Bakke v. Buck

• Decision Date: 07 November 1978
• Docket Number: No. 3401-II,3401-II
• Citation: 587 P.2d 575,21 Wn.App. 762
• Parties: Marian P. BAKKE and John L. Bakke, Co-Executors of the Estate of Herbert Noel Bakke, Deceased, Appellants, v. Parker J. BUCK and Helen D. Buck, his wife, Respondents and Cross-Appellants, William E. Sander and Marie Sander, his wife, Lawrence Warehouse Company, a California Corporation, Crow Roofing and Sheet Metal, Inc., a Washington Corporation, Franklin Savings and Loan Association, a Washington Corporation, and Washington Mutual Savings Bank, a Washington Corporation, Defendants.
• Court: Washington Court of Appeals

Page 762

21 Wn.App. 762

587 P.2d 575

Marian P. BAKKE and John L. Bakke, Co-Executors of the Estate of Herbert Noel Bakke, Deceased, Appellants, v. Parker J. BUCK and Helen D. Buck, his wife, Respondents and Cross-Appellants, William E. Sander and Marie Sander, his wife, Lawrence

Warehouse Company, a California Corporation, Crow Roofing

and Sheet Metal, Inc., a Washington Corporation, Franklin

Savings and Loan Association, a Washington Corporation, and

Washington Mutual Savings Bank, a Washington Corporation, Defendants.

No. 3401-II.

Court of Appeals of Washington, Division 2.

Nov. 7, 1978.

J. Vernon Williams, Seattle, for appellants.

Joseph C. Finley, Seattle, for respondents and cross-appellants.

PEARSON, Chief Judge.

The estate of Herbert Bakke appeals from a summary judgment in favor of the Bucks for $26,122.89 in usury penalties and $5,000 attorney's fees against the estate. We reverse in part and affirm in part.

During the period from 1966 to 1973, Herbert Bakke loaned the Bucks $109,000. The Bucks signed promissory notes of $35,000, $25,000, $24,000, and $25,000. Shortly before Bakke's death in 1975, the Bucks still owed approximately $92,000 on the notes and had defaulted on their payments. The personal representatives of Bakke's estate elected to accelerate the debt and sued to collect. They obtained summary judgments on the second, third, and fourth notes. The validity of those judgments has not been challenged. Rather, the issues in this appeal concern the status of the first note (Note I).

Note I was originally due in 1968, but had been extended three times, the last extension continuing until 1982. The estate claimed that the Bucks owed $26,128.85, plus 12 percent interest and $2,000 attorney's fees on this note. The Bucks counterclaimed under the usury statute for more than $52,000 in penalties and $5,000 attorney's fees. See RCW 19.52.030. The Bucks contended that Note I was usurious because they had paid $2,500 for the first extension agreement on the note, in addition to the note's interest rate of 12 percent, which is the legal maximum. See RCW 19.52.020. The estate conceded that the extension agreement was usurious, but argued that Note I was not tainted by usury because the extension agreement was separate from the note. The trial court found that Note I and the extension agreement were a single contract, tainted by usury, and granted the Bucks' counterclaim for setoff of the usury penalties against the entire amount due on Note I, plus an excess judgment of $26,122.89, and attorney's fees.

On appeal, Bakke's estate raises two issues: (1) whether a suit brought on a promissory note which was not itself usurious, but was later extended by a usurious agreement, is subject to a counterclaim for usury on the entire note; and (2) whether an excess judgment may be had on a counterclaim for usury against an estate when a creditor's claim was not timely filed.

Repeating the argument made at trial, the estate contends that the usurious forbearance agreement is a separate agreement. Thus, it argues that suit can be had on the original debt, thereby avoiding application of the usury statute. In support of its argument, the estate relies on the general rule that a contract originally valid is not affected by a subsequent usurious transaction. This rule has been noted, in dictum, in Weitzman v. Bergstrom, 75 Wash.2d 693, 453 P.2d 860 (1969), Baske v. Russell, 67 Wash.2d 268, 407 P.2d 434 (1965), and Hafer v. Spaeth, 22 Wash.2d 378, 156 P.2d 408 (1945). We are convinced, however, that the general rule is not appropriate in Washington.

A close reading of the cases from jurisdictions which support the general rule shows that they depend for their rationale on statutes that make usurious contracts Void. See, e. g., In re Spiro's Will, 280 App.Div. 982, 116 N.Y.S.2d 391 (1952). A void contract cannot legally modify or extinguish an earlier valid contract, thus the original agreement remains in effect and can be sued upon. See, e. g., 45 Am.Jur.2d Interest & Usury § 247 (1969) ("An obligation that is not usurious in its inception will not be vitiated by a subsequent usurious transaction with respect thereto, for the subsequent transaction, being entirely void, cannot extinguish or affect the original valid contract." Footnotes omitted.); 91 C.J.S. Usury § 62(a) (1955) ("When the statute renders the usurious renewal void, action may be brought on the original valid obligation, which is not extinguished . . ." Footnote omitted.)

RCW 19.52.030 does not void usurious contracts, or even make them voidable. Instead, it subjects the creditor to certain penalties should he attempt to enforce the contract. As a result, courts examining modern statutes such as Washington's no longer separate a usurious extension agreement from the original note. The entire transaction is considered one contract and is usurious. Maze v. Sycamore Homes, Inc., 230 Cal.App.2d 746, 41 Cal.Rptr. 338, 16 A.L.R.3d 464 (1964). In applying this rule to the case before us, we agree with the trial court's conclusion that Note I, original debt and extension, is subject to the usury penalty and that the two agreements cannot be separated. We do not undermine the reasoning or results in Weitzman, Baske, and Hafer, supra. Although the court in those cases stated that the original debt could be separated from a subsequent usurious transaction on the same debt, this statement was dictum and not part of the holding, since in each case the suit was on the second agreement.

Having determined that the trial court was correct in deciding that the entire Note I transaction was infected by usury, the question becomes: What, if any, affirmative relief are respondents entitled to receive because of this usury? Respondents, as noted above, failed to file any timely creditor's claim in the estate. As we will discuss below, this failure to file a creditor's claim requires reversal of part, but not all, of the judgment appealed from.

We will first discuss that portion of the judgment which can be used as setoff against respondents' obligation to appellants in the Note I transaction. It has, of course, long been the rule that the failure to file a creditor's claim does not preclude using the claim as a setoff against a demand made by the estate. The effect of such a claim is limited, however, to extinguishment of the debt setoff. Peoples National Bank v. National Bank of Commerce, 69 Wash.2d 682, 420 P.2d 208 (1966). This rule is the same as that which has long been applied in cases of the defensive use of claims otherwise barred by the statute of limitations. E. g., Ennis v. Ring, 56 Wash.2d 465, 341 P.2d 885 (1959).

Applying this rule to the present case means that, without regard to the failure to file a creditor's claim, the respondents may set off the usury penalties they were awarded against the claims of the estate on the Note I transaction. To the degree that the respondents' judgment constitutes a setoff against a debt owed to the estate, it must thus be affirmed.

We now move to consideration of the $26,122.89 excess judgment awarded to respondents and the attorney's fees awarded to respondents as a result of usury by the appellant in the Note I transaction. Unlike the sums discussed above, this portion of the judgment does not constitute a setoff against a claim made by the estate on the usurious transaction. Note I was the only transaction between the parties which was infected by usury. All claims of the estate in that transaction have already been extinguished by the setoff of usury penalties against them. The excess judgment is thus a claim against the general assets of the estate as opposed to a setoff against a specific obligation.

Since the excess judgment is a claim against the general assets of the estate, and since no timely creditor's claim was filed by respondents, the excess judgment runs afoul of the provisions of Ch. 11.40 RCW. ¹ An exception to the working of the creditor's claim statute has been carved out in those cases involving setoff, but this exception is limited to extinguishment of the estate's claim. Peoples National Bank v. National...