IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

HANCOCK BANK, a Mississippi 

banking corporation, 

Plaintiff/ Counter-defendant

vs. CASE NO. 5:11-cv-97/RS-EMT

BOYD BROTHERS, INC., a Florida 

corporation, et al., 

Defendants/ Counterclaimants 

_________________________________________/

ORDER

Before me are Hancock Bank’s Motion to Dismiss Counterclaim with Prejudice 

(Doc. 21) and the Counterclaimants (“Boyd Brothers”) response in Opposition (Doc. 24). 

Standard of Review

To survive a motion to dismiss, a complaint must contain sufficient facts, which 

accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 

S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569, 127 S. Ct. 

1955, 1974 (2007). Granting a motion to dismiss is appropriate if it is clear that no relief 

could be granted under any set of facts that could be proven consistent with the 

allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 

2229, 2232 (1984). In making this determination, the court must accept all factual 

allegations in the complaint as true and in the light most favorable to Plaintiff. 

Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 2182 (2003).

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Analysis

The essence of the counterclaim is that Hancock Bank fraudulently induced Boyd 

Brothers to execute several promissory notes, including the one in dispute here. “In 

reliance on Hancock’s representations that Hancock would renew the Promissory Note 

and the Five Renewed Promissory Notes in March 2011 when they matured, [Boyd 

Brothers] agreed to execute the Promissory Note, the Guarantee, the Five Renewed 

Promissory Notes, the Amended Loan Agreement and the Amended Collateral 

Agreement.” (Doc. 12, p. 17-18). Boyd Brothers further allege that “Hancock knew at 

closing that Hancock never planned to renew” those promissory notes including the one 

at issue here. Id. at 18. There is no allegation that any of these “misrepresentations” 

were in writing. 

Florida law 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.” FLA. STAT. § 

687.0304. “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.” Id. (punctuation altered). 

Boyd Brothers claim that the oral representations made by Hancock Bank are not a 

“credit agreement” and thus fall outside of the statute. They argue that the oral 

representations “would renew the loans after the March 31, 2011, maturity dates” and are 

thus not an “agreement between debtor and creditor to extend credit.” (Doc. 24, p. 8-9). 

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Instead, the oral representations are “wholly independent of all credit agreements made 

by the parties and [do] not alter or contradict any of the loan terms.” Id. 

Boyd Brother’s interpretation is incorrect. The plain language of section 

687.0304 makes clear that the term “credit agreement” includes a representation to renew 

a loan. A loan renewal is a means to “forbear repayment.” Forbearance is the “act of 

refraining from enforcing a right, obligation, or debt.” Black’s Law Dictionary 537 

(Abridged 8th ed. 2005). By renewing a loan, the creditor agrees to make payments due 

at a later date. The creditor refrains from enforcing their right to collect debt on a certain 

date and agrees to a right to collect on a future date. Further, section 687.0304 provides 

that “credit agreements” include “mak[ing] any other financial accommodation.” 

Certainly, this expansive definition includes any purported oral representations to renew 

loans. Based on the plain language of the statute, Boyd Brothers cannot maintain an 

action based upon Hancock Bank’s oral representations and its fraud claim fails. 

Boyd Brothers’ remaining claims for breach of the covenant of good faith and fair 

dealing and for negligent misrepresentation fail because the oral representations are 

unenforceable. That is, the breach of an unenforceable agreement is not actionable and 

negligence cannot be established because “a party cannot rely to his detriment on an 

unenforceable promise.” Bankers Trust Co. v. Basciano, 960 So. 2d 773, 778 (Fla. 5th 

DCA 2007). 

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IT IS ORDERED: 

1. The Motion to Dismiss (Doc. 21) is GRANTED. 

2. Boyd Brothers’ Counterclaim is dismissed with prejudice. 

ORDERED on June 9, 2011.

 /S/ Richard Smoak

 RICHARD SMOAK

 UNITED STATES DISTRICT JUDGE 

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