By Janet C. Owens and Scott J. Kennelly
Because intent is a key element of usury , a lender may be able to successfully defend against a claim of usury if it can demonstrate that the interest was demanded, or in some cases even collected, through inadvertent error. In such cases, the element of intent is lacking.
For example, one common error involves the situation where the borrower is in default under the loan documents and the lender fails to adjust its accounting method when charging the default interest rate. Florida courts have held that an otherwise non-usurious loan will not become usurious merely because usurious interest is claimed or demanded under it; rather, the borrower must prove that the lender actually intended to charge or collect interest in excess of the statutorily prescribed maximum rates.