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.
Even when usurious interest is actually collected, Florida courts will not necessarily assume the requisite intent. When overpayments of interest are caused by a mistaken computation as to the interest required by the loan agreement, there is arguably no usury because there was arguably no intent. However, lenders should note that a mistake does not in and of itself negate the element of intent. For this reason, lenders should continue to use well-drafted usury savings clauses in their loan documents as further evidence that, in connection with any mistaken interest calculations, the lender lacked any intent to charge or collect a usurious rate of interest.