Foreign Commerce v. Bernard Tonn

789 F.2d 221, 1986 U.S. App. LEXIS 24795
CourtCourt of Appeals for the Third Circuit
DecidedApril 30, 1986
Docket85-3048
StatusPublished
Cited by3 cases

This text of 789 F.2d 221 (Foreign Commerce v. Bernard Tonn) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foreign Commerce v. Bernard Tonn, 789 F.2d 221, 1986 U.S. App. LEXIS 24795 (3d Cir. 1986).

Opinions

OPINION OF THE COURT

GARTH, Circuit Judge:

This appeal requires us to review Virgin Islands statutes, one of which prescribes the legal rate of interest, the other of which proscribes usury. We hold that the defense of usury was properly asserted by Tonn, the defendant/appellant here.

I.

On March 20, 1978, appellant Bernard Tonn purchased sliding glass doors and windows from appellee Foreign Commerce, Inc. for a total purchase price of $1,640.20. When Tonn failed to pay the balance of the purchase price within the ten-day period provided by the purchase agreement, his account was assessed a IV2 percent monthly service charge on the outstanding balance. Over a four-year period, Tonn made only sporadic payments totaling $800 on this debt. As of March 28, 1982, Tonn’s debt, including principal and the assessed monthly “service charges,” totaled $2,172.76.

On March 28, 1982, Foreign Commerce instituted an action for debt against Tonn in the Virgin Islands Territorial Court. In his answer and counterclaim, Tonn alleged that the monthly IV2 service charge violated the Virgin Islands’ usury laws. 11 V.I.C. §§ 951 et seq. On September 30, 1983, the Territorial Court held that Tonn could not rely on the usury defense. Accordingly, on January 5, 1984, the court entered judgment against Tonn for the full amount of the debt.

Tonn appealed the Territorial Court judgment to the District Court of the Virgin Islands. On December 28, 1984, 600 F.Supp. 133, that court affirmed the Territorial Court’s order. We reverse.

II.

The sole issue before us is whether the IV2 percent monthly “service charge”1 applied to Tonn’s outstanding debt by Foreign Commerce violated the Virgin Islands usury statutes.

Those statutes provide in pertinent part:

§ 951 Legal rate of interest (a) The rate of interest shall be nine (9%) per centum per annum on—
(1) all monies which have become due;
(2) money received to the use of another and retained beyond a reasonable time without the owner’s consent, either express or implied:
(3) money due upon the settlement of matured accounts from the day the balance is ascertained; and
(4) money due or to become due where there is a contract and no rate is specified.

[223]*22311 V.I.C. § 951(a).

§ 952. Usury

No person shall, directly or indirectly, receive in money, goods, or things in action, or in any other manner, any greater sum or value for the loan or use of money, or upon contract founded upon any bargain, sale or loan of wares, merchandise, goods, chattels, lands and tenements, than prescribed in this chapter.

11 V.I.C. § 952.

The district court, relying on an overwhelming majority of state precedents, noted that “a bona fide sale of consumer goods on credit does not constitute a loan within the meaning of the usury statute.” (Foreign Commerce App. at 14). Thus, according to the district court, a finance charge in excess of the highest lawful interest rate allowed is permissible if the underlying transaction is in fact a sale of consumer goods and not a loan. See e.g., Daniel v. First National Bank of Birmingham, 227 F.2d 353, 356 (5th Cir.1955). According to the district court:

The finance or service charge is generally defined as a charge for the privilege of purchasing on credit, expressed as a time price differential. It is designed to compensate sellers for additional risks and loss of interest which would ordinarily accrue upon immediate cash payment.

(Foreign Commerce App. at 14).

Usury, on the other hand, is most commonly defined as the exaction of a greater sum for the use of money than the highest rate of interest allowed by law. Evans v. National Bank of Savannah, 251 U.S. 108 (1919).

A service charge imposed on a consumer because of his failure to pay for the purchase of consumer goods within the time specified is not, according to the district court, a charge “for the use of money.” Implicit in the district court’s discussion was a distinction drawn between an installment sale and a loan. Therefore, the district court concluded, service charges of the type involved here which are in excess of the statutory interest rate are not usurious.

However, on appeal, Tonn argues that a plain reading of 11 V.I.C. § 952 discloses that the legislature of the Virgin Islands clearly has stated that the imposition of any type of charge representing an amount greater than 9% per annum on any outstanding principal balance is impermissible as violative of section 952. This is so, claims Tonn, even though other state legislatures and courts have declared the law to be otherwise.

Of particular relevance to this action, 11 V.I.C. § 952 provides: “No person shall, directly or indirectly, receive in money ... any greater sum ... upon contract founded upon any ... sale ... of ... goods ... than prescribed in this chapter [9% per annum].” Thus, pursuant to the plain language of this provision, Tonn argues that contracts for the purchase of consumer goods fall within the ambit of the Virgin Islands’ usury laws and that therefore charges in excess of 9% are prohibited.

In State ex rel. Turner v. Younker Brothers, Inc., 210 N.W.2d 550 (Iowa 1973), the Supreme Court of Iowa, applying a state usury law substantively identical to 11 V.I.C. § 952, held that a revolving credit plan providing for a IV2 percent monthly compounded finance charge violated that state’s usury laws.2 In so concluding, the Iowa court noted that the overwhelming state and federal precedent holding that credit sales were not subject to usury laws was based on the principle that “a sale of goods or property ... is not a loan or forbearance of money as required by their usury statutes.” 210 N.W.2d at 558. (emphasis added).

The Iowa court distinguished those cases based on the clear language of the Iowa usury statute, language which, the court noted, was similar to the Virgin Islands [224]*224usury statute. That statute “does not differentiate between the seller of property and the lender of money, a distinction upon which the time-price doctrine rests.” Id. at 559. Since the Iowa usury statute “expressly includes contracts founded upon any sale or loan of real or personal property,” the court held, “[tjhis plainly means the statute governs contracts for the sale of property whether such contract embodies the characteristics of a revolving charge account transaction or an installment contract.” Id.

The Iowa Supreme Court rejected the retail seller’s characterization of its finance charge as a “service charge” designed to recover its reasonable costs of extending credit.

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Related

People v. Simmonds
58 V.I. 3 (Superior Court of The Virgin Islands, 2012)
H. E. Lockhart Management, Inc. v. Hughes
40 V.I. 123 (Supreme Court of The Virgin Islands, 1999)
Foreign Commerce v. Bernard Tonn
789 F.2d 221 (Third Circuit, 1986)

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Bluebook (online)
789 F.2d 221, 1986 U.S. App. LEXIS 24795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foreign-commerce-v-bernard-tonn-ca3-1986.