Zugelter v. Bank of America National Trust & Savings Ass'n

19 V.I. 561, 1983 U.S. Dist. LEXIS 10267
CourtDistrict Court, Virgin Islands
DecidedJune 2, 1983
DocketCivil No. 1981/274
StatusPublished
Cited by3 cases

This text of 19 V.I. 561 (Zugelter v. Bank of America National Trust & Savings Ass'n) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zugelter v. Bank of America National Trust & Savings Ass'n, 19 V.I. 561, 1983 U.S. Dist. LEXIS 10267 (vid 1983).

Opinion

O’BRIEN, Judge

MEMORANDUM OPINION AND ORDER

This matter is before the Court on motion of defendant Bank of America Trust and Savings Association for summary judgment in the above captioned action for damages. For the reasons set forth herein, we grant defendant’s motion and dismiss both causes of action in this matter.

[563]*563FACTS

In October of 1979, co-plaintiff Daniel W. Zugelter (hereinafter “Zugelter” or “plaintiff”) entered negotiations with defendant Bank of America Trust and Savings Association (hereinafter “the bank” or “Bank of America”) in an attempt to secure a loan. Zugelter sought to borrow $100,000 for investment purposes, in order to construct and sell a house in Estate Judith’s Fancy, St. Croix. Plaintiff initially filed a loan application with the bank in his own name, but no loan precipitated. On November 21, 1979, Zugelter filed Articles of Incorporation with the Office of the Lieutenant Governor forming a closely held corporation known as Associated Service Supply of St. Croix, Inc. (hereinafter “the corporation” or “Associated Service”). The Articles of Incorporation, drafted by Zugelter himself, listed Zugelter as President; co-plaintiff and wife, Mrs. Ann C. Zugelter, as Secretary-Treasurer; and, their son, Theodore Zugelter as vice president. Two days later Bank of America finalized a loan of $100,000 to Associated Service, the promissory note being signed by Zugelter and his wife in their capacities as corporate officers. The note was in the face value of $100,000, bearing interest at the annual rate of 17%. The loan was made pursuant to a “Corporate Resolution to Borrow” prepared for Zugelter by the bank. This resolution was also signed by plaintiffs in their official corporate capacities. The Zugelters, this time as individuals and not as representatives of Associated Service, then executed a continuing personal guarantee of the full $100,000 loan amount. The loan was secured by a second mortgage on other real property owned by plaintiffs in St. Croix.

The house was completed around December of 1980, but due to a depressed housing market, Zugelter was unable to sell it until approximately 13 months thereafter, in November of 1981.

In October of 1980, Zugelter began discussing with Bank of America the possibility of converting the loan into a conventional mortgage. The bank, in turn, began discussing with Zugelter the possibility of their leasing the Judith’s Fancy house. In December of 1980, the bank began leasing the house from Zugelter. The parties discussed an annual percentage rate of 13% for the conventional mortgage, but when the instrument was finally executed in June, 1981, the annual percentage rate was set at 16.25%.

Plaintiffs now seek relief on two separate grounds. Plaintiffs assert initially that the loan was not made to Associated Service but to them as individuals, and is thus usurious in violation of 11 V.I.C. § [564]*564952.1 Plaintiff incorporated only after he was told by the bank that incorporation was a precondition necessary for the granting of the loan. Pursuant to 11 V.I.C. § 953,2 plaintiffs now seek to recover twice the amount of the interest paid the original loan agreement.

Plaintiffs also contend that the bank orally committed to charging Zugelter an annual interest rate of 13% on the conventional mortgage. Zugelter calculated the rent to be charged the bank on that figure and signed the lease. When the conventional mortgage agreement was executed several months later, the actual annual percentage rate was 16.25%. Plaintiffs seek judgment in the difference in the amount between the interest actually paid at 16.25% and the interest promised them at 13.00%.

DISCUSSION

Fed. R. Civ. P. 56(c) allows that summary judgment may only be entered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to a judgment as a matter of law.” Summary judgment is thus classified a “drastic remedy” and it is clear “that courts resolve any doubts as to the existence of genuine issues of fact against the moving parties.” Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981); Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981).

All “inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion.” Hollinger v. Wagner Mining Equipment Co., 667 F.2d at 405; Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977). “Any reasonable inferences from the facts must be resolved in the favor of the parties against whom the judgment is entered.” Peterson v. Lehigh Valley District Council, United Brotherhood of Carpenters and Joiners, 676 F.2d 81, at [565]*56584 (3d Cir. 1982); Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981).

I. Is the Loan Usurious?

Applying these principles, while withholding actual judgment, we view the facts as if 1) Zugelter did incorporate Associated Service at the behest of the bank 2) after his being told by the bank that incorporation was a condition precedent to his getting a loan and 3) the bank requested incorporation for the sole reason that it could then legally charge a higher rate of interest. The initial question presented, is whether a bank may require a prospective borrower a higher rate of interest than could be charged an individual.

Usury is the extraction of a greater sum for the use of money than the highest rate of interest allowed by law. Evans v. National Bank, 251 U.S. 108 (1919).

The basic legal policy underlying the usury statutes is “to prevent the personal financial ruin of individuals’ from the unconscionable tactics of unscrupulous lenders who seek to derive monetary gain from the financial distress of others.

First Pennsylvania Bank, N.A. v. J.H.K. Enterprises, Inc., Joseph H. Kline, Jr., and Ethel L. Kline, 1976 St. C. Supp. 335 (May 12, 1976, Young, J.).

Under Virgin Islands’ law usury cannot be raised as a defense by a corporation. 13 V.I.C. § 347 states:

No corporation shall plead any law against usury in any court as a defense in any action instituted to enforce the payment of any bond, note or other evidence of indebtedness issued or assumed by it.

Further, the Zugelters, as individual guarantors on the corporation’s promissory note, are also precluded from interposing usury. Virgin Islands Nat’l Bank v. Eastern Caribbean Corp., 1975 St. T. and St. J. Supp. 324, (December 18, 1975, Christian, J.); But cf. First Nat’l City Bank v. Saks Construction Corp., 70 F.R.D. 417 (D.V.I.

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19 V.I. 561, 1983 U.S. Dist. LEXIS 10267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zugelter-v-bank-of-america-national-trust-savings-assn-vid-1983.