FLORENTINE G. BOERNER et al., Plaintiffs and Appellants, v. COLWELL COMPANY, Defendant and Respondent.
L.A. No. 30778
Supreme Court of California
Apr. 24, 1978.
21 Cal. 3d 37
FLORENTINE G. BOERNER et al., Plaintiffs and Appellants, v. COLWELL COMPANY, Defendant and Respondent.
Patricia Herzog, Goldin & Goldin and Martha Goldin for Plaintiffs and Appellants.
Meserve, Mumper & Hughes, Cromwell Warner, Jr., L. Allan Songstad, Jr., Ellis J. Horvitz and Horvitz, Greines & Horowitz for Defendant and Respondent.
Sheppard, Mullin, Richter & Hampton, George R. Richter, Jr., and Ronald M. Bayer as Amici Curiae on behalf of Defendant and Respondent.
OPINION
MANUEL, J.--Plaintiff Florentine Boerner and eight other named plaintiffs commenced this class action against defendant The Colwell
I
The evidence, which is essentially uncontradicted, established the following: Colwell is a mortgage banking firm. Since 1961 it has had an installment contract department engaged in the purchase of installment contracts for the sale of mobile homes, vacation homes, and home improvements. Transactions in the latter two categories are handled in essentially the same fashion. When contacted by a builder interested in arranging for the purchase of its contracts,1 and when satisfied with the builder‘s qualifications and general business reputation, Colwell and the builder sign an agreement detailing the conditions on which the builder‘s contracts will be accepted for purchase. Colwell then provides the builder with a series of forms an individual set of which includes a credit application, a lien contract and deed of trust, and a truth-in-lending disclosure statement.2 It also advises the builder of the finance charge rate to be included in a contract if it is to be accepted for assignment.
When a builder using the Colwell service enters into a vacation home construction contract with a landowner wishing financing, the forms provided by Colwell are filled out and executed by both parties to the contract.3 These forms, along with the construction contract and the plans and specifications, are submitted to Colwell, which then undertakes a credit check, makes a “desk appraisal” of the value of the real property including the contemplated improvements, and orders a preliminary title report. If these investigations yield results acceptable to Colwell, it informs the builder and the landowner that it has accepted the contract for purchase and records the assigned lien contract and deed of trust. The price paid is the cash price reflected in the construction contract less a small charge for the builder‘s use of Colwell‘s “voucher system,” a system developed by it to avoid mechanic‘s liens and disputes over payment.4 The buyer, however, at this point becomes bound to pay Colwell the deferred purchase price (cash price plus finance charge), in monthly installments as reflected in the assigned lien contract-payment being secured by means of the assigned trust deed.
The evidence further showed that plaintiff Boerner and her husband (now deceased) contracted with FWF Construction Company for the construction of a vacation home on their property; that the eight other named plaintiffs (hereinafter the Wards) contracted with Nordic Mountain Homes for the construction of a vacation home on property which they owned jointly; that in each case the buyer desired financing and requested that the builder arrange it if possible; that in each case the builder arranged to have the construction financed by defendant Colwell
On the basis of these facts the trial court found and concluded that the transactions taking place between plaintiffs and their respective builders were bona fide credit sales and “not parts of loan transactions clothed in the form of credit sales” and that the respective assignments of the builder‘s rights to Colwell were “an assignment of rights under a credit sale and were not loans by [Colwell] in the form of assignments.” Accordingly, judgment on the complaint was entered for defendant Colwell. (See fn. 5, ante.)
II
The law of usury in this state is based upon the provisions of
Although the constitutional and statutory provisions dealing with usury speak only in terms of a “loan” or a “forbearance” of money or other things of value,7 the courts, alert to the resourcefulness of some lenders in fashioning transactions designed to evade the usury law, have looked to the substance rather than the form of such transactions in assessing their effect and validity, and in many cases have struck down as usurious arrangements bearing little facial resemblance to what is normally thought of as a “loan” or a “forbearance” of money. (See, e.g., Burr v. Capital Reserve Corp. (1969) 71 Cal.2d 983 [80 Cal.Rptr. 345, 458 P.2d 185] (sale-leaseback); Rochester Capital Leasing Corp. v. K & L Litho Corp. (1970) 13 Cal.App.3d 697 [91 Cal.Rptr. 827] (sale-leaseback); Golden State Lanes v. Fox (1965) 232 Cal.App.2d 135 [42 Cal.Rptr. 568] (assignment of lease, sublease with agreement to repurchase).)8 In all such cases the issue is whеther or not the bargain of the parties, assessed in light of all the circumstances and with a view to substance rather than form, has as its true object the hire of money at an excessive rate of interest. (Burr, supra, at p. 989.) The existence of the requisite intent is always a question of fact. (Id.)
One area of great concern in this respect-to the commentators as well as to the courts-has been that of credit sales. It has long been the law in this jurisdiction, as well as in the vast majority of other jurisdictions, that a bona fide credit sale is not subject to the usury law because it does not involve a “loan” or “forbearance” of money or other things of value.
The leading case on the subject in this jurisdiction-Verbeck v. Clymer (1927) 202 Cal. 557 [261 P. 1017]-was an action in ejectment based upon an alleged default in payment under a contract for the sale of real property. The buyers in possession defended on the ground that the transaction represented by the contract was usurious, calling as it did for interest in excess of the legal rate on deferred payments, which were to extend over a 15-year period; they sought not only nullification of the interest provision in the contract but also treble damages. Declaring these claims “astonishing,” we made haste to reject them: “[W]e have no hesitancy whatsoever in declaring that the transaction set up in the answer and cross-complaint is not in any sense a loan within the meaning of said usury law. The contract is admittedly a bona fide one of sale and purchase of real property where the title is retained by the vendor. The purchase price is therein named and the terms of sale are fixed and certain deferred payments are provided for. There is in the transaction no element of a loan. The parties were unfettered, dealt with each other at arm‘s-length and in apparent good faith. The transaction was not a subterfuge devised to conceal what was in fact a loan. . . . ‘On principle and authority, the owner of property, whether real or personal, has a perfect right to name the price on which he is willing to sell, and to refuse to accede to any other. He may offer to sell at a designated price for cash or at a much higher price on credit, and a credit sale will not constitute usury however great the difference between the two prices, unless the buying and selling was a mere pretense; and it has been held that it is not material that the agreement for the purchase price in the future, instead of specifying the whole sum then to be paid, names a particular sum as principal, and declares that it shall draw interest at a
It is this principle which lies at the foundation of consumer and commercial credit sales practices in this country,9 the massive finance industry which has grown up to service and facilitate those practices, and the body of statutory law which has been enacted to regulate the process for the common good. In California the basic laws in the consumer area, which among other things set limitations upon finance charges, are the Rees-Levering Act (
We do not, however, understand plaintiffs to here mount a broadside attack upon the so-called time-price doctrine as an “exception” to the laws governing usury. Their position, as we perceive it, is simply that granting the nonapplicability of usury laws to bona fide credit sales, the transactions here in question-viewed from the standpoint of substance rather than form-must nevertheless be held to be usurious loans. We proceed to an examination of this contention.
III
“A sale is the transfer of the property in a thing for a price in money. The transfer of the property in the thing sold for a price is the essence of the transaction. . . . A loan, on the other hand, is the delivery of a sum of money to another under a contract to return at some future time an equivalent amount with or without an additional sum agreed upon for its use; and if such be the intent of the parties the transaction will be deemed a loan regardless of its form. . . .” (Milana v. Credit Discount Co., supra, 27 Cal.2d 335, 339.) By the same token, however, “[c]ontractors are free to buy and sell their property, and this may include promissory notes and other instruments, at a price agreed upon, and when the bona fides of the parties is established the percentage of profit has no relation to the usury law.” (Id., at p. 340.)
Plaintiffs, in their effort to demonstrate error in the trial court‘s finding that bona fide credit sales rather than usurious loans were here involved, direct our attention to a number of aspects of the subject transactions which in their view compel a contrary determination. Thus they urge that here there was no “transfer of . . . property . . . for a price” because at the time of the subject transaction the “property” in question (i.e., a completed vacation home) was not in existence. It is clear, however, that contracts of the type here in question-calling fоr the provision of materials and labor in the construction of specified improvements to real property-result in a transfer of “property” within the meaning of the credit-sale doctrine. (Lamb v. Herndon (1929) 97 Cal.App. 193, 200 [275 P. 503]; see also
Plaintiffs also rely on the consideration that they were required to put up their own real property as security; this, they urge, is further indicative that the transactions in question were loans, not sales. It is clear, however, that the taking of a security interest in real property owned by the buyer is not inconsistent with a bona fide credit sale-at least in a case where the property which is the subject of the sale is to be affixed and made a part of the real property given as security for payment. (See Lamb v. Herndon, supra, 97 Cal.App. 193; Morgan v. Reasor Corp., supra, 69 Cal.2d 881, discussed at fn. 12, ante; Mills v. Herrod (1974) 37 Cal.App.3d 213 [112 Cal.Rptr. 397].13) Indeed, the Unruh Act explicitly provides for such security (
We are thus brought to what we deem to be the most troublesome aspect of the subject transactions from the point of view of assessing their true substance: the role of the third-party financing institution. If it be granted-as we think it must-that these transactions would be regarded as bona fide credit sales had there been no assignment of the contracts from the respective builders to Colwell, must this characterization be altered in light of the assignments and the circumstances out of which they arose?
We think it clear from our Morgan decision that the fact of assignment in and of itself has no significant effect on the characterization of the transaction according to its substance, for that case like this one involved the assignment of a credit sale contract for the construction of a residence from the builder to a financing institution. There, however, our opinion reflects no significant involvement of the financing institution in the development and consummation of the bargain between the buyer and the builder, and the only indication relating to temporal sequence is our observation that the assignment occurred “[w]ithin three months thereafter. . . .” (69 Cal.2d at p. 886.) Here, on the other hand, the financing institution occupied a central position in shaping the transactions from the outset. The buyers having determined that they would go forward with the contemplated construction of their vacation homes only if financing could be obtained, the builders set in motion a procedure whereby, in accordance with prior arrangements made by them with Colwell, the feasibility of financing by Colwell could be determined. Under this procedure the parties were supplied with forms developed and supplied by Colwell which essentially set forth the terms under which Colwell, through the device of contemporaneous assignment at a prearranged discount, would agree to finance the contemplated purchase and sale. Included among these terms was the finance charge to be paid by the buyers. Colwell, not the builders, passed upon the question of the buyer‘s credit reliability, and only when it
Plaintiffs, urging that this kind of participation by the financing institution rendered it a “lender” of money within the meaning of the usury laws, relies heavily on our decision in Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915 [117 Cal.Rptr. 541, 528 P.2d 357]. There membership in a certain health club was sold at a set price, payable either in cash at the outset or in monthly installments for two years under a form contract declaring that no “service charge” was made for the extension of credit. Understandably, most members chose the “no service charge” credit arrangement and executed the contract. The contracts were then sold “as a matter of course” and at a 37.5 percent discount to a financing institution; the latter and the health club were “interlocking corporations with common ownership and control.” (12 Cal.3d at p. 918.) After holding that the discount constituted a “buried finance charge” subject to the federal truth-in-lending laws,15 we addressed plaintiffs’ additional contention that the trial court had erred in sustaining defendant‘s general demurrer to a cause of action alleging usury. Upholding this contention, we pointed out that the credit sale “exception,” to the usury laws (upon which the trial court had apparently relied) is applicable only ““when the bona fides of the parties is established. . . .“” (12 Cal.3d at p. 927, quoting from Milana v. Credit Discount Co., supra, 27 Cal.2d 335, 340.) Concluding that this was a question of fact raised by the allegations of the complaint, we returned the matter to the trial court for further proceedings. “By sustaining the demurrer,” we stated, “the trial court precluded plaintiff from offering evidence to establish that defendants’ practice of discounting notes in fact operated to conceal the imposition of usurious interest charges, and in so doing the court clearly erred. As we have often noted, substance not form must dictate the treatment that a transaction is to be accorded under the usury law, and the question of substance is predominantly a factual inquiry.” (12 Cal.3d at p. 927.)
Under the law of this and the significant majority of other16 jurisdictions the answer is clearly no. Representative of the California position is the case of Ricker v. Fay (1931) 110 Cal.App. 750 [294 P. 732]. There the plaintiff in an action for usury had entered into an installment contract for the purchase of an automobile from a dealer who had subsequently sold the contract, as was its custom, to the defendant financing institution for an amount equal to the retail cash price of the automobile. The evidence established that the plaintiff had been informed at the time of the contract that if the automobile were purchased on a time basis a given “mark up” would be added for the cost of financing according to the length of the desired time contract, and that the resultant deferred payment price ” ‘would be the price we [i.e., the dealer] would have to charge in order to have the Fay Securitiеs Company- take the contract on a time sales price.‘” (Id., at p. 752.) Rejecting the finding of the trial court that the total transaction including the assignment constituted a “loan” in violation of the usury laws, the Court of Appeal reversed. “It has repeatedly been held that where the time sale price exceeds the cash sales price and the difference amounts to more than the legal rate of interest it does not follow that the transaction is usurious, but that other considerations than interest are properly
We conclude that the participation by Colwell in the shaping of the contracting parties’ bargain-in the manner and mode revealed by this record-does not operate to convert the resulting transactions, including the contemplated assignment, into usurious loans. While the relative “closeness” of the relationship between the seller and the financing institution may have a significant effect on whether the latter‘s rights are to be considerеd subject to the defenses and claims of the purchasers (see Vasquez v. Superior Court (1971) 4 Cal.3d 800, 822 [94 Cal.Rptr. 796, 484 P.2d 964, 53 A.L.R.3d 513]; Morgan v. Reasor Corp., supra, 69 Cal.2d 881, 894; Coml. Credit Corp. v. Orange Co. Mach. Works (1950) 34 Cal.2d 766, 771 [214 P.2d 819]; see also fn. 3, ante), we hold that it is without significance in itself in the determination whether the subject transactions, considered from the point of view of substance rather than form, are to be characterized as usurious loans rather than bona fide credit sales.17
The role of the financing institution in transactions of this kind is basically a beneficial one, for the essence of their function is that of providing needed financial assistance to sellers unable to handle their own consumer financing, thus permitting those sellers to compete on a more equal footing with their more established competitors. While regulation of these activities is essential for the protection of the vital interests of the consumer, the Unruh and Rees-Levering Acts provide ample evidence of the Legislature‘s willingness to provide such regula-
The judgment is affirmed.
Tobriner, J., Clark, J., and Richardson, J., concurred.
MOSK, J.--I dissent.
The people of California have made it emphatically clear that they reject exaction of usurious rates of interest as an acceptable commercial practice. They first adopted an initiative measure by popular vote in 1918 (Deering‘s Ann. Uncod. Measures 1919-1 (1973 ed.) p. 35; 10 West‘s Ann. Civ. Code (1954 ed.) foll. § 1916 at p. 123) and in 1934 felt deeply enough committed on the subject to write the prohibition against usury into the state Constitution. (Former
In response to this unmistakable legislative intent of the people, courts have been alert to pierce the veil of any plan designed to evade the Usury Law. (Milana v. Credit Discount Co. (1945) 27 Cal.2d 335, 340 [163 P.2d 869, 165 A.L.R. 621].) As we have often noted, substance not form must dictate the treatment that a transaction is to be accorded under the Usury Law. (Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 927 [117 Cal.Rptr. 541, 528 P.2d 357].) A conscious attempt to evade the Usury Law is not necessary; usury may be found where there has been nothing more than knowing receipt of sums above the legal rate of interest. (Burr v. Capital Reserve Corp. (1969) 71 Cal.2d 983, 989 [80 Cal.Rptr. 345, 458 P.2d 185].)
Pursuant to the foregoing general rules, the Court of Appeal reviewed the evidence and held the instant transaction, despite its subtle form, to be a usurious loan. Since I agree with that court‘s conclusion, I adopt as my dissent the opinion of Justice Dunn, concurred in by Justices Kingsley and Jefferson. The opinion, excepting only its additional discussion of constitutionality, follows:
Florentine Boerner and other named plaintiffs1 commenced a class action in usury against The Colwell Company. The second amended complaint alleged that the class represented by plaintiffs consisted of all persons who were obligated to defendant in purported credit sales which were, in fact, loans providing for the payment of interest at rаtes in violation of the Usury Law. Pursuant to stipulation of the parties the cause was bifurcated, and liability to be tried first. Trial of the liability issues was by the court, without a jury. Judgment was entered in favor of defendant, and against plaintiffs. Plaintiffs appeal from the judgment.
The evidence, all of which was uncontradicted, showed: defendant, The Colwell Company, is a mortgage banking firm; it has an installment contract department, which was formed in 1961 for the purpose of purchasing contracts for the construction of home improvements and vacation homes; defendant‘s legal counsel concluded that such transactions involved the purchase of contracts created through credit sales, and therefore were governed by the Unruh Act (
The evidence also showed: FWF Construction Company agreed to construct a vacation home for plaintiff Boerner and her husband on their real property; Nordic Mountain Homes agreed to construct a vacation home for the other named plaintiffs (hereinafter referred to as the Wards) on real property which they jointly owned; the plaintiffs were told by the respective builders that construction of the homes was contingent upon the obtaining of financing; in each case the builder arranged to have the construction financed by defendant in accordance with the procedure described above; the cash price of the Boerner home was $9,875; the lien contract and deed of trust executed by the Boerners fixed the finance charge аt $10,378.60, for a deferred price of $20,253.60, payable in 180 monthly installments of $112.52 each; the credit sale disclosure statement stated that the annual percentage rate of the finance charge was 12.45 percent; the cash price of the Ward home was $15,100; the lien contract and deed of trust executed by the Wards fixed the finance charge at $16,874.40, for a deferred price of $31,974.40, payable in 180 monthly installments of $177.08 each; according to the credit
The trial court found, as facts: a bona fide sale transaction occurred between plaintiffs and their respective builders; the contracts between plaintiffs and the builders were credit sales and not parts of loan transactions clothed in the form of credit sales; the respective assignments of the builders’ rights to defendant were assignments of rights under credit sales, and were not loans by defendant to plaintiffs in the form of assignments.
The basic Usury Law is set forth in
The distinction between a sale and a loan is defined as follows in Milana v. Credit Discount Co., supra, 27 Cal.2d at pages 339-340: “A sale is the transfer of the property in a thing for a price in money. The transfer of the property in the thing sold for a price is the essence of the transaction. The transfer is that of the general or absolute interest in property as distinguished from a special property interest. A loan, on the other hand, is the delivery of a sum of money to another under a contract to return at some future time an equivalent amount with or without an additional sum agreed upon for its use; and if such be the intent of the parties the transaction will be deemed a loan regardless of its form. . . . [¶] In a sale the delivery of the absolute property in a thing and the receipt of a price therefor consummate the transaction. In a loan the initial transaction creates a debit and credit relationship which is not terminated until replacement of the sum borrowed with agreed interest.”
All of the facts in this case indicate that the transactions were loans, not credit sales. Thus: the builders informed plaintiffs that construction of the vacation homes was contingent upon plaintiffs’ obtaining financing; the builders did not offer to finance the construction, or to extend credit to plaintiffs; they agreed to build the homes only if plaintiffs could provide the necessary funds; to this end, the builders put plaintiffs in contact with defendant; plaintiffs applied for credit to defendant, not to the builders, and it was defendant who passed upon plaintiffs’ credit and determined whether or not to finance the construction on their behalf;
These facts indicate that, as between plaintiffs and defendant, the transactions, in substance, created an obligation on defendant‘s part to pay the cash price to the builders on plaintiffs’ behalf, and an obligation on plaintiffs’ part to pay an equivalent sum to defendant, plus the finance charge. Therefore, the transactions were loans. A similar conclusion was reached in National Bank of Commerce of Seattle v. Thomsen (1972) 80 Wn.2d 406 [495 P.2d 332], wherein the court stated (at p. 338): “It is correct that one who sells goods or services on credit is not a lender of money. But a third party who pays the seller on behalf of the purchaser is, insofar as his relations with the purchaser are concerned, a lender of money. In a case such as this, where the purchase is financed from the beginning, there is never a true conditional sale. The sale is complete as far as the vendor is concerned. He does not extend credit to the purchaser; rather, he is paid in full at the time of purchase. The ‘conditional sale contract’ is then but a security device to protect the party who finances the purchase.” (Italics in original.) (See also Hare v. General Contract Purchase Corp. (1952) 220 Ark. 601 [249 S.W.2d 973, 977-978]; Annot. (1967) 14 A.L.R.3d pp. 1151-1153, § 21.)
It is true that where a finding of either a loan or a sale can be inferred from the facts, an appellate court may not substitute its judgment for that of the trial court. (West Pico Furniture Co. v. Pacific Finance Loans, supra, 2 Cal.3d at p. 604; Baruch Inv. Co. v. Huntoon, supra, 257 Cal.App.2d at p. 492.) However, the evidence in this case is subject to only one reasonable inference, viz.: the transactions in question were
For the reasons stated in the foregoing opinion of the Court of Appeal, I would reverse the judgment.
Bird, C. J., and Newman, J., concurred.
Appellants’ petition for a rehearing was denied May 24, 1978. Mosk, J., was of the opinion that the petition should be granted.
Notes
Defendant filed a cross-complaint against FWF to recover $7,864.52, representing the cash price of the home less the sum paid by Boerner on the contract. Judgment for this sum was entered in favor of defendant and against FWF on the cross-complaint. No appeal was taken from that judgment.
The cash price of the Boerner home was $9,875. The finance charges under the lien contract and deed of trust amounted to $10,378.60-yielding a deferred payment price of $20,253.60, payable in 180 monthly installments of $112.52 each. The truth-in-lending statement indicated that the finance charge represented an annual percentage rate of 12.45 percent.
Following assignment of the Boerner lien contract and deed of trust to Colwell it was discovered that certain material misrepresentations had been made by the builder, FWF Construction Compаny, and a reassignment was made to the builder pursuant to the provisions of the assignment. (See fn. 3, ante.) Thus, Colwell did not hold the Boerner contract at the time of trial. It filed a cross-complaint against FWF Construction Company regarding this matter, and the judgment entered included an award in its favor and against FWF for $7,864.52, representing the stated cash price of the home less the sum paid by Boerner on the lien contract. FWF did not appeal, and this aspect of the judgment does not concern us here.
It is clear from the subject legislation that the lawmakers intended thereby to remove transactions of the type here in question from the controls of the Unruh Act. It is somewhat less clear whether they also intended to abrogate any indication in Morgan that such transactions were to be deemed secured by personal rather than real property; while this point may be of considerable significance in circumstances involving default by the buyer (see Hetland, Cal. Real Estate Secured Transactions (Cont.Ed.Bar 1970) § 6.43, pp. 301-305; Prunty v. Bank of America (1974) 37 Cal.App.3d 430 [112 Cal.Rptr. 370]; Hetland, Secured Real Estate Transactions (Cont.Ed.Bar 1974) §§ 9.27, 9.34, pp. 218, 221; Note, Prunty v. Bank of America: An Expanding Concept of “Purchase Money” (1975) 12 Cal. Western L.Rev. 142), it is of no relevance to the instant inquiry because a bona fide credit sale may involve either real (see Verbeck v. Clymer, supra, 202 Cal. 557), or personal property. To assert, as plaintiffs essentially do, that the legislative
It is true that our observations on this point necessarily lead to the conclusion that a bona fide credit sale transaction of the type described in