DePoortere v. Commercial Credit Corp.
| Decision Date | 15 October 1973 |
| Docket Number | No. 9391,9391 |
| Citation | 500 S.W.2d 724 |
| Parties | Jerry E. DePOORTERE and Leslie F. DePoortere et al., Plaintiffs-Appellants, v. COMMERCIAL CREDIT CORPORATION et al., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Scott B. Tinsley, J. Douglas Cassity, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for plaintiffs-appellants.
James B. Lowe, Frank Brockus, Kuraner, Dingman, Brockus, Kinton & Lowe, Kansas City, for defendant-respondent Comm. Credit Corp. William H. Curtis, Karl F. Schmidt, John W. Cowden, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, Glenn A. Burkart, Mann, Walter, Burkart & Weathers, Springfield, for defendant-respondent Universal C.I.T. Corp.
Flavius B. Freeman, Joseph A. Bohrer, Neale, Newman, Bradshaw & Freeman, Springfield, for defendant-respondent Citizens Bank of Springfield.
The Circuit Court of Greene County sustained defendants' separate motions to dismiss pliantiffs' class-action petition for its failure to state a claim upon which relief could be granted. Rule 55.33, V.A.M.R. More particularly, the court nisi opined that plaintiffs, and those they purported to represent, were not entitled to recover under the Missouri Motor Vehicle Time Sales Law (Ch. 365 RSMo 1969) because it 'is inapplicable to new mobile homes having a cash sale price in excess of $7,500.' Plaintiffs appealed.
Ere examination of the petition, it seems argute to know some of the definitions and provisions of Chapter 365. The term 'motor vehicle,' as used in the law, is defined as 'any new or used automobile, mobile home, (et certera) having a cash sale price of seven thousand five hundred dolloars or less . . ..' (Our emphasis). § 365.020(5). 'Cash sale price' is 'the price . . . for which the seller would have sold to the buyer, and the buyer would have bought from the seller, . . ., if the sale had been a sale for cash or at a cash price instead of a retail installment transaction at a time sale price.' § 365.020(1). 'Time sale price' is 'the total of the cash sale price . . . and the amount, . . ., included for insurance and other benefits . . . and time price differential.' § 365.020(15). The definition of 'time price differential' is 'the amount, however denominated or expressed, as limited by section 365.120, in addition to the principal balance to be paid by the buyer for the privilege of purchasing the motor vehicle on time to be paid for by the buyer in one or more deferred installments.' § 365.020(14). Under § 365.120 'the time price differential included in a retail installment transaction shall not exceed' $7 per $100 per year on '(a)ny (Class 1) new motor vehicle designated . . . by a year model not earlier than the year in which the sale is made,' or $10 per $100 per year on '(a)ny (Class 2) new motor vehicle not in Class 1 and any used motor vehicle designated . . . by a year model of the same or not more than two years prior to the year in which the sale is made,' or $13 per $100 per year on '(a)ny (Class 3) used motor vehicle not in Class 2 and designated . . . by a year model more than two years prior to the year in which the sale is made.' Any person who knowingly violates any provision of the law is guilty of a misdemeanor and subject to the prescribed punishments. § 365.150--1. Also, 'Any person violating sections 365.070, 365.080, 365.090, 365.100, 365.110, 365.120, 365.130 or 365.140 shall be barred from recovery of any time price differential, delinquency or collection charge on the (retail installment) contract.' § 365.150--2.
According to the diffuse petition (it consumes ten pages of the transcript), plaintiffs and those they champion are retail buyers (§ 365.020(9)) of mobile homes having a cash sale price (§ 365.020(1)) in excess of $7,500. It is alleged that all involved purchases were made via retail installment contracts (§ 365.020(10)) 'on which a time price differential (§ 365.020(14)) equal to 10 to 13 per cent interest is unlawfully being collected' by defendants and those of that ilk. Defendants, individually and in their representative capacity, are averred to be sales finance companies (§ 365.020(13)) engaged in the business of purchasing retail installment contracts from one or more retail sellers (§ 365.020(12)) of mobile homes and holders (§ 365.020(3)) of retail installment contracts made in violation of the Missouri Motor Vehicle Time Sales Law. Plaintiffs prayed that the court 'order the maned Defendants and each and every member of the Class of Defendants to refund all money collected from Class Plaintiffs attributable to any time price differential, collected illegally as alleged in this Petition, and that this Court order that Class Plaintiffs make payments of the principal balance only during the remaining term of each contract referred to herein.' To personify the concerned transaction and plaintiffs' personal involvement, the petition sets forth a 1971 security agreement (substantially in form prescribed by § 365.070) 1 executed by plaintiffs in connection with the retail installment purchase of a new 1971 mobile home; defendant Universal C.I.T. Corporation is said to be the holder of this security agreement which, in part, states:
The petition is difficult for ready comprehension. Perhaps this results from plaintiffs' initial assertion 'that the cash sale price of the mobile home was over $7,500.00 and therefore did not qualify as a 'motor vehicle' as defined by Section 365.020(5),' and their apparent ultimate endeavor to use a portion of the alleged inapplicable law (§ 365.150, subd. 2) to bar defendants 'from recovering any time price differential.' In addition, some portions of the petition suggest an action based on a complaint that defendants included a time price differential in excess of the percentages allowable by § 365.120. However, when the pleading is sufficiently winnowed and ventilated with plaintiffs' brief and oral argument, the epitome of their postulation lies in the declaration that by enacting Chapter 365 the 'legislature has mandated that motor vehicle time sale only be permitted with respect to vehicles having a cash price of $7500.00 or less.' In other words, the exact issue presented is whether the General Assembly, by enacting Chapter 365 to regulate time price differential sales of motor vehicles having a cash sale price of $7,500 or less, thereby outlawed and prohibited the making of retail installment contracts evidencing a time price differential sale of motor vehicles having a cash sale price in excess of $7,500. 2
At least in theory, the consumer intent upon ownership of personal assets proving household services, transportation and recreation has the choice of using cash, an ordinary loan or an installment sales plan. The enviable buyer able to pay cash has no financing problems; those who secure a loan are sheltered by the usury laws; but until the advent of sales finance laws, a purchaser on the installment sales plan under the cash-price-time-price dichotomy had little or no protection. 68 Yale L.J., William D. Warren--Regulation of Finance Charges in Retail Instalment Sales, pp. 839--868; 44 Cornell L.Q., William E. Hogan--A Survey of State Retail Instalment Sales Legislation, pp. 38--73. Much litigation has resulted in Missouri over the sometime distinction between a loan of money governed by the usury statutes and a time price differential sale which does not violate the usury laws. Lucas v. Beco Homes, Inc....
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