellant's Motion for Leave to Amend its Initial Brief. B. Manifest Injustice Even if Appellant's new claim that § 687.0304's writing requirements do not apply to oral modifications of existing credit agreements could be inferred from issues listed in its Rule 8006 Issue Statement, it did not raise this argument in the Bankruptcy Court....

...In reaching this result, this Court notes that if it allowed the argument to be included in the appeal, the outcome of the case would be unchanged, because Appellant's argument is without merit. This Court finds that the text of the statute and case law do not support Appellant's argument. Section 687.0304 "was enacted to protect lenders from liability for actions or statements a lender might make in the context of counseling or negotiating with the borrower which the borrower construes as an agreement, the subsequent violation of which is actionable against the lender." Brenowitz v. Cent. Nat'l Bank, 597 So.2d 340, 342 (Fla.2d DCA 1992). Section 687.0304 defines "credit agreement" as "an agreement to lend or forbear repayment of money, goods, or things in action, to otherwise extend credit, or to make any other financial accommodation." § 687.0304(1)(a)....

...The modification at issue in this case qualifies as a credit agreement because it allegedly forbore the repayment of money by extending the due date of the loan by at least 120 days. See, e.g., Pavolini v. Williams, 915 So.2d 251, 253 (Fla. 5th DCA 2005) (where the court found that, pursuant to § 687.0304, the borrowers' claims, based on an oral arrangement that extended the payment of taxes and insurance required by the original loan documents, should not have been stricken since they were defensively asserted). Section 687.0304(2) provides that "[a] debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor." Section 687.0304(3) also provides that "[t]he agreement by a creditor to take certain actions, such as entering into a new credit agreement, forbearing from exercising remedies under prior credit agreements, or extending installments due under prior credit agreements" "do[es] not give rise to a claim that a new credit agreement is created, unless the agreement satisfies the requirements of subsection (2)." (emphasis added). Florida courts have repeatedly interpreted § 687.0304 to allow debtors to use oral agreements with creditors as shields in creditor actions, but have denied debtors the ability to use such agreements as swords in their own actions against creditors, which is the case here. For example, in Brenowitz, the Second District Court of Appeals reversed the lower court after concluding that pursuant to § 687.0304 "an agreement need not have been reduced to writing in order for [the debtor] to assert it defensively. " 597 So.2d at 343. The court found, however, that § 687.0304 "works to prevent a debtor seeking affirmative relief from using an unwritten credit agreement to sue the creditor for breach of that agreement." Id, In Griffiths v....

...Barnett Bank of Naples, by contrast, the court found that the debtors' counter-claims, including breach of contract, "founded upon their assertions that the banking officer made statements or agreements concerning the extension of credit . . . [were] specifically excluded as specified in subsection (3) of section 687.0304." 603 So.2d 690, 691 (Fla.2d DCA 1992)....

...y of answer." Id. In this case, Appellant's claims are not affirmative defenses, but rather affirmative claims based on an alleged oral agreement with Appellee. Therefore, to maintain an action on the agreement, Appellant must show that it satisfies § 687.0304's writing requirements....

...ll arise.”). Because a written credit agreement did not form, the trial court also correctly determined that the applicable Banking Statute of Frauds precludes 2 appellant’s breach of contract action. § 687.0304(2), Fla....

Agreement it has yet to enter. See Fla. Stat. § 687,-0304(2) (the “Banking Statute of Frauds”); see Traver

PER CURIAM. Affirmed. See § 687.0304, Fla....

Eboni. The judgment was apparently based on section 687.0304, but the statute does not apply to affirmative

...48 at 6), and the September 23 Conversation was never reduced to writing. 2 In any event, as loanDepot points out in its motion, any effort to base any of Roman's claims on such a conversation would be barred by Florida's Banking Statute of Frauds, Fla. Stat. § 687.0304 ....

...That statute provides in pertinent part that "[a] debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor. " Fla. Stat. § 687.0304 (2). 3 The statute defines "credit agreement" to include an agreement to forbear repayment of money. Fla. Stat. § 687.0304 (1)(a)....

...the conversations wherein Roman was allegedly told she would be allowed to delay making the Suspended Payments until the end of her mortgage loan, because those conversations were not reduced to writing, signed by both parties, and so on. Fla. Stat. § 687.0304 (2)....

...Banking Statute of Frauds BOA also argues that the Fraud Claim is barred by Florida's Banking Statute of Frauds. (Doc. 43, p. 11.) The Banking Statute of Frauds provides that a debtor may not sue a creditor over a credited agreement absent a signed, written document. Fla. Stat. § 687.0304 (2). A credit agreement is "an agreement to lend or forbear repayment of money, goods, or things in action, to otherwise extend credit, or to make any other financial accommodation." Id. § 687.0304(1)(a)....

...We agree. Florida’s Banking Statute of Frauds expressly provides that “[a] debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.” § 687.0304(2), Fla. Stat. (2012). Under the statute, a credit agreement is defined as “an agreement to lend or forbear repayment of money . . . , to otherwise extend credit, or to make any other financial accommodation.” § 687.0304(1)(a), Fla....

PER CURIAM. Affirmed. See Balter v. Pan American Bank of Hialeah, 383 So.2d 256 (Fla. 3d DCA 1980); Section 687.0304, Florida Statutes (1989).

...After reviewing the relevant information, Wells Fargo concluded the Blochs did not qualify for a permanent loan modification under the HAMP. Additionally, to the extent the Blochs attempt to add verbal conversations to the purported “promise,” such addition is barred by section 687.0304 of the Florida Statutes, known as “Florida’s Banking Statute of Frauds.” See Coral Reef Drive Land Dev., LLC v....

...s under prior credit agreements, or extending installments due under prior credit agreements, unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor. § 687.0304, Fla....

PER CURIAM. Affirmed. Section 687.0304, Fla.Stat. (1991); Griffiths v. Barnett Bank of Naples, 603 So.2d 690, 692 (Fla. 2d DCA 1992) (The court, in construing Section 687.0304 as to an oral credit agreement, upheld summary judgment in favor of the lender, stating that, “the absence of any written credit agreement bars an action against the bank on the credit agreement.”); see AFM Corp....

...For the reasons stated below, we hold the trial court’s finding that the mortgage was orally modified violates section 725.01, Florida Statutes (2013).1 We also agree that the trial court 1 It appears that there are at least two Statutes of Frauds in effect in Florida: section 687.0304, Florida Statutes (2013), which has been referred to by courts erroneously applied the doctrine of promissory estoppel....

Venezuela, C.A., 534 So.2d 773 (Fla. 3d DCA1988); § 687.0304, Fla.Stat. (1991).

PER CURIAM. Joseph R. Rivers appeals an adverse summary final judgment in an action for breach of an equipment lease agreement. Leaving entirely aside the applicability of section 687.0304, Florida Statutes (1989), we conclude that there was no disputed issue of material fact and that appellee was entitled to judgment as a matter of law....

...358 (E.D.La.1989); RSR Properties, Inc. v. FDIC, 706 F.Supp. 524 (W.D.Tex.1989); Von Dunser v. Southeast First Nat’l Bank of Miami, 367 So.2d 1094, 1096 (Fla.3d DCA 1979); Fidelity Nat’l Bank of South Miami v. Melo, 366 So.2d 1218, 1221 (Fla.3d DCA 1979); § 687.0304, Fla.Stat....