Retarides v. American Mortgage & Loan Corp. (In re Retarides)

28 B.R. 606, 1983 Bankr. LEXIS 6483
CourtUnited States Bankruptcy Court, D. Connecticut
DecidedApril 4, 1983
DocketBankruptcy No. 5-82-00476; Adv. No. 205-5-82-0555
StatusPublished
Cited by1 cases

This text of 28 B.R. 606 (Retarides v. American Mortgage & Loan Corp. (In re Retarides)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Retarides v. American Mortgage & Loan Corp. (In re Retarides), 28 B.R. 606, 1983 Bankr. LEXIS 6483 (Conn. 1983).

Opinion

MEMORANDUM AND DECISION

ALAN H.W. SHIFF, Bankruptcy Judge.

In this adversary proceeding, the plaintiff seeks a determination as to the validity or [607]*607extent of various liens held by the defendants in property known as 670 Wigwam Lane, Stratford, Connecticut. More specifically, she alleges that the note secured by the defendant, American Mortgage Company, Trustee (American Mortgage), contains a usorious interest charge; that at the time the plaintiff signed the note and mortgage, she was “mentally incapable of understanding the legal significance of her actions;” 1 that the interest terms of the note are “unconscionable and inequitable;” and that American Mortgage has violated certain truth-in-lending laws. The plaintiff repeats her allegation of mental incapacity in her claim against the defendant Steak N’Onion, Inc. The plaintiff further seeks to avoid an attachment of the defendant, The Connecticut Bank and Trust Company, which stipulated to such relief being granted. Accordingly, the remainder of this memorandum concerns only the claims against the defendants American Mortgage and Steak N’Onions.

I.

MENTAL CAPACITY

On March 27, 1980, the plaintiff and her husband executed a promissory note in favor of American Mortgage in which they jointly and severally promised to pay the principal sum of $22,500.00 with interest at the rate of 20%. This obligation was secured by a second mortgage on the plaintiff’s and her husband’s residence. Similarly, the plaintiff and her husband executed a promissory note and third mortgage in favor of Steak N’Onions, Inc. in the spring of 1980. Both loans were incurred so that the plaintiff’s husband might go into the restaurant business, and on all relevant documents, the signature of the plaintiff appears.

In support of her claim that she was mentally incapable of understanding the legal significance of the documents when she signed them, the plaintiff points to the testimony of two expert witnesses. The first, a psychiatrist, saw the plaintiff on February 14 and 16, 1980. He testified in part that while “[fjrom an intellectual point of view there [was] no- reason why she shouldn’t [have been] able to understand,”2 the wisdom of her decisions “might have been influenced by her emotional state.”3 The second expert witness, a psychologist, saw the plaintiff in connection with marriage therapy between February 22, 1980 and June 22, 1980. This witness conceded that he did not evaluate the plaintiff’s mental capacity to understand legal documents during the therapy sessions, nor did he offer such an opinion at trial, and thus, his testimony fails to support the plaintiff’s contentions in that regard.

The plaintiff also relies on the testimony of her husband who stated that for several months, he had been pressuring her to sign the subject documents. He testified, for example, that he threatened to institutionalize her when she resisted. Other evidence demonstrated that the plaintiff’s resistance derived in part from a fear of the financial risk attendant to the proposed business. The plaintiff also testified that she was very nervous at the time of the signing. There is no evidence, however, that either American Mortgage or Steak N’ Onions were aware of the plaintiff’s psychological history or mental condition when she executed the subject documents. Further, there was no evidence that the plaintiff exhibited any signs or symptoms of mental incapacity at that time.

In determining the validity of the defendants’ liens, this court must look to the law of Connecticut.4 In Nichols v. Nichols, 79 Conn. 644, 66 A. 161 (1907), the Connecticut Supreme Court indicated that a grantor of real property must possess “understanding sufficient to comprehend the nature, extent, and consequences [citations omitted]” [608]*608of the relevant deeds. Id. at 657, 66 A. at 165. The burden of proving any lack of such understanding is upon the plaintiff. See Doris v. McFarland, 113 Conn. 594, 156 A. 52 (1931).

On balance, I find that the plaintiff was mentally capable of understanding the legal significance of her actions when she signed the relevant documents. Indeed, her reluctance to execute the instruments underscores her appreciation of their legal ramifications. Because of pressure by her husband (not the defendants) her business judgment may have been impaired, but such impairment does not rise to the level of being “mentally incapable of understanding the legal significance of her actions” as alleged.

II.

USURY

Connecticut General Statute § 37-4 prohibits loans that charge interest in excess of twelve per cent per year. American Mortgage does not dispute that it charged interest at a rate greater than the statutory limit, but it claims that the loan comes within an exception provided by Connecticut General Statute § 37—9. That section states in relevant part: “The provisions of sections 37-4 ... shall not affect ... (3) any bona fide mortgage of real property for a sum in excess of five thousand dollars.” The plaintiff acknowledges the exception, but claims that the mortgage here, for a sum in excess of $5,000.00, was not bona fide.

“Bona fide” within the meaning of Conn. Gen.Stat. § 37-9 implies good faith as distinguished from fraud or deception. M. Lowenstein & Sons v. British American Mfg. Co., 7 F.2d 51 (2d Cir.1925); Bridgeport Mortg. & Realty Corp. v. Whitlock, 128 Conn. 57, 20 A.2d 414 (1941); Atlas Realty Corp. v. House, 120 Conn. 661, 183 A. 9 (1936). The plaintiff essentially contends that American Mortgage deceived the plaintiff by charging a higher rate of interest than it disclosed.

Prior to the loan closing, American Mortgage presented the plaintiff and her husband with a series of documents, including a Loan Disclosure Statement. The Loan Disclosure Statement reveals, inter alia, that a mortgage on the plaintiff’s residence would secure the loan, that the amount of the loan was $22,500.00, that the amount financed was $20,550.00, that a prepaid finance charge was $1,950.00, and that the “Annual Percentage Rate” was 22.75%. In addition, the Loan Disclosure Statement listed other disbursements and showed that the plaintiff and her husband were to receive the balance of $14,123.17.

The plaintiffs claim of deception is based primarily on her allegation that the $1,950.00 prepaid finance charge, which was a brokerage fee, was added back into the amount financed. The only evidence that bears on the plaintiff’s claim is the Loan Disclosure Statement. It appears from the Loan Disclosure Statement, however, that the amount financed did not include the $1,950.00 charge. The effect of the $1,950.00 charge was accounted for by the bold designation, “Annual Percentage Rate,” after which follows the initials of the plaintiff and her husband.

In sum, I find that the loan was made in connection with a bona fide mortgage for a sum in excess of $5,000.00 and conclude that the loan was excepted Conn. Gen.Stat. § 37-4.

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28 B.R. 606, 1983 Bankr. LEXIS 6483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/retarides-v-american-mortgage-loan-corp-in-re-retarides-ctb-1983.