Bowles v. D. Mitchell Investments, Inc.

363 So. 2d 1106, 1978 Fla. App. LEXIS 16924
CourtDistrict Court of Appeal of Florida
DecidedOctober 3, 1978
DocketNo. 77-205
StatusPublished
Cited by3 cases

This text of 363 So. 2d 1106 (Bowles v. D. Mitchell Investments, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowles v. D. Mitchell Investments, Inc., 363 So. 2d 1106, 1978 Fla. App. LEXIS 16924 (Fla. Ct. App. 1978).

Opinions

PER CURIAM.

This is an appeal by two of three plaintiffs in a mortgage foreclosure action from a final judgment which limited the sum recoverable by imposing a penalty for usury. Although multiple issues were presented for our consideration, we need only consider the single dispositive issue of whether the court was correct in its finding that the testimony of plaintiffs’ accountant reflected a particular sum as the total interest paid or due from the commencement of the loan until its stated maturity date.

The record reflects that on January 8, 1975, three plaintiffs, Baker Mortgage Company, Cameron-Brown Investment Group and Beneficial Standard Mortgage Investors, filed a complaint to foreclose a mortgage which was originally arranged between Baker and the defendant, D. Mitchell Investments, Inc., on July 6, 1972. On November 8,1973, in consideration of an additional loan from Baker, Mitchell delivered a supplemental promissory note to Baker together with a modification to the mortgage. Plaintiffs Cameron and Beneficial participated with Baker in making the loans. Since May, 1974, the defendant was in default.

At trial, the primary issue to be resolved was whether or not the loan was usurious. Plaintiffs stipulated that the principal sum due on the mortgage loan was $3,242,000.00, and defendant conceded that the interest received, taken or extracted did not equal or exceed 25% per annum. Voluminous testimony was taken during a three-day trial. Some six months after the conclusion of the trial, the court rendered its final judgment. The trial judge made the following findings of facts:

[1107]*11071. On or about July 6, 1972, Baker, acting on behalf of itself as a participant and as agent for Cameron, entered into a construction loan transaction with Mitchell. The loan was evidenced by a promissory note dated July 6,1972, under which the sum of $2,000,000.00 was to be advanced. The note was secured by a mortgage of like date on the property . The note provided for payment of interest at 9% per annum, or 4% above the prime rate of [a certain bank], whichever amount was greater. Baker participated in the loan to the extent of $200,000.00 while Cameron participated to the extent of $1,800,000.00.
2. On November 8, 1973, Baker, acting on behalf of itself as a participant and as agent for Cameron and Beneficial, entered into a “Modification to Mortgage Deed” with Mitchell, and increased the mortgage loan to $3,250,000.00, which increase was then evidenced by an additional note for $1,250,000.00, dated November 8, 1973. This note provided for payment of interest of 14% per annum, or 4% above the prime rate of [the bank], whichever was the higher rate.
3. Advances were made under the mortgage and construction loan agreement of July 6, 1972, as modified by the agreement of November 8,1973, until the total sum of $3,242,000.00 was advanced to Mitchell.
4. Baker, a professional mortgage lender, continued to handle all the matters pertaining to the placing and servicing of said loan and the increase thereof, and was a participant in the loan to the extent of $200,000.00 while Cameron and Beneficial, both professional mortgage lenders, each participated equally in the ownership of the balance of the loan and advanced equal funds in connection with the funding of same.
5. Although the notes did not become due until May 8,1975, in May of 1974, the loan went into default and as of October 28, 1974, Baker on behalf of itself and its participants, made demand for past due interest, then unpaid in the sum of $252,-554.54, together with the unpaid principal amount of $3,242,000.00.
6. The total interest as computed by the Plaintiffs as being paid or due from the date of commencement of the loan up to and including the maturity date of the loan of May 8, 1975, as reflected by the testimony of the Plaintiffs’ accountant, was $996,055.09, of which sum $534,324.73 was paid.
7. With the exception of an accountant who was called by the Plaintiff, whose testimony was relied upon by this Court to determine the rate of interest charged, no single witness or officer of any of the three Plaintiff companies has testified or endeavored to explain or refute in any manner the testimony establishing the usurious nature of the transaction.
8. It has been established by unrefuted, clear and convincing testimony, that Baker, acting as a participant and as the authorized agent of Cameron and Beneficial, received, and in some instances divided with Cameron and Beneficial, the following additional fees, commissions, payments or extractions, each of which should be added to the interest paid or demanded:
A. A 2% discount to Baker and/or Cameron _$ 40,000.00
B. A disbursement fee to Baker_$ 2,000.00
C. A title insurance kickback to Baker, in excess of the cost of the title policy written by Baker_$ 7,184.50
D. A discount fee divided between Cameron and Beneficial _$ 48,750.00
E. A disbursement fee to Baker_$ 8,125.00
P. An administration fee to Baker $ 500.00
G. An application fee to Baker_$ 12,500.00
H. A brokerage commission fee to Baker, by way of a note and second mortgage on the property_$ 65,000.00
I. Improvements made to Baker’s office and paid for by Mitchell ... $ 3,000.00
J. Pee received by Baker and admitted by Affidavit as an extra interest charge _$ 15.500.00
Total additional charges_8202.550.50
(Citations omitted)
9.When the foregoing charges or extractions are added to the total interest paid, demanded or extracted, as reflected previously, in the amount of $996,055.09, the sum paid, demanded or extracted, as [1108]*1108interest is the amount of $1,198,605.59. The maximum sum allowable as interest at 15% per annum for the sums outstanding from time to time, for the period of the loan as testified to by the Plaintiffs’ witness is the sum of $1,006,157.47.
10. The sums paid, demanded or extracted, exceed the maximum permitted by Florida Statute, by $192,442.62. The total cumulative interest, fees, commissions and extractions paid, demanded or extracted, when reduced to a percentage, yields a true rate of interest on the sums outstanding from time to time of 18.2% per annum.
11. That the taking of such interest, fees, commissions and/or extractions, is contrary to the provisions of Chapter 687, Florida Statutes, and is in violation thereof. The penalties as therein provided should be assessed against the Plaintiffs. (Emphasis supplied)

The court ruled that the plaintiffs hold a valid first mortgage on the property in the principal sum of $3,242,000.00.

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Bluebook (online)
363 So. 2d 1106, 1978 Fla. App. LEXIS 16924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowles-v-d-mitchell-investments-inc-fladistctapp-1978.