Talbert v. First National Bank in Center

664 S.W.2d 126, 1983 Tex. App. LEXIS 5404
CourtCourt of Appeals of Texas
DecidedNovember 23, 1983
DocketNo. 12-82-0081-CV
StatusPublished
Cited by1 cases

This text of 664 S.W.2d 126 (Talbert v. First National Bank in Center) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Talbert v. First National Bank in Center, 664 S.W.2d 126, 1983 Tex. App. LEXIS 5404 (Tex. Ct. App. 1983).

Opinions

McKAY, Justice.

This is an appeal from a summary judgment rendered in favor of the First National Bank in Center and against Marion and Nancy Talbert.

On September 5,1978, Marion and Nancy Talbert executed a note to the First National Bank in Center in the amount of $11,-871.34, along with a security agreement granting the bank a security interest in a 1978 Chevrolet Van. On October 5, 1979, Marion and Nancy Talbert were divorced. In the divorce decree Marion Talbert was ordered to assume and discharge the indebtedness.

Appellee, First National Bank in Center, brought suit to collect the amount left un[128]*128paid on the note after the collateral had been repossessed and sold by the bank. The bank sued the Talberts for $4,083.12, plus interest at the rate of ten (10%) percent per annum from the date of maturity until the date of judgment.

Marion Talbert failed to answer the suit. Appellant Nancy Talbert filed an answer and a counterclaim against the bank and a cross-claim against her former husband, Marion Talbert. Nancy Talbert’s counterclaim against the bank alleged that the note sued upon violated Tex.Rev.Civ.Stat.Ann. art. 5069-1.04, et seq. (Vernon 1971), and art. 5069-4.01, et seq. (Vernon 1971), in that the interest rate in the note was usurious. She alleged that the bank violated Tex.Bus. & Comm.Code Ann. (Tex. UCC) § 9.504 (Vernon Supp.1977) in that the bank’s repossession and disposition of the collateral was not made and conducted in a commercially reasonable manner. Nancy Talbert also alleged that the bank violated Tex.Bus. & Com.Code Ann. § 17.46 (Vernon Supp. 1977) in representing that the bank’s services possessed characteristics and benefits which they did not have, and the bank employed other false and misleading practices.

The bank filed a motion for summary judgment. Nancy Talbert responded to the motion and also filed a motion for summary judgment. The court overruled Nancy Tal-bert’s motion for summary judgment and granted the bank’s motion for summary judgment. Nancy Talbert appeals the granting of the motion for summary judgment.

Nancy Talbert’s sole point of error is: “The trial court erred in granting summary judgment against appellant because the note upon which this suit is based shows on its face that appellee contracted for interest in excess of that permitted by law.”

The note provides for an annual percentage rate of 9.75% and for additional interest upon default at the rate of $.05 for each $1.00 of any installment unpaid for more than 10 days. The note further provides for eleven monthly installments of $200.00 each and one final installment of $9,671.34. The amount financed was $10,907.83, and the finance charge was $963.51. Nancy Talbert contends that the note in this case provides for add-on interest at the rate of 9.75% per annum which is a usurious rate.

The note provides for an annual percent age rate of 9.75%, not an add-on interest charge of 9.75%. Nancy Talbert failed to distinguish between add-on interest and annual percentage rate. Add-on interest is a method of calculating interest payments where a percentage of the desired principal is used to calculate the interest cost. The interest cost is then added to the principal to calculate the total amount to be repaid by the borrower. Annual percentage rate is a percentage which results from an equation considering three specially defined factors: amount financed, finance charge, and the term of the loan. The actuarial method is the system of calculations used to find the annual percentage rate (APR), whereby unearned interest can be calculated, and is defined in the Federal Truth-In-Lending Act (TIL), 15 U.S.C.A. § 1606 (1982) as follows:

The annual percentage rate [is] ... that nominal annual percentage rate which will yield a sum equal to the amount of the finance charge when it is applied to the unpaid balances of the amount financed, calculated according to the actuarial method of allocating payments made on a debt between the amount financed and the amount of the finance charge, pursuant to which a payment is applied first to the accumulated finance charge and the balance is applied to the unpaid amount financed.

Even though the face of the note discloses an annual percentage rate of 9.75%, in reality the bank actually only charged the Talberts an annual percentage rate of 9.39%. Since the term of the loan was one year, the annual percentage rate can be converted to a monthly basis by dividing by 12, or .0939 divided by 12 equals .007825. Accordingly, the monthly interest rate will then reduce the $10,907.83 loan to zero at the end of twelve months. The interest allocable to the first month is determined by multiplying the monthly rate, or .007825, [129]*129by the principal amount of the loan, producing an amount of $85.35 as the initial month’s interest charge. Thus, the new balance after receipt of the first installment of the loan will be $10,907.83 plus $85.35 minus $200.00, or $10,793.18. Table 1 illustrates the true successive monthly balances computed to demonstrate the annual percentage rate of 9.39% for the loan in this case.

TABLE 1

(A) Month of Loan (B) Interest (C) Principal (D) Balance

1 $ 85.35 $ 114.65 $10,793.18

2 84.46 115.54 10,677.64

3 83.55 116.45 10,561.19

4 82.64 117.36 10,443.83

5 81.72 118.28 10,325.55

6 80.80 119.20 10,206.35

7 79.86 120.14 10,086.21

8 78.92 121.08 9,965.13

9 77.98 122.02 9,843.11

10 77.02 122.98 9,720.13

11 76.06 123.94 9,596.19

12 75.09 9,596.19 0.00

$963.51

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Bluebook (online)
664 S.W.2d 126, 1983 Tex. App. LEXIS 5404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/talbert-v-first-national-bank-in-center-texapp-1983.