26 C.F.R. § 301.6323(h)-1(a)(3). It also includes "any consideration which otherwise would constitute money or money's worth . . . which was parted with before the security interest would otherwise exist if, under local law, past consideration is sufficient to support an agreement giving rise to a security interest." Id. Under Florida law, the local law in this case, past consideration is sufficient to support the creation of a security interest. Fla. Stat. § 673.3031(1)(c) (providing that an instrument is issued for value if "issued or transferred as payment of, or as security for, an antecedent claim against any person, whether or not the claim is due"); see also Lea v. Suhl, 417 So.2d 1179, 1181 (Fla.App. 1982) (issuance of a note in payment of an antecedent obligation rendered additional consideration unnecessary). Federal law determines the priority of competing liens asserted against a taxpayer's property.

The district court noted that forbearance to enforce a legal right, even if that legal right is of doubtful validity, constitutes consideration sufficient to support a promise or contract. Henderson v. Kendrick, 89 So. 635, 637 (1921); Lea v. Suhl, 417 So.2d 1179, 1181 (Fla. 2d DCA 1982). The district court found that even assuming that the reconveyance condition was invalid, which it appears to have been, all the parties believed it had at least arguable merit.

Because there was forbearance by Citibank in connection with Mercogliano, we find that the trial court erred in ruling that there was a lack of consideration sufficient to enforce the promissory note and mortgage. It is well settled Florida law that forbearance from pursuing a legal remedy, where the promisee has a bona fide belief that a viable legal right exists, constitutes valid consideration for an agreement which benefits the promisor. Henderson v. Kendrick, 82 Fla. 110, 89 So. 635 (1921); Matey v. Pruitt, 510 So.2d 351 (Fla. 2d DCA 1987), rev. denied, 518 So.2d 1276 (Fla. 1987) and 520 So.2d 585 (Fla. 1988); Shay v. First Federal of Miami, Inc., 429 So.2d 64 (Fla. 3d DCA 1983); Lea v. Suhl, 417 So.2d 1179 (Fla. 2d DCA 1982); Alpha Electric Supply, Inc. v. Drake Contracting, Inc., 407 So.2d 363 (Fla. 5th DCA 1981); Uwanawich v. Gaudini, 334 So.2d 116 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 1086 (Fla. 1976); City of Valparaiso v. Long, 141 So.2d 334 (Fla. 1st DCA 1962). Even if the legal right is of doubtful validity, it can still constitute valid consideration sufficient to support a contract or promise where the promisee has a bona fide belief of a fair chance of success in the lawsuit.

It is well settled under Florida law that forbearance to enforce a legal right may be consideration for an agreement. Lea v. Suhl, 417 So.2d 1179 (Fla. 2d DCA 1982); Alpha Electric Supply, Inc. v. Drake Contracting, Inc., 407 So.2d 363 (Fla. 5th DCA 1981); Uwanawich v. Gaudini, 334 So.2d 116 (Fla. 3d DCA), cert. denied, 341 So.2d 1086 (Fla. 1976). Appellants may have stated a theoretical cause of action to the trial court, but in reality they waived the enforcement of that cause when they agreed to the covenant not to sue provision.