FILED JAN 18 2023 ORDERED PUBLISHED SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT
In re: BAP Nos. NC-22-1103-SGB E. MARK MOON, NC-22-1117-SGB Debtor. (cross-appeals)
MILESTONE FINANCIAL, LLC, Bk. No. 20-30711 Appellant/Cross-Appellee, Adv. No. 20-03117 v. E. MARK MOON; LORI H. MOON, OPINION Appellees/Cross-Appellants.
Appeal from the United States Bankruptcy Court for the Northern District of California Dennis Montali, Bankruptcy Judge, Presiding
APPEARANCES: Bernard Kornberg, Esq. of Practus LLP argued for appellant/cross-appellee; John P. McDonnell, Esq. argued for appellees/cross-appellants.
Before: SPRAKER, GAN, and BRAND, Bankruptcy Judges.
SPRAKER, Bankruptcy Judge:
INTRODUCTION
When is a usurious forbearance not a usurious forbearance?
According to the California Supreme Court, when it is a mere modification
of a credit sale transaction under the “time-price” doctrine. Ghirardo v.
Antonioli, 8 Cal. 4th 791, 804 (1994), as modified on denial of reh'g (Feb. 2, 1995). Ghirardo held that a pre-foreclosure modification of a credit sale
transaction—including a forbearance on collection or enforcement of the
underlying debt—is not subject to California’s usury laws. Id. (citing with
approval DCM Partners v. Smith, 228 Cal. App. 3d 729, 739 (1991)). Ghirardo
reasoned that the seller otherwise can and likely will foreclose and then
could charge a “new” buyer—including the prior owner—a high interest
rate free of usury law constraints as part of a new credit sale. Id. Ghirardo,
therefore, concluded that applying usury laws to credit sale modifications
would elevate form over substance. Id.
Milestone Financial, LLC appeals from the bankruptcy court’s
judgment that its Settlement Agreement, Indemnity and First Amendment
to Promissory Note Secured by Deed of Trust (”Settlement Agreement”)
with chapter 7 1 debtor E. Mark Moon, and his wife Lori H. Moon, was a
usurious forbearance. It contends that Ghirardo’s holding should be
extended to forbearances subject to California’s usury laws when the
original loan transaction was subject to, but exempt from, those laws. We
disagree with Milestone that Ghirardo can, or should be, extended to cover
the Settlement Agreement. Accordingly, we AFFIRM the bankruptcy
court’s usury ruling.
The Moons cross-appeal from the bankruptcy court’s award of post-
maturity interest on the obligation underlying Milestone’s forbearance.
Unless specified otherwise, all chapter and section references are to the 1
Bankruptcy Code, 11 U.S.C. §§ 101–1532.
2 None of the Moons’ arguments persuade us that we should depart from
the settled rule that creditors generally are entitled to interest at
California’s legal rate when the loan matures but remains unpaid. Thus, we
also AFFIRM the bankruptcy court’s post-maturity interest ruling.
FACTS2
A. The Milestone loan and the subsequent Settlement Agreement.
The Moons purchased their residence in 1993. In late 2014, facing
foreclosure, Lori Moon filed bankruptcy but dismissed it several months
later as part of the Moons’ efforts to refinance with Milestone. In May 2015,
the Moons applied for a loan from Milestone to pay off the outstanding
mortgage encumbering their residence. Roughly a month later, the Moons
borrowed from Milestone $795,000, payable in two years, and used the loan
to pay off all existing encumbrances against their residence. A licensed real
estate broker represented the Moons in obtaining the Milestone loan.
The Moons executed a promissory note (“Note”) in favor Milestone
providing for interest only payments of $7,482.94 per month with a balloon
payment for the balance due on July 31, 2017. The Note specified that
interest would accrue on the loan at a rate of 11.30% per annum. The
Moons secured the Note with a deed of trust against their residence.
Almost immediately, the Moons began to struggle to make the
2 We exercise our discretion to take judicial notice of documents electronically filed in the underlying bankruptcy case and adversary proceeding. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003). 3 required payments on the loan. At times, Milestone needed to advance tax
and insurance payments for the residence. Roughly a year into the loan, in
an attempt to stave off foreclosure, the parties entered into the Settlement
Agreement. Neither party was represented by a real estate broker in
entering into the Settlement Agreement.
The parties’ recitals reflect that the principal purpose of the
Settlement Agreement was to extend the maturity date of the Note, which
was reset to come due on July 31, 2019. Despite this evident purpose, the
Settlement Agreement contained a provision stating that neither party
intended or understood the Settlement Agreement to qualify as a loan or
forbearance. The Settlement Agreement also identified the outstanding
principal balance of the Note as $902,525.34 and reduced the interest rate
from 11.30% to 11.05%. The new monthly payment under the Settlement
Agreement was $8,310.75, which again paid interest only. The Settlement
Agreement also added a provision that any past due payment, “including
the final balloon payment,” would incur a 10% late charge. As
consideration for the extension of the maturity date and for the interest rate
reduction, the Moons agreed to pay Milestone $6,008.71.
B. The lawsuit, the bankruptcy filing, and the adversary proceeding.
The Moons again fell behind on their payments and other loan
obligations. As a result, in February 2019, Milestone notified the Moons
that it was accelerating the loan, that the entire loan balance needed to be
paid off by March 3, 2019, and that a 10% late fee would be assessed unless
4 the loan balance was paid by that date.
The Moons did not pay off the loan balance. They did, however, seek
to refinance the balance with a new lender and requested a payoff
statement from Milestone to facilitate those efforts. According to the
Moons, Milestone was slow to provide the payoff statement and issued
multiple quotes with differing amounts. They also contend that the quotes
included inaccurate and illegal charges for late fees, interest accrual, and
other charges, which significantly inflated the payoff amount. Each of the
payoff quotes included a 10% “acceleration penalty.” Milestone explained
that this was a late charge for nonpayment of the accelerated balloon
payment as provided for in the Settlement Agreement.
In September 2019, Milestone recorded a notice of default. In
November 2019, the Moons sued Milestone in the San Mateo Superior
Court. The operative complaint is the Moons’ first amended complaint for
breach of contract, fraud, intentional interference with contract, and
declaratory relief. The complaint sought damages and an injunction of
Milestone’s foreclosure proceedings. The gravamen of the claims focused
on Milestone’s conduct in providing the payoff quotes. For instance, the
Moons alleged that Milestone breached its contract “by demanding a
payoff amount far in excess of the amount required by any contract, and
demanding amounts that were illegal under the law.”
Though the state court initially issued a temporary restraining order,
it denied the Moons’ motion for a preliminary injunction. Shortly
5 thereafter, Mr. Moon filed a voluntary chapter 13 petition, which he later
converted to chapter 11. In October 2020, the Moons removed the state
court litigation to the bankruptcy court thereby commencing the
underlying adversary proceeding.
C. The cross-motions for summary judgment in the adversary proceeding.
The Moons moved for partial summary judgment, but their moving
papers focused on three claims not raised in their complaint. They sought
determinations that the Settlement Agreement was a usurious forbearance
which rendered the 11.05% interest rate void, that the 10% “acceleration
fee” on the balloon payment was an illegal and unenforceable penalty, and
that the other late fees Milestone assessed were unenforceable and
improperly charged multiple times against a single missed payment.
Milestone opposed the Moons’ summary judgment motion and
moved for summary judgment to dismiss the four causes of actions stated
in the first amended complaint. Milestone originally asserted that the
Settlement Agreement was exempt from usury restrictions under Cal. Civ.
Code § 1916.1 because Carolyn Stuart, one of Milestone’s owners, was a
licensed real estate broker and was involved in the parties’ entering into
the Settlement Agreement.3 Alternately, Milestone claimed that the
Settlement Agreement was neither a loan nor a forbearance subject to
California’s usury laws under the holdings of Ghirardo v. Antonioli, 8 Cal.
3 Milestone abandoned this argument on appeal. 6 4th 791, 804, (1994), as modified on denial of reh'g (Feb. 2, 1995); and DCM
Partners v. Smith, 228 Cal. App. 3d 729, 739 (1991).
The court issued a memorandum decision in January 2022, resolving
the cross-motions for summary judgment. It granted Milestone summary
judgment dismissing the declaratory relief cause of action holding that the
Moons failed to state a claim for relief. On the other hand, the court
determined that there were triable issues of fact with respect to the Moons’
fraud and intentional interference claims.
On the breach of contract claim, the court initially expressed an intent
to deny summary judgment. According to the court, neither of the parties
established whether Milestone’s payoff demands were in excess of the
contractual amount owed or whether Milestone thereby breached the
parties’ contract. Even so, the court later granted summary judgment in
favor of the Moons on their “Second Cause of Action” for breach of
contract. However, it held only that the Moons were not liable for interest
prior to the maturity date of the loan, or for the acceleration fee, and that
the $902,525.34 principal amount owed needed to be reduced to the extent
the Moons paid pre-maturity interest.
The court determined that Milestone’s charges for pre-maturity
interest were unenforceable because the Settlement Agreement was a
usurious forbearance. It explained that Cal. Civ. Code § 1916.1’s exemption
for broker-orchestrated loans and forbearances did not apply because
Milestone’s forbearance was not connected to a contemporaneous or prior
7 sale, lease, or exchange of real property. The bankruptcy court also rejected
Milestone’s arguments positing that all forbearances arising from exempt
loans also should be exempt from usury restrictions.
Though the court disallowed the acceleration fee, it validated
Milestone’s other late fees as legally enforceable.
After further briefing, the court additionally held that even though
Milestone’s charge for pre-maturity interest was unenforceable, California
law was clear that the Moons were still liable for post-maturity interest at
the legal rate. The Moons then advised the court that they were willing to
dismiss their three surviving claims for relief.
The court entered final judgment on May 25, 2022. The judgment
granted the Moons relief on their second cause of action for breach of
contract “which reduces the amount owed to Milestone secured by [the
Moons’ residence].” Per the Moons’ election, the bankruptcy court
dismissed the remaining claims for relief with prejudice. The judgment
specified that Milestone was owed $751,009.91, which reflected
adjustments from the principal amount of $902,525.34 for payments made,
amounts advanced, and post-maturity interest accrued.
Milestone appealed the bankruptcy court’s usury ruling. The Moons
cross-appealed from the court’s ruling on post-maturity interest.
JURISDICTION
The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334. We
have jurisdiction under 28 U.S.C. § 158.
8 ISSUES
1. Did the bankruptcy court err when it held that the Settlement
Agreement was a usurious forbearance that was not exempt from
usury restrictions under Cal. Civ. Code § 1916.1?
2. Did the bankruptcy court err when it held that Milestone was entitled
to post-maturity interest?
STANDARD OF REVIEW
Both issues on appeal present questions of law, which we review de
novo. Francis v. Wallace (In re Francis), 505 B.R. 914, 917 (9th Cir. BAP 2014).
When we review a matter de novo, we give no deference to the bankruptcy
court’s decision. Id.
DISCUSSION
A. Appeal from usury ruling.
1. California’s usury laws and the broker exemption.
California’s Constitution, article XV, section 1, states: “No person,
association, copartnership or corporation shall by charging any fee, bonus,
commission, discount or other compensation receive from a borrower more
than the interest authorized by this section upon any loan or forbearance of
any money, goods or things in action.” California’s usury law prohibits
receipt of interest in excess of the prescribed maximum when: (1) the
transaction is a loan or forbearance; (2) the borrower’s obligation to repay
both principal and interest is absolute; and (3) the lender consciously and
voluntarily takes an amount of interest, which exceeds the prescribed
9 maximum. Ghirardo, 8 Cal. 4th at 798 & n.2. During the period relevant to
this appeal, the maximum amount of interest was 10% per annum.4
There are myriad exceptions to California’s usury laws. Sw. Concrete
Prods. v. Gosh Constr. Corp., 51 Cal. 3d 701, 705 (1990). So many that it is
sometimes said that “the law’s application itself seems to be the exception
rather than the rule.” Ghirardo, 8 Cal. 4th at 807. The only exemption
relevant to this appeal is the one for transactions made or arranged by
licensed California real estate brokers (the “Broker Exemption”) set forth in
Cal. Civ. Code § 1916.1. 5 The Broker Exemption provides:
The restrictions upon rates of interest contained in Section 1 of Article XV of the California Constitution shall not apply to any loan or forbearance made or arranged by any person licensed as a real estate broker by the State of California, and secured, directly or collaterally, in whole or in part by liens on real property. For purposes of this section, a loan or forbearance is arranged by a person licensed as a real estate broker when the broker (1) acts for compensation or in expectation of
4 As amended in 1979, the constitution’s usury provision sets a 10% interest rate ceiling on all consumer loans (when the loan of “money, goods, or things in action [is] for use primarily for personal, family, or household purposes”) but for other loans permits the interest rate to exceed 10%, so long as it is not more than 5% over the prevailing rate “established by the Federal Reserve Bank of San Francisco on advances to member banks under Sections 13 and 13a of the Federal Reserve Act.” CAL CONST. art. XV, § 1 (amended 1979); see also Soleimany v. Narimanzadeh, 78 Cal. App. 5th 915, 920 & n.4 (2022) (explaining interest rate caps). The parties agree that 10% was the maximum interest available under the applicable usury laws. 5 In our discussion when we refer to an “exception” from the usury laws, we
mean that it is not subject to the usury laws. When we refer to something as “exempt” from the usury laws, we mean that it is subject to California’s usury laws but has been declared exempt from them. This is a distinction that Milestone elides, but the distinction is fatal to its argument. 10 compensation for soliciting, negotiating, or arranging the loan for another, (2) acts for compensation or in expectation of compensation for selling, buying, leasing, exchanging, or negotiating the sale, purchase, lease, or exchange of real property or a business for another and (A) arranges a loan to pay all or any portion of the purchase price of, or of an improvement to, that property or business or (B) arranges a forbearance, extension, or refinancing of any loan in connection with that sale, purchase, lease, exchange of, or an improvement to, real property or a business, or (3) arranges or negotiates for another a forbearance, extension, or refinancing of any loan secured by real property in connection with a past transaction in which the broker had acted for compensation or in expectation of compensation for selling, buying, leasing, exchanging, or negotiating the sale, purchase, lease, or exchange of real property or a business. The term “made or arranged” includes any loan made by a person licensed as a real estate broker as a principal or as an agent for others, and whether or not the person is acting within the course and scope of such license.
The Broker Exemption was first enacted by voter constitutional
initiative in 1979, which amended article XV, section 1, of the California
Constitution to exempt from the usury laws, “any loans made or arranged
by any person licensed as a real estate broker by the State of California and
secured in whole or in part by liens on real property.” The constitutional
amendment did not speak at all about forbearances. This is consistent with
the amendment’s underlying legislative purpose. The Broker Exemption
was California’s response to “a widely perceived need . . . for a greater
infusion of investment capital into the field of real estate lending.” Stickel v.
Harris, 196 Cal. App. 3d 575, 581 (1987). The theory was that a usury 11 exemption for loans made or arranged by real estate brokers was necessary
to encourage mortgage bankers and brokers to make more real estate
secured loans in California to remedy a “severely limited . . . flow of money
to California to buy homes, create job opportunities, and for other
purposes” resulting from high market rates of interest combined with
relatively low usury caps on non-exempt loans. Del Mar v. Caspe, 222 Cal.
App. 3d 1316, 1324-25 (1990).
The Broker Exemption was then refined and interpreted by the
California legislature in 1983 when it enacted Cal. Civ. Code § 1916.1. The
new statute expanded the Broker Exemption by specifically including
forbearances. As amended in 1985, Cal. Civ. Code § 1916.1 construed what
the constitution and the statute meant when they referred to loans and
forbearances “arranged by” a real estate broker. As recognized in Winnett
v. Roberts, 179 Cal. App. 3d 909, 921 (1986), “[t]he legislative interpretation
of article XV contained in Civil Code section 1916.1 is not unreasonable.
Accordingly it is entitled to, and we indulge, a strong presumption in its
favor.” See also Zager v. Lara (In re Lara), 731 F.2d 1455, 1459 (9th Cir. 1984)
(“Because Section 1916.1 presents a reasonable interpretation of Proposition
2, we must accept the legislature’s conclusion that a licensed real estate
broker need not be acting in his licensed capacity for the usury exemption
to apply.”).
2. Milestone’s arguments.
Milestone offers two somewhat inconsistent arguments why it
12 believes the Settlement Agreement was not subject to usury laws. It asserts
that a loan modification extending the Settlement Agreement’s maturity
date is not a forbearance so long as the original loan was exempt. In this
instance, the parties acknowledge that Milestone’s original loan was
arranged by a real estate broker and was exempt from the usury laws
under Cal. Civ. Code § 1916.1. Alternately, Milestone urges that even if the
Settlement Agreement qualifies as a forbearance, Cal. Civ. Code § 1916.1
should be applied broadly to include any forbearance of a loan originally
exempt under that statute. Neither argument persuades us.
a. The settlement agreement was a forbearance.
California’s usury laws apply to loans and forbearances. “A loan of
money is the delivery of a sum of money to another under a contract to
return at some future time an equivalent amount.” Sw. Concrete Prods., 51
Cal. 3d at 705 (citing Boerner v. Colwell Co. 21 Cal. 3d 37, 44, n.7 (1978)). By
way of comparison, “[a] forbearance of money is the giving of further time
for the payment of a debt or an agreement not to enforce a claim at its due
date.” Id.; see also 11 Miller & Starr, Cal. Real Est. § 37:6 (4th ed. 2022) (“A
forbearance is the extension of additional time for the repayment of an
obligation or an agreement not to enforce a claim on its due date, or
releasing and extending the borrower’s obligation for repayment.”). Thus,
“[a] forbearance occurs when the creditor, in exchange for consideration,
agrees to wait for a period of time to collect the debt.” Sheehy v. Franchise
13 Tax Bd., 84 Cal. App. 4th 280, 284 (2000).
Milestone contends that the Settlement Agreement was not a loan or
forbearance because the agreement said so. But the substance of an
agreement controls over its form. Ghirardo, 8 Cal. 4th at 799–800. It is well
settled that the label used by the parties is not controlling. See id. at 802.
The Settlement Agreement provided for a two-year extension of the
maturity date of the Note. It is undisputed that this was the principal
purpose of the parties entering into the Settlement Agreement. It also
provided the required consideration for a binding forbearance agreement
in the form of a $6,008.71 “extension fee” to be paid by the Moons. As such,
it falls squarely within the definition of forbearance applied in Southwest
Concrete Products and Boerner. Whatever motive drove the parties to declare
that the Settlement Agreement was neither a loan nor a forbearance, that
label does not help Milestone. The bankruptcy court did not err in its
finding that the Settlement Agreement constituted a forbearance for
purposes of California’s usury laws.
b. Cal. Civ. Code § 1916.1 cannot be construed to exempt all forbearances of exempt loans.
Milestone alternately argues that even if the Settlement Agreement
constitutes a forbearance, we should broadly read Cal. Civ. Code § 1916.1
as being applicable to any subsequent modifications between the parties
whenever the original loan was exempt. Milestone relies heavily on
Ghirardo and DCM Partners. It argues that their holdings should be
14 extended to the Settlement Agreement. These cases considered extensions
of credit sale transactions and concluded that they are not loans or
forbearances subject to the usury laws. According to both decisions, it
made no difference whether the parties modified the applicable interest
rate, or if it remained unchanged. Ghirardo, 8 Cal. 4th at 805-07; DCM
Partners, 228 Cal. App. 3d at 735. The modified credit sale’s terms were
excepted from usury law’s restrictions for the same reasons the original
loans were excepted. Ghirardo, 8 Cal. 4th at 804; DCM Partners, 228 Cal.
App. 3d at 739.
Ghirardo’s and DCM Partners’ treatment of credit sale extensions is
grounded in the time-price doctrine as articulated in the courts of 18th
century England. See Fox v. Federated Dep't Stores, Inc., 94 Cal. App. 3d 867,
876 (1979) (citing Floyer v. Edwards, 98 Eng. Rep. 995 (K.B. 1774)). “This
doctrine applies when property is sold on credit as an advance over the
cash price. In these circumstances, the seller finances the purchase of
property by extending payments over time and charging a higher price for
carrying the financing.” Sw. Concrete Prods., 51 Cal. 3d at 705. The United
States Supreme Court followed this doctrine in Hogg v. Ruffner, 66 U.S. 115,
119 (1861), and virtually every state has adopted it. See Fox, 94 Cal. App. 3d
at 876. California adopted the doctrine in Verbeck v. Clymer, 202 Cal. 557,
563-64 (1927), which explained, “[t]he first element of a usurious
transaction is that there be a loan or forbearance of money, for, if there is
neither, there can be no usury, unless a statute has given some definition of
15 usury inconsistent with that of the common law.” Id. at 563. A bona fide
credit sale is neither a loan nor forbearance subject to usury laws. Sw.
Concrete Prods., 51 Cal. 3d at 705. As the California Supreme Court
reasoned in Verbeck:
The owner of property, whether real or personal, has a right to name the price at which he is willing to sell. He may offer to sell at a designated price for cash, or at a much higher price on a credit, and a credit sale will not constitute usury, however great the difference between the cash price and the credit price, unless the whole transaction was in fact a mere pretense and a sham in order to camouflage the real facts.
Id. at 564 (quoting Holland-O'Neal Milling Co. v. Rawlings, 268 S.W. 683, 686
(Mo. Ct. App. 1925)).
In the decades following Verbeck, the general rule seemed to be that
the time-price doctrine did not apply to subsequent forbearances arising
from credit sales between a buyer and seller. 6 See, e.g., Lakeview Meadows
6 The annotation, Obligations covering deferred payments of purchase money, or extension thereof, as loan or forbearance within usury laws, 91 A.L.R. 1105 (1934), lucidly explains why extensions of the maturity date of purchase money secured obligations traditionally have been treated as forbearances even when the original transaction was a credit sale transaction charging an otherwise usurious rate of interest:
The extension of the time of payment of a purchase-money obligation beyond that fixed for its maturity under the original contract would seem to constitute a “forbearance of a debt,” even if it be assumed that a purchase-money obligation bearing an excessive rate of interest during the time before its maturity would not be violative of the usury laws, on the theory of absence of an actual loan or a forbearance of a debt. It would seem that even under the view of those courts which hold such transactions immune from the ban of usury laws on the theory of absence of a loan or 16 Ranch v. Bintliff, 36 Cal. App. 3d 418, 422-24 (1973) cited as unpersuasive in
DCM Partners, 228 Cal. App. 3d at 739 n.7; Clarke v. Horany, 212 Cal. App.
2d 307, 309–10 (1963), also cited as unpersuasive in DCM Partners. Ghirardo
and DCM Partners rejected the traditional rule.
In Ghirardo, the Antoniolis sold real property to a third party who
then resold it to Ghirardo. Both of these transactions were credit sales.
Ghirardo and Antonioli later settled a payment dispute by which they
restructured those debts. Ghirardo executed two “settlement notes,” both
of which charged usurious rates of interest. Ghirardo, 8 Cal. 4th at 796-97.
Ghirardo later obtained a usury judgment against Antonioli. The California
Supreme Court reversed, holding that the parties’ settlement was neither a
loan nor a forbearance. Id. at 797, 808. According to the Ghirardo court, the
settlement was merely a modification of the prior credit sale(s), so the
forbearance of a debt (because forbearance presupposes a pre-existing indebtedness, not present in a sale), a purchase-money obligation, after the time of its maturity as fixed by the original contract, stands on a different footing. The moment such obligation falls due, its association with the sale is severed. It is no more a part of the consideration for the sale. It is an obligation absolutely owing, independent of the sale out of which it arose; and any agreement for its extension can be regarded as one relating not to the consideration of the sale, but to an independent obligation, and therefore constituting a "forbearance of a debt," within the meaning of the usury laws. The fact that under the original transaction (the sale) there was no element of a loan does not detract from the merits of this conclusion, because usury may exist in the forbearance of a debt, even in the absence of an actual loan, and a loan is not a necessary prerequisite of a forbearance of a debt.
Id. at 1110-11 (emphasis added) (listing cases). 17 interest rates in the settlement notes were not subject to usury restrictions.
Id. at 808.
The Ghirardo court reasoned that in negotiating their settlement in the
shadow of foreclosure, the parties faced the same risks and economic
incentives as do a buyer and seller subject to a credit sale. Id. at 804. Thus,
the California Supreme Court explained, the same logic and policies
underlying the time-price doctrine equally supported treating the
settlement as a mere modification of the ongoing credit sale relationship
between the parties and not as a forbearance subject to the usury laws. In
Ghirardo’s own words:
We see no practical reason why the same rule should not obtain when the seller has already transferred title and is about to foreclose on the purchase money note. Just as he had an initial right to sell the property on any price terms he wished, he has the right to foreclose and to resell the property as he sees fit, at any interest rate, including reselling to the initial buyer. Precluding him from renegotiating with the buyer would elevate form over substance.
Id.
The California Supreme Court emphasized that, if the rule were that
an otherwise exempt transaction could be brought within the ambit of the
usury laws by the seller granting an extension to the buyer, sellers would
have a disincentive to negotiate with buyers and instead would be
motivated to foreclose, which would work to the detriment of both
parties—but particularly to that of buyers who would then lose their
18 property to foreclosure. Id. at 805-06.
Ghirardo drew heavily from DCM Partners, which utilized a virtually
identical analysis to reach a similar result. In DCM Partners, the owner of
real property (Smith) sold it to DCM Partners in exchange for cash and a
$108,000 promissory note bearing 10% interest secured by a deed of trust.
The note provided for interest only payments, with the principal balance
due upon the note’s maturity. DCM Partners, 228 Cal. App. 3d at 732.
Shortly before the due date for the balloon payment, the buyer determined
that he would not be able to repay the note on or before its maturity date.
Consequently, the buyer entered into negotiations with the seller by
requesting an extension of the maturity date. The seller agreed, but
required the interest rate be raised from 10% to 15% to reflect an increase in
the market rate. The buyer paid the extended note, but then successfully
sued the seller for usury. Id.
Initially, the court of appeal rejected seller’s argument that the
extension was not a forbearance because it was entered into before the note
matured. The DCM Partners court held that the definition of forbearance
was not as narrow as seller asserted and concluded that “forbearance
within the meaning of the usury law is an agreement to extend the time for
payment of the obligation due either before or after the obligation’s due
date.” Id. at 735 (cleaned up). Nonetheless, DCM Partners ultimately held
that the usury laws did not apply to “a modified purchase money secured
note initially created in an exempt transaction, the bonafide sale and
19 purchase of real property, where the modification, done at the request of
the trustor, consisted solely of increasing the rate of interest to reflect
market conditions in consideration of extending the due date of the note.”
Id. at 732.
DCM Partners was even more candid and emphatic than Ghirardo that
its decision was founded on the practical or economic effect of its decision
and the perceived unfairness if it were to decide otherwise. It frankly
admitted that “absent legislative direction or persuasive precedent a
factor underlying our conclusion that this transaction was not usurious is
the discomforting unfairness if we were to conclude otherwise.” Id. at 735
(emphasis added).
Placing Ghirardo and DCM Partners in context, credit sales are not
treated as loans nor forbearances under California law. It is for this reason
that they are not subject to its usury laws. But the Broker Exemption has a
drastically different origin from the time-price, credit-sale doctrine which
traces its origins in the common law of 18th century England. Fox, 94 Cal.
App. 3d at 876. In contrast, the Broker Exemption was formulated by voter
initiative and refined by California’s legislature. We must presume that
California’s voters and its legislature said what they meant and meant
what they said when they amended California’s constitution and enacted
Cal. Civ. Code § 1916.1. See Del Mar, 222 Cal. App. 3d at 1328. As Del Mar
explained: “It is a settled rule of statutory construction that unless
otherwise clearly intended or indicated, statutes should be construed in
20 accordance with the common or ordinary meaning of the language used,
particularly when the law as so construed is consistent with the general
policy of the state.” Id. (citations omitted).
Section 1916.1 statutorily creates an exemption to the usury laws
otherwise applicable to loans and forbearances. Nowhere in the statute is
there an exemption for a forbearance merely because the original loan
transaction qualified for that exemption. As elucidated in In re Arce
Riverside, LLC, 538 B.R. 563, 574 (Bankr. N.D. Cal. 2015):
CC 1916.1 extends the [Broker Exemption], in its opening sentence, to “any loan or forbearance” made or arranged by a licensed real estate broker. The second sentence narrows the field where it indicates that “for purposes of this section” the exemption applies only in three circumstances. The first applies to a loan (not applicable here). The second applies to “selling, buying, leasing, exchanging or negotiating the sale, purchase, lease, or exchange of real property or a business for another” and the broker either (A) arranges a loan or (B) “arranges a forbearance” in connection with that sale, purchase, lease, etc. . . . The third [circumstance] is found where the broker “arranges or negotiates for another a forbearance, extension, or refinancing of any [real property] loan . . . in connection with a past [real property sale/lease/exchange] transaction in which the broker had acted for compensation.”
On appeal, Milestone does not argue that the Settlement Agreement
specifically falls within any of the three enumerated circumstances
qualifying for the Broker Exemption. Indeed, the statute expressly exempts
from usury any broker arranged or negotiated “forbearance or extension”
21 to a real property secured loan when it is connected to a contemporaneous
or past real property sale, lease, or exchange transaction in which the same
broker acted for compensation. Cal. Civ. Code § 1916.1(2) and (3). Though a
broker represented the Moons in procuring the Milestone loan bringing it
within the statutory exemption, no broker was involved with the
Settlement Agreement. Thus, because no broker was involved with the
forbearance, the Settlement Agreement did not meet the statutory
requirements for the Broker Exemption. 7
Milestone argues that we should extend Ghirardo and DCM Partners
because strict adherence to Cal. Civ. Code § 1916.1 can lead to absurd and
inequitable results. It points to language in Ghirardo and DCM Partners
concluding that such results in the credit sale context were “somewhat
absurd and clearly inequitable.” Ghirardo, 8 Cal. 4th at 806; see also DCM
Partners, 228 Cal. App. 3d at 735. Milestone further argues that in departing
from Ghirardo and DCM Partners, the bankruptcy court ignored sound
reasoning why it makes no practical or economic sense to impose usury
restrictions on non-exempt pre-foreclosure forbearances given that the
creditor could simply foreclose and resell to a new buyer or even the prior
owner and then charge any interest rate it desired under the shelter of the
7 As the bankruptcy court emphasized, the Settlement Agreement also did not qualify for the Broker Exemption because it lacked the requisite connection to a past or contemporaneous sale, lease, or exchange of real property. 22 time-price doctrine.
Ghirardo and DCM Partners are the exception to the general rule that
forbearances are assessed independently for usury purposes. See, e.g., Strike
v. Trans-West Disc. Corp., 92 Cal. App. 3d 735, 744–45 (1979); see also 11
Miller and Starr, Cal. Real Est. § 37:6 (4th ed. 2022) (“Although the original
loan is not usurious, any extension or forbearance of the contractual due
date of the loan may be a forbearance subject to the usury limitations,
unless it is exempt by some other provision of the Usury Law.”). That
exception is limited to credit sales because they fall outside of California’s
usury laws. Milestone, however, entered into a loan, and then a
forbearance, with the Moons. Both the loan and forbearance were subject to
California’s usury laws. Milestone’s loan fell within the statutory Broker
Exemption due to the involvement of Moon’s broker but the subsequent
forbearance did not.
The results Milestone assails are not so incongruous that we are
prepared to rewrite the Broker Exemption on California’s behalf. If
California wanted to exempt under Cal. Civ. Code § 1916.1 all forbearances
of any loan originally subject to the Broker Exemption, it would have been
a simple matter for the statute to say so. Instead, the California legislature
took pains to set forth a more complex and more restrictive statutory
scheme as to when the Broker Exemption should be applied to
forbearances. Nor do we perceive our reading of this scheme as being at
23 odds with the purpose and intent of the Broker Exemption.
In short, we decline to second guess the plain meaning of Cal. Civ.
Code § 1916.1 or to impose what would amount to a judicial amendment of
the statute.
B. Cross-appeal from court’s award of post-maturity interest.
After deciding that the Settlement Agreement’s interest provision
was void as usurious, the bankruptcy court nonetheless determined that
Milestone was entitled to post-maturity interest. The bankruptcy court
relied on Epstein v. Frank, 125 Cal. App. 3d 111 (1981), which held that even
when a note includes an unenforceable usurious interest provision the
lender is entitled to recover the principal amount of the debt upon maturity
and interest at California’s legal rate if the principal is not repaid when it is
due. Id. at 122-23; see also Soleimany, 78 Cal. App. 5th at 923-24 (explaining
the scope and application of legal interest rate provisions in Cal. Civ. Code
§ 3289 and CAL CONST. art. XV, § 1). The Epstein court noted that “denial of
interest up until the maturity of the note is a sufficient deterrent against the
exacting of usurious interest.” Epstein, 125 Cal. App. 3d at 123. If the note
remains unpaid on maturity, the lender is entitled to prejudgment interest
under California law. Id.; Soleimany, 78 Cal. App. 5th at 922-23.
The Moons do not dispute that under Epstein a lender is entitled to
post-maturity interest on the unpaid principal at the legal rate even if the
contract rate of interest was usurious. Instead, they rely upon a statement
in Epstein that “[i]f the obligor improperly withholds payment of this
24 obligation it is neither unjust nor contrary to policy that he be chargeable
with interest at the legal rate from the date he was obligated to pay the note
until the date he discharges that obligation, or to the date a judgment is
rendered against him.” Epstein, 125 Cal. App. 3d at 123. They maintain that
they properly withheld payment from Milestone because of Milestone’s
misconduct. They argue that Milestone wrongfully refused to accept
payment of a non-usurious amount and improperly calculated the loan
balance with interest, fees, and charges as provided under the Settlement
Agreement. According to the Moons, the bankruptcy court erred when it
rejected their equitable and legal theories, which they believe excused them
from paying any interest on the principal balance.
We agree with the bankruptcy court that the Moons failed to
establish any legally cognizable basis to deny Milestone post-maturity
interest at the legal rate. Under Epstein and Soleimany, the right to
prejudgment interest at the legal rate commenced upon the maturity of the
loan.
The Moons asserted claims against Milestone in an attempt to deny it
any post-maturity interest. Those claims arguably could have supported an
award of damages that the Moons could have used to offset their liability,
but they have failed to offer any legitimate explanation how such claims
could negate Milestone’s right to prejudgment interest on maturity of the
loan under Epstein and Soleimany. We hold that the bankruptcy court
correctly denied the Moons’ equitable defenses to the accrual of post-
25 maturity interest as a matter of law. But even if we were to consider the
Moon’s arguments, they are unavailing.
1. Equitable estoppel does not justify a denial of post-maturity interest.
The Moons argue that Milestone’s conduct estopped it from seeking
any post-maturity interest on the principal balance owed. They focus on
the payoff demands Milestone provided containing the usurious interest
rate and the improper acceleration fee. The Moons also contend that the
payoff demands were otherwise inaccurate and that Milestone failed to
cooperate in their efforts to pay off the debt. But the bankruptcy court
never made any determination regarding the accuracy of Milestone’s
payoff demands or concerning Milestone’s cooperation. And the Moons
acquiesced to dismissal of their surviving claims at the time the court
entered summary judgment, thereby forfeiting any right to have these
surviving issues determined.
More importantly, any holding that Milestone’s usurious interest rate
or its improper acceleration fee precludes recovery of post-maturity
interest would be wholly at odds with Epstein’s holding. Simply put,
Esptein upheld the lenders’ right to post-maturity interest despite usurious
interest charges.
On a more practical level, the Moons never explained how
Milestone’s conduct satisfied the elements required to establish equitable
estoppel. Equitable estoppel ordinarily requires: “(1) the party to be
26 estopped must be apprised of the facts; (2) he must intend that his conduct
shall be acted upon, or must so act that the party asserting estoppel had the
right to believe that it was so intended; (3) the party asserting the estoppel
must be ignorant of the true state of facts; and (4) he must rely on the
conduct to his prejudice.” Butler Am., LLC v. Aviation Assurance Co., LLC, 55
Cal. App. 5th 136, 147 (2020). If the party asserting the estoppel fails to
show that he or she relied on the opposing party’s representation or
conduct to his or her detriment, equitable estoppel does not apply. Id. at
148. The Moons argue that calculating the payoff with the usurious interest
and acceleration fee constitute inequitable conduct. But the Moons never
claimed that they believed Milestone’s payoff demands were accurate or
relied on them in the course of their dealings with Milestone. To the
contrary, the record reflects that they strenuously disputed them. In short,
equitable estoppel does not apply here, and it would not help the Moons
even if it did.
2. The doctrine of unjust enrichment does not justify denial of post-maturity interest.
Citing Beck v. West Coast Life Insurance Co., 38 Cal. 2d 643, 645 (1952),
the Moons claim that the bankruptcy court’s order granting Milestone post-
maturity interest violates Cal. Civ. Code § 3517 and the statutory
prohibition against anyone profiting from their own wrong. They contend
that any award of post-maturity interest violates this principle because
they would have paid off the Note but for Milestone’s overstated payoff
27 demand. Again, this argument is at odds with Epstein which specifically
provided for post-maturity interest where the lender charged a usurious
interest rate prior to the loan maturing. Under Epstein, Milestone is not
profiting from its usurious interest rate; it is being compensated for the
Moons’ failure to pay the outstanding balance of its loan when it came due.
In any event, the Moons’ argument invoking Cal. Civ. Code § 3517
lacks merit. Beck makes clear that Cal. Civ. Code § 3517 is a codification of
unjust enrichment doctrine: “The general principle that precludes a
wrongdoer from unjustly enriching himself has been codified in section[s]
2224 and 3517 of the Civil Code and applied in a variety of situations.” 38
Cal. 2d at 645 (footnotes omitted). Unjust enrichment is an equitable
remedy. Levine v. Blue Shield of Cal., 189 Cal. App. 4th 1117, 1138 (2010);
Ramona Manor Convalescent Hosp. v. Care Enters., 177 Cal. App. 3d 1120,
1140 (Ct. App.), as modified on denial of reh'g (Mar. 5, 1986). Courts do not
apply equitable remedies when there is an adequate remedy at law—like
readily ascertainable damages. DVD Copy Control Assn., Inc. v. Kaleidescape,
Inc., 176 Cal. App. 4th 697, 725–26 (2009); Ramona Manor Convalescent Hosp.,
177 Cal. App. 3d at 1140.
The record reflects that the Moons failed to plead or prove an
entitlement to an unjust enrichment remedy, but they did assert breach of
contract and other claims against Milestone. Perhaps the Moons could have
proven that damages arose from Milestone’s overstatement of its payoff
demand, but they chose not to do so. Instead, they voluntarily dismissed
28 their remaining claims for relief and acquiesced to entry of final judgment
adjusting the balance due to exclude the usurious interest and
unenforceable acceleration fee.
3. The Moons failed to establish that Milestone’s so-called breach of contract excused their duty to pay interest.
The Moons also argue that Milestone breached its contractual
obligations by overstating its payoff demand. They point to the bankruptcy
court’s judgment which granted relief on their claim for breach of contract.
Milestone’s breach of contract, they argue, excuses them from paying any
interest on the Note. There are several problems with their breach of
contract argument.
First, promissory notes are generally considered to be a unilateral
contract. See E.B.C. Tr. Corp. v. JB Oxford Holdings, Inc., Case No. CV-
008812-RMTMCX, 2004 WL 5641999, at *1 (C.D. Cal. Oct. 26, 2004) (citing
Haulman v. Crumal, 13 Cal. App. 2d 612, 619 (1936)); 1 Witkin, Summary
11th Contracts § 107 (2022) (including a promissory note as an illustration
of a unilateral contract). Upon lending the money to the Moons, Milestone
had no further contractual obligations. Though the bankruptcy court
entered judgment on the Moons’ second cause of action in the Amended
Complaint for breach of contract including the failure to provide an
accurate payoff demand, it is unclear how any such contractual obligation
29 arose. 8
Second, the bankruptcy court’s grant of summary judgment on the
Moons’ breach of contract claim was based solely on the court’s
determination that Milestone charged usurious interest in violation of
California law and that the acceleration fee also was unenforceable. Even
though these charges were legally unenforceable under California law,
Milestone’s payoff demands including these charges still were calculated in
accordance with the terms of the parties’ Settlement Agreement. It defies
logic to say that Milestone’s adherence to the agreed upon terms of the
parties’ contract—before those terms were declared legally
unenforceable—somehow constituted a breach of contract claim that
excused the Moons’ performance of their obligation to repay the principal
balance with post-maturity interest. To the extent that the Moons stated
affirmative claims on other theories based on Milestone’s conduct, they
voluntarily forfeited those claims by electing not to pursue them in the
bankruptcy court.
8Under California law, there is a statutory duty to provide a payoff demand under Cal. Civ. Code § 2943(c), which in relevant part provides: “[a] beneficiary, or his or her authorized agent, shall, on the written demand of an entitled person, or his or her authorized agent, prepare and deliver a payoff demand statement to the person demanding it within 21 days of the receipt of the demand.” See generally Black v. Sullivan, 48 Cal. App. 3d 557, 566-67 (1975) (treating willful failure to provide a payoff demand statement as required by § 2943 as a “civil wrong” and tortious conduct). 30 4. The Moons forfeited any other arguments they might have raised.
The issue of whether the Moons might have made an appropriate
tender was raised for the first time in Milestone’s brief responding to the
Moons’ cross-appeal. A full and unconditional tender of the amount owed
on a promissory note will discharge the payor’s liability for all future
interest, costs, and attorney's fees. Still v. Plaza Marina Com. Corp., 21 Cal.
App. 3d 378, 385 (1971); see also U.S. Bank Nat’l Ass'n v. Friedrichs, 924 F.
Supp. 2d 1179, 1185–86 (S.D. Cal. 2013) (“In order for [an offer of
performance] to be valid, it must be made in good faith, unconditional,
offer full performance, and [the offeror] must be able to perform.”). The
record does not reflect that the Moons ever tendered any amount to
Milestone for the payoff of their loan.
The bankruptcy court had no opportunity to pass upon this
inherently factual issue. Nor was this issue raised in the Moons’ opening
cross-appeal brief. Consequently, the Moons forfeited this issue as well. See
Mano-Y&M, Ltd. v. Field (In re Mortg. Store, Inc.), 773 F.3d 990, 998 (9th Cir.
2014) (“In general, a federal appellate court does not consider an issue not
passed upon below. A litigant may waive an issue by failing to raise it in a
bankruptcy court.” (cleaned up)); Samson v. W. Cap. Partners, LLC (In re
Blixseth), 684 F.3d 865, 872 n.12 (9th Cir. 2012) (appellate court may decline
to address argument not raised before bankruptcy court); Christian Legal
Soc'y v. Wu, 626 F.3d 483, 487–88 (9th Cir. 2010) (issues not specifically and
31 distinctly argued in the appellant’s opening brief can be deemed forfeited).9
CONCLUSION
For the reasons set forth above, we AFFIRM the bankruptcy court’s
judgment.
9 The Moons made passing reference to Milestone’s alleged failure to mitigate near the end of their closing cross-appeal brief. It was not mentioned at all in their opening appeal brief. Thus, we decline to consider this issue as well. Christian Legal Soc'y, 626 F.3d at 487–88. 32