Taylor v. First National Bank of Miami

PER CURIAM. The appellant, the defendant below, filed this appeal from an adverse summary judgment for a deficiency balance on an automobile purchase installment contract. The contract was between the defendant and J. D. Ball Ford Incorporated, incident to purchase by the defendant on August 27, 1969, of a used 1965 Ford automobile. The contract was assigned by the seller to the plaintiff bank. Upon default by the purchaser the automobile was repossessed and sold, and the plaintiff filed this action for the established deficiency. Appellee contends the contract on its face was usurious, and that there was a genuine triable issue as to usury; and further, that the court erred by denying defendant’s motion to vacate the summary judgment. On consideration thereof in the light of the record and briefs we hold no reversible error has been shown. The automobile involved was within “Class 3” as referred to in the statute applicable to this transaction. The finance charges were not in excess of those authorized therefor by statute.1 See Nelson v. Scarritt Motors, Fla.1950, 48 So.2d 168. By a separate motion and a motion for rehearing, filed six days after the entry of summary judgment, the defendant sought to set aside the summary judgment for excusable neglect, namely, that by oversight the attorney for defendant was not present at the noticed hearing on plaintiff’s motion for summary judgment. No prejudice was shown therefrom in the motions to vacate the judgment, other than that by failing to attend the hearing counsel for the defendant was precluded from presenting argument on behalf of the defendant in opposition to the motion for summary judgment. In the circumstance presented we hold that the denial of the motions to vacate the judgment did not constitute an abuse of discretion. Affirmed. Footnotes [1] § 520.08 Fla.Stat., F.S.A. provides: “(1) Notwithstanding the provisions of any other law, the finance charge, exclusive of insurance, shall not exceed the following rates: >}< >}5 '¿¡l >}{ >Jt “(c) Class 3. Any used motor vehicle not in Class 2 and designated by the manufacturer by a year model not more than four years prior to the year in which the sale is made — $15 per $100 per year.”