State ex rel. Cooper v. Nccs Loans, Inc.

620 S.E.2d 697, 2005 N.C. App. LEXIS 2392, 2005 WL 2848029
CourtCourt of Appeals of North Carolina
DecidedNovember 1, 2005
DocketNo. COA04-1660.
StatusPublished

This text of 620 S.E.2d 697 (State ex rel. Cooper v. Nccs Loans, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Cooper v. Nccs Loans, Inc., 620 S.E.2d 697, 2005 N.C. App. LEXIS 2392, 2005 WL 2848029 (N.C. Ct. App. 2005).

Opinion

*700LEVINSON, Judge.

Defendants (NCCS Loans, Inc.; JAGJRTX, LLC; JAG N.C., LLC, d/b/a "Advance Internet" and "Advance Til Payday"; and John Gill), appeal from summary judgment entered in favor of plaintiff (State of North Carolina). We affirm.

"The question before us, which appears to be one of first impression, requires us to determine whether a company's policy of extending to its customers an immediate cash `rebate,' as well as [use of its office computers for a few hours a week, by appointment, to access the internet], in exchange for a one-year commitment to make bi-weekly payments in an amount equal to five times the amount of the rebate, is tantamount to the operation of a small loan business in violation of [North Carolina's] usury laws." Short on Cash.Net v. Dep't of Finan., 811 N.E.2d 819, 824 (Ind.Ct.App.2004). The Defendant NCCS Loans is a corporation which until 31 August 2001 did business in North Carolina through its "Advance Til Payday" check-cashing stores, where it offered deferred deposit loans. On 1 September 2001 defendant closed Advance Til Payday, and reopened its stores under the name "Advance Internet." Corporate defendant JAGJRTX, LLC succeeded NCCS as owner of Advance Internet. On 12 February 2002 plaintiff filed suit against defendants NCCS Loans, Inc., and JAGJRTX, LLC, d/b/a "Advance Internet" and "Advance Til Payday." Plaintiff sought injunctive and other relief for (1) usury, in violation of N.C. Gen.Stat. § Chapter 24; (2) violation of the North Carolina Consumer Finance Act, N.C. Gen.Stat. § 53-166; and (3) unfair and deceptive trade practices, in violation of N.C. Gen.Stat. § 75-1.1. In March 2003 plaintiff moved to amend its complaint to add two additional defendants, JAG N.C., LLC d/b/a "Advance Internet" and "Advance Til Payday"; and John Gill. Defendants consented to the addition of JAG N.C., LLC. Gill was added by court order entered in June 2003. Plaintiff also filed a motion for summary judgment, which was heard by the trial court in June 2004. On 9 September 2004 the court entered an order granting summary judgment in favor of plaintiff on all claims. Defendants have appealed the summary judgment order. "Summary judgment is an appropriate disposition only `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'" Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 578-79, 573 S.E.2d 118, 123 (2002) (quoting N.C. Gen.Stat. § 1A-1, Rule 56(c) (2001)). Defendants herein argue that the trial court erred by granting summary judgment for plaintiff, on the grounds that the evidence raised genuine issues of material fact as to whether they violated the Consumer Finance Act, made usurious loans, or engaged in unfair or deceptive trade practices. We disagree.

"Interest is the premium allowed by law for the use of money, while usury is the taking of more for its use than the law allows. It is an illegal profit." Yarborough v. Hughes, 139 N.C. 199, 207, 51 S.E. 904, 907 (1905). "The elements of usury are [1] a loan or forbearance of the collection of money, [2] an understanding that the money owed will be paid, [3] payment or an agreement to pay interest at a rate greater than allowed by law, and [4] the lender's corrupt intent to receive more in interest than the legal rate permits for use of the money loaned." Swindell v. National Mortgage Ass'n, 330 N.C. 153, 159, 409 S.E.2d 892, 895-96 (1991) (citations omitted). "Usury statutes are designed to protect the borrower whose necessity and importunity may place him at a disadvantage with respect to the exactions of the lender[.]" Mortgage Co. v. Zion Church, 219 N.C. 395, 397, 14 S.E.2d 37, 38 (1941) (quoting Hill v. Lindsay, 210 N.C. 694, 699, 188 S.E. 406, 409 (1936)).

Regulation of commercial loans is addressed in the North Carolina Consumer Finance Act, N.C. Gen.Stat. § 53-164 et seq. (2003). Under N.C. Gen.Stat. § 53-168 (2003), all commercial lenders must obtain a license from the North Carolina Commissioner of Banks. In addition to being licensed, lenders may not charge interest "greater than permitted by Chapter 24" on loans of less than $10,000. N.C. Gen.Stat. § 53-166 (2003). Chapter 24, in turn, provides that *701the annual rate of interest on commercial loans of $25,000 or less may not exceed sixteen percent (16%). N.C. Gen.Stat. § 24-1.1 (2003). In sum, for an unlicensed lender to charge more than 16% interest on a small loan is a violation both of the Consumer Finance Act, and of Chapter 24's prohibitions on usury. In the instant case, it is undisputed that defendants are not licensed by the Commissioner of Banks.

However, usury laws apply only to loans, not to sales. Auto Supply v. Vick, 303 N.C. 30, 47-48, 277 S.E.2d 360, 372 (1981) ("If there is a bona fide purchase of property as opposed to a subterfuge to conceal a loan at a usurious rate, then the usury laws have no application whatsoever, even though the sale is made at an exorbitant price."). A loan is "made upon `the delivery by one party and the receipt by the other party of a given sum of money, an agreement, express or implied, to repay the sum lent, with or without interest.'" Kessing v. Mortgage Corp., 278 N.C. 523, 529, 180 S.E.2d 823, 827 (1971) (quoting 54 C.J.S. LOANS, p. 654) (other citations omitted). Significantly, N.C. Gen.Stat.

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620 S.E.2d 697, 2005 N.C. App. LEXIS 2392, 2005 WL 2848029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-cooper-v-nccs-loans-inc-ncctapp-2005.