343 Mass. 169 | Mass. | 1961
This bill of complaint is entitled as one for declaratory relief, and is so described,by the parties in their briefs. The plaintiff is the maker of a promissory note, dated January 15, 1960, in the amount of $9,750, payable to the defendant in weekly instalments of $62.50. Of
The substantial issue before us is the effect of “An Act limiting interest rates on home mortgages,” St. 1959, c. 505, § 1, which became effective January 1, 1960, and inserted §§ 90A-90D in Gr. L. c. 140,
The judge in addition to the facts hereinbefore recited made other findings. The note does not contain as separate items the principal sum, the rate of interest or its equivalent in money, and the periodic due dates of principal and interest.
The judge ruled that despite G. L. c. 59, § 11 (as amended through St. 1958, c. 549, § 2), which provides that taxes on real estate shall be assessed to the owner (with exceptions not now material) on January first, the assessed value, within the meaning of § 90A, on January 15, 1960, was $8,600, and hence the note violated both § 90A and § 90B.
Other findings were that the plaintiff has repaid $3,750, and on November 23,1960, made a tender of $1,375, “which at that time would have equalled the amount of $5,000,” but this the defendant refused; and that a reasonable fee for the services of the plaintiff’s attorney was, as authorized by § 90D, $400.
The judge ruled that at the date of filing the bill of complaint, there was due under § 90C “no more than $5,000, the amount of principal”; and that the lender had no right to collect interest under § 90B. The final decree ordered that upon payment of $1,250 the defendant should cancel the note, discharge the real estate mortgage, do certain other acts (not now subject to controversy) and pay $400 counsel fees, and costs of suit. The defendant appealed.
The defence is that the increase in assessed valuation to more than $10,000, which became known on April 23, 1960, extricated the loan transaction of January 15, 1960, from the operation of the statute. In support of his contention the defendant endeavors to import into § 90A the provisions of the assessing statute, namely G. L. c. 59, §§ 11, 23,
The final decree is affirmed, with an additional counsel fee of $200 for services on appeal, and with costs of appeal.
So ordered.
Section 90A contains an exception: “This section and sections ninety B to ninety D, inclusive, shall not apply to a loan secured by a first mortgage on real estate.”
A subsequent amendment by St. 1960, e. 446, is immaterial.
Section 90B provides in part: “If any note secured by such a mortgage and any such mortgage does not, among its provisions, specify as separate items the principal sum, the rate of interest or its equivalent in money, the period of the loan and the periodic due dates, if any, of principal and interest, the lender shall have no right to collect interest.”