MINNIE ROSS ET VIR.,
v.
ATLAS FINANCE CORP.
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In this foreclosure appeal, the Florida Supreme Court reversed the trial court's calculation of usury penalties. The court held that when a mortgage transaction is found to be usurious, the forfeiture penalty must be deducted from the actual amount of money received by the borrower, not from the face value of the note and mortgage.
The forfeiture for usury must be deducted from the actual amount received by the borrower ($3,150.00), not from the face value of the note and mortgage ($3,500.00).
“The only reversible error which we find in the record is that committed by the chancellor in deducting the forfeiture of double the amount of bonus, plus interest, from the face of the mortgage and note. This should have been deducted from the sum of $3150.00, the amount actually received by the borrower from the lender.”
The court's statement of the controlling legal principle regarding how usury forfeitures must be calculated
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Join FLexlaw to unlock all legal intelligenceAtlas Finance Corp. held a mortgage and note against Minnie Ross and her husband. The note and mortgage were for $3,500.00, but the borrower actually …
The full statement of facts, procedural history, and disposition for this case are member content.
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The appeal here is from final decree in a foreclosure suit. The defenses were interposed. One was to the effect that the mortgage was' void because it embraced the separate property of a married woman and had not been acknowledged by her separately and apart from ■her husband. The other was that the mortgage and note which it secured were so tainted with usury as to require the forfeiture of double the amount of the bonus plus double the amount of the interest paid.
' The cause was referred to a master to take testimony and make his findings. The master found in effect that the *794mortgage was not invalid because of defective acknowledgment and found that the transaction was usurious and that there should be a forfeiture of double the amount of the bonus charged and retained plus double the amount of the interest paid and that this should be deducted from the sum of $3150.00, which was the actual amount of money received by the borrower from the lender, though the note and mortgage were for $3,500.00.
Both parties excepted to the master’s report.
The chancellor sustained the exception involving the question as to whether or not the forfeiture should be deducted from the amount of the face of the note and mortgage or from the amount actually received by the borrower from the lender, and held that it should be deducted from the amount of the face of the note and mortgage, and so entered his decree.
Appeal was taken and both parties have assigned errors.
The only reversible error which we find in the record is that committed by .the chancellor in deducting the forfeiture of double the amount of bonus, plus interest, from the face of the mortgage and note. This should have been deducted from the sum of $3150.00, the amount actually received by the borrower from the lender. See Sullivan v. Thumm, 101 Fla. 1412, 136 Sou. 439; Hagan et ux. v. Need, 105 Fla. 297, 140 Sou. 916; Wilson v. Conner & Knight Construction Co., 106 Fla. 6, 142 Sou. 606.
The decree should be modified accordingly.
For the reasons stated the case is now remanded to the circuit court with directions that the decree be modified to conform with the views herein expressed, whereupon it will stand affirmed.
The cost incident to this appeal shall be pro-rated equally between the parties and so taxed.
*795It is so ordered.
Affirmed, with directions.
Whitfield, P. J., and Brown and Buford, J. J., concur.
Davis, C. J., and Ellis and Terrell, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brown v. Home Credit Co., Inc., 137 So. 2d 887 (Fla. 2d DCA 1962)…In the instant case, the double interest forfeiture must be deducted from the amount ($5,000) actually received by the mortgagor Green and not from the greater amount recited on the face of the notes and mortgage. Ross v. Atlas Finance Corp., 1934, 113 Fla. 793, 152 So. 410. In the instant case, double the interest reserved ($3,749.20) would exceed the amount actually advanced ($5,000) by Home Credit and if deducted in full therefrom would result in Home Credit owing Raymond Green’s estate $2,498.40. There…
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McGillick v. Chapman, 134 Fla. 220 (Fla. 1938)…covenanted in the mortgage. This accorded with the law and the evidence. Carr v. Cole, 119 Fla. 260, 161 So. 392; Maxwell v. Smith, 119 Fla. 389, 161 So. 566, and cases cited; Ceraolo v. Smith, 112 Fla. 399, 150 So. 611; Ross v. Atlas Finance Corp., 113 Fla. 793, 152 So. 410. The decree is affirmed. Ellis, C. J., and Terrell, Brown and Buford, J. J., concur. Chapman, J., dissents.…
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Gordon v. W. Fla. Enters. OF Pensacola, Inc., 177 So. 2d 859 (Fla. 1st DCA 1965)…om the amount actually received by the mortgagor and not from the greater amount recited on the face of the notes and mortgage. Ayvas v. Green, 57 So. 2d 30 (Fla.1952); Maxwell v. Smith, 119 Fla. 389, 161 So. 566 (1935); Ross v. Atlas Finance Corp., 113 Fla. 793, 152 So. 410 (1934). In the case sub judice, as in Brown v. Home Credit Co., supra, a forfeiture under the statute of double the amount of unlawful interest reserved would exceed the amount of principal actually advanced, and if deducted in full wou…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wilson v. Conner, 106 Fla. 6 (Fla. 1932)
- Sullivan Et Vir v. Thumm Et Ux., 136 So. 439 (Fla. 1931)
- Hagan v. Neeb, 105 Fla. 297 (Fla. 1932)