Landlords increasingly rely on promissory notes, repayment agreements, early-termination fee agreements, and other credit instruments to secure money owed by tenants. But a recent Florida appellate court decision, Miller v. ARCPE Bahamas, LLC, 5D2024-2573 (Fla. 5th DCA 2025), offers a reminder: your rights to attorney’s fees, costs and even the timeliness of your lawsuit depend on how clearly you accelerate the debt and how consistently you argue your position.
In Miller, borrowers defaulted on two promissory notes secured by real estate. The notes allowed the lender to accelerate the full balance if the borrowers missed their monthly payments, but only after sending notice and requiring immediate payment of the full debt.
The lender sent default notices but never followed through with a clear acceleration action. Years later, the successor creditor sued based on the borrowers’ failure to pay at maturity, not based on acceleration. When the creditor won the case, it also sought attorney’s fees under the note’s acceleration-based fee clause.
The appellate court reversed the fee award. Why? Because the fee provision applied only if the debt had been accelerated, and the creditor had expressly argued in earlier stages that acceleration had not occurred (to defeat a statute of limitations defense). The court held the creditor could not switch positions. Through judicial estoppel, a party cannot claim “no acceleration” when it benefits them, and then later claim “yes, acceleration” to obtain fees.
For landlord-creditors, the lessons are important and immediately practical.
1. Acceleration Must Be Unequivocal and Documented
If your right to attorney’s fees, collection costs, interest, or late fees depends on acceleration, you must:
- Send the written notice required under your note or payment agreement.
- Follow the notice with a clear, documented act requiring immediate payment of the full balance.
- Preserve proof of delivery.
Without a clear written acceleration, courts will treat the debt as maturing on its natural maturity date, potentially limiting your rights.
2. Your Litigation Strategy Must Be Consistent
In Miller, the creditor had argued “no acceleration” for statute-of-limitations purposes, then tried to argue “acceleration” for fees. That inconsistency cost them over $168,000 in fees.
Landlord-creditors must ensure:
- Demand letters, notices, lawsuits, and summary-judgment filings all maintain a consistent factual position.
- Your theory of the case (acceleration or no acceleration) is chosen intentionally and maintained throughout.
3. Fee Clauses Should Be Drafted Broadly
Most landlord promissory notes, repayment plans, and lease-based debt instruments tie attorney’s fees to “enforcement of the agreement,” whether the debt is accelerated or not. The note in Miller did not.
Landlords should use contract language stating:
“The creditor is entitled to recover all attorney’s fees and costs incurred in enforcing this agreement, whether before or after acceleration, at trial, on appeal, or in bankruptcy.”
This avoids the trap seen in Miller.
4. Treat Acceleration as a Strategic Tool
Acceleration can:
- Strengthen your settlement leverage,
- Trigger higher interest rates or default interest,
- Lock in attorney’s-fee entitlement,
- And establish earlier accrual of damages.
But failure to use it properly can weaken your position.
Lesson Summary
For landlord-creditors, Miller is a cautionary tale: if your rights depend on acceleration, you must accelerate correctly, unmistakably, and consistently. A sloppy or contradictory approach can cost you your attorney’s fees, even when you win the case.
Learn the Case
Facts
Kent and Judith Miller purchased two undeveloped lots in a failed Bahamian luxury development known as “Ginn Sur Mer.” To finance those purchases, they executed two promissory notes, one executed by Kent alone in 2006 and one jointly executed by both Millers in 2007.
Payment structure under the notes:
- The notes required monthly interest-only payments.
- A balloon payment of all remaining principal and interest was due on a specified maturity date.
If the Millers failed to make monthly payments, the lender had the option to accelerate the full remaining debt, but only after sending a written notice giving them 30 days to cure the default.
Default and “Default Notices”
The Millers stopped making payments in May 2010. On May 6, 2011, the lender sent “Default Notices” warning that if the default was not cured in 30 days, it may require immediate payment in full. The Millers did not cure the default. Both notes subsequently reached their maturity dates in 2012.
Litigation
More than five years after the Default Notices, but less than five years after the maturity dates, the lender filed suit to collect the sums due. ARCPE Bahamas later obtained the notes and became the plaintiff.
To defeat the Millers’ Statute of limitations defense, ARCPE successfully argued that the Default Notices did not accelerate the debt. Therefore, the lawsuit was timely because it was filed within five years of the maturity dates, not the Default Notice dates.
ARCPE obtained final judgment on the debt and the trial court concluded ARCPE was entitled to attorney’s fees under the notes. ARCPE was awarded $168,246.39 in attorneys’ fees and costs.
The Millers appealed only the attorney’s fee award.
Legal Issues
1. Did the language of the promissory notes allow ARCPE to recover attorney’s fees without actual acceleration having occurred?
Under Section 7(E) of the notes, attorney’s fees are recoverable only if “the Note Holder has required me to pay immediately in full as described above.” Thus, fee entitlement depended on whether the debt had been accelerated.
ARCPE’s position on appeal: Section 3(A) (the general payment obligations and maturity date) required immediate full payment, allegedly satisfying the condition for attorney’s fees—even without formal acceleration.
The Millers’ position: the fee provision applied only when acceleration occurred, and acceleration never actually happened.
2. Did ARCPE actually accelerate the debt?
The court found that ARCPE sent the prerequisite notices, but never took the additional step of requiring immediate full payment. Instead, ARCPE’s lawsuit sought recovery based on non-payment at maturity, not acceleration. ARCPE obtained summary judgment by arguing the debt was not accelerated (to defeat statute of limitations arguments).
3. Is ARCPE judicially estopped from arguing it accelerated the debt after successfully arguing earlier that it did not?
Judicial estoppel applies where a party successfully takes one position in litigation and later attempts to take a clearly inconsistent position. ARCPE succeeded below by arguing that the Default Notices did not accelerate the debt, but ARCPE later argued (for fees) arguing that the debt was accelerated or should be treated as such. These positions were inconsistent.
The Ruling
The Fifth District Court of Appeal reversed the trial court’s award of attorneys’ fees and remanded with instructions to strike the fee award. Key holdings included:
- The notes only permit attorney’s fees if the debt has been accelerated. Section 7(E) is the only attorney-fee provision. It applies only where the lender “required [the borrower] to pay immediately in full.” This never happened.
- ARCPE did not accelerate the debt. Sending Default Notices alone is not acceleration. The lender took no action requiring immediate full payment. The claim was brought based on failure to pay at maturity, not based on acceleration.
- Judicial estoppel prevents ARCPE from now claiming acceleration. ARCPE previously successfully argued the debt was not accelerated to defeat the statute of limitations. It cannot now argue the opposite to obtain attorney’s fees.
- ARCPE was entitled only to taxable costs, not fees. The $168,246.39 fee award was reversed. The Millers conceded ARCPE was entitled to $969.47 in taxable costs.
Case Summary
The Fifth DCA held that ARCPE was not entitled to attorney’s fees because the express fee provision applied only after acceleration, and acceleration never occurred. ARCPE’s litigation strategy—successfully arguing the debt was not accelerated—barred it from later claiming otherwise. Judicial estoppel prevented ARCPE from taking inconsistent positions. The fee judgment was reversed and remanded with instructions to strike the attorney’s fee award.