North Am. Mtg. Investors v. Cape San Blas

378 So. 2d 287
CourtSupreme Court of Florida
DecidedDecember 20, 1979
Docket52144
StatusPublished
Cited by12 cases

This text of 378 So. 2d 287 (North Am. Mtg. Investors v. Cape San Blas) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
North Am. Mtg. Investors v. Cape San Blas, 378 So. 2d 287 (Fla. 1979).

Opinion

378 So.2d 287 (1979)

NORTH AMERICAN MORTGAGE INVESTORS, a Massachusetts Business Trust, Petitioner/Cross-Respondent,
v.
CAPE SAN BLAS JOINT VENTURE, a Georgia Partnership, et al., Respondents/Cross-Petitioners.

No. 52144.

Supreme Court of Florida.

December 20, 1979.

J. Marshall Conrad of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, and Julian D. Clarkson of Holland & Knight, Fort Myers, for petitioner/cross-respondent.

*288 Ernest W. Welch of Welch & Munroe, Tallahassee, for respondents/cross-petitioners.

Guy B. Bailey, Jr. and Jesse C. Jones of Bailey & Dawes, Miami, for Cameron-Brown Investment Group.

Richard L. Lapidus of the Law Offices of Richard L. Lapidus, Miami, for Sailboat Key, Inc.

W. Robert Olive, Jr. and Hugh M. Taylor, Tallahassee, for Hamilton Investment Trust.

Thomas G. Schultz of Glass, Schultz, Weinstein & Moss, Coral Gables, for Continental Mortgage Investors.

SUNDBERG, Justice.

This case is before us by way of petition and cross-petition for writ of certiorari from a decision of the District Court of Appeal, First District, reported at 357 So.2d 416. The petition asserts conflict with Sumner v. Investment Mortgage Co., 332 So.2d 103 (Fla. 1st DCA 1976), upon the issue of whether corrupt intent by the principal to collect more than the lawful rate of interest is an essential element in proving usury where a broker's commission is collected and retained by the agent of the principal. The cross-petition asserts conflict with Continental Mortgage Investors v. Sailboat Key, Inc., 354 So.2d 67 (Fla. 3d DCA 1977), as to the proper penalty to be assessed against a lender who violates the provisions of chapter 687, Florida Statutes (1975), in a loan transaction with a corporate borrower where the obligation exceeds $500,000. The trial court determined the penalty to be forfeiture of the interest paid. Cross-petitioners maintain that Continental Mortgage Investors stands for the proposition that the penalty should be forfeiture of double the amount of the interest paid. Jurisdiction is predicated upon article V, section 3(b)(3), Florida Constitution.

While the mortgage loan transaction out of which this controversy arises is complex in the extreme, our disposition of the case renders unnecessary a detailed recitation of the facts surrounding the transaction. For our purposes it need only be stated that respondents were borrowers through a corporate vehicle from petitioner (NAMI), a real estate investment trust. The loan was for the gross sum of $4,250,000 bearing interest at a rate equal to 3 1/2% per annum over the prime rate with a ceiling of 15% per annum secured by a mortgage on real estate in Gulf County, Florida. The term of the loan was one year with provision for extension prior to maturity upon payment of a fee equal to 1/6 of 1%. The option to extend was exercised by the borrowers. The financing was procured through Sonnenblick-Goldman Corp. (SG), a mortgage broker which worked in concert with and shared a brokerage commission with a co-broker in the transaction. Sonnenblick-Goldman Advisory Corp. (SGA) acted as loan advisor to the petitioner and serviced the loan. SGA enjoyed a separate corporate existence from SG, having been incorporated some four to five months prior to the closing of the loan transaction here at issue. Before the incorporation of SGA the functions of that entity were carried on by SG on behalf of petitioner. At the time of this transaction SG and SGA shared common office facilities, and a number of SGA employees were formerly employees of SG and had performed essentially the same functions prior to the incorporation of SGA. There was also substantial interlocking stock ownership by the stockholders of SG and SGA. Furthermore, the stockholders of SG and SGA were also stockholders of petitioner, although they held a minority interest. Although SG brokers through and SGA represents other lenders, petitioner dealt exclusively through SGA. SGA derives its income solely from the lenders it represents based upon a percentage of the amount of loans outstanding. A representative of SG presented the instant loan application to a representative of SGA who, after calling for certain modifications, approved the loan application and presented it to petitioner's executive committee for acceptance.

Following the original maturity date and during the extension period exercised *289 by respondents, respondents brought suit for declaratory judgment to determine whether petitioner had violated the usury laws by charging more than 15% per annum for the loan. Pending suit, respondents paid under protest the full amount of principal and interest demanded by petitioner. The trial court found that both the broker's commission collected by SG and the extension fee must be considered interest on the loan, and that either charge would cause the interest rate to exceed 15% per annum. The trial court, in recognition of the principles enunciated in Dixon v. Sharp, 276 So.2d 817 (Fla. 1973), stated that if the only evidence upon which to find usurious intent was the agreement for and payment of the extension fee, usury would not have been proved. However, in view of its finding that petitioner was guilty of intentionally and purposefully causing the broker's commission to be collected on behalf of its agent, the trial court concluded that the extraction of both the commission and the extension fee constituted the collection of usurious interest and entered judgment against petitioner for $768,387.78, which included the commission, the extension fee and all interest collected. The District Court of Appeal, First District, affirmed, expressly approving and adopting the conclusions and reasons set forth in the final judgment of the trial court.

Petitioner raises four points for our consideration. We paraphrase them as follows: (i) whether the trial court correctly applied the "corrupt intent" requirement of Dixon v. Sharp; (ii) whether there was sufficient evidence to support a finding of corrupt intent to violate the usury statute; (iii) whether a broker's commission can be considered as interest if the lender derives no benefit therefrom; and (iv) whether the trial court pyramided inferences in order to support its findings. It is unnecessary to deal with the issues in the fashion raised by petitioner, for after a careful review of the record and the applicable law we conclude that neither is there conflict between the decision under review and Sumner v. Investment Mortgage Co., nor has the able trial judge erred in his findings of fact or conclusions of law in winding his way through a complex and thorny thicket of fact and law.

Regarding conflict. Although apparent similarities exist between this case and Sumner v. Investment Mortgage Co., there is one striking and dispositive dissimilarity. In Sumner the defendant, Investment Mortgage Company of Florida, was the lender. Service Mortgage Brokers, Inc., a subsidiary of the lender, was the broker. Service was incorporated to broker loans that previously had been brokered by Investment. The two corporate entities shared the same offices and expenses and had identical employees, stockholders, officers and directors. The interest rate charged by Investment did not exceed the legal rate. The brokerage fee collected by Service did not exceed that authorized by chapter 494, Florida Statutes (1975). The combined interest and commission, however, did exceed the legal rate of interest chargeable under section 687.03, Florida Statutes (1975). Citing to Dixon v. Sharp,

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