Lenney v. Key Bank of New York

District Court of Appeal of Florida

Lenney v. Key Bank of New York

721 So. 2d 780, 1998 Fla. App. LEXIS 15265, 1998 WL 833579

CourtDistrict Court of Appeal of Florida

DecidedDecember 4, 1998

DocketNo. 98-320

StatusPublished

This text of 721 So. 2d 780 (Lenney v. Key Bank of New York) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lenney v. Key Bank of New York, 721 So. 2d 780, 1998 Fla. App. LEXIS 15265, 1998 WL 833579 (Fla. Ct. App. 1998).

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Opinion

GRIFFIN, C.J.

This is an appeal of a final summary judgment entered in favor of Key Bank of New York, in an action to recover on a retail installment contract. Appellant contends that the action is barred by laches and that their filed affidavit created a material issue of fact concerning whether there had been a de facto repossession. The laches claim is clearly without merit. This is an action at law governed by a six-year statute of limita[781]*781tions.¹ As for the “de facto” repossession, this would amount to an affirmative defense that was not pleaded. The lower court did elect to consider the issue, however, and correctly rejected it. The affidavit relied on by appellant, which asserts that the vehicle had been “disposed of’ to Rogers towing is not the equivalent of a statement that the bank (or its predecessor) had repossessed or resold the vehicle. Even assuming the legal sufficiency of this claim, it lacks the record factual substance necessary to preclude summary judgment.

AFFIRMED.

COBB and THOMPSON, JJ., concur.

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GRIFFIN, C.J.

This is an appeal of a final summary judgment entered in favor of Key Bank of New York, in an action to recover on a retail installment contract. Appellant contends that the action is barred by laches and that their filed affidavit created a material issue of fact concerning whether there had been a de facto repossession. The laches claim is clearly without merit. This is an action at law governed by a six-year statute of limita[781]*781tions.¹ As for the “de facto” repossession, this would amount to an affirmative defense that was not pleaded. The lower court did elect to consider the issue, however, and correctly rejected it. The affidavit relied on by appellant, which asserts that the vehicle had been “disposed of’ to Rogers towing is not the equivalent of a statement that the bank (or its predecessor) had repossessed or resold the vehicle. Even assuming the legal sufficiency of this claim, it lacks the record factual substance necessary to preclude summary judgment.

AFFIRMED.

COBB and THOMPSON, JJ., concur.

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721 So. 2d 780, 1998 Fla. App. LEXIS 15265, 1998 WL 833579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lenney-v-key-bank-of-new-york-fladistctapp-1998.

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