Midland Guardian Co. v. Thacker, No. 0097

CourtCourt of Appeals of South Carolina
Writing for the CourtGOOLSBY
Citation314 S.E.2d 26,280 S.C. 563
Decision Date12 December 1983
Docket NumberNo. 0097
PartiesMIDLAND GUARDIAN COMPANY, Respondent, v. Sarah THACKER, Appellant, and Robert Thacker, Defendant. . Heard

Page 26

314 S.E.2d 26
280 S.C. 563
MIDLAND GUARDIAN COMPANY, Respondent,
v.
Sarah THACKER, Appellant,
and
Robert Thacker, Defendant.
No. 0097.
Court of Appeals of South Carolina.
Heard Dec. 12, 1983.
Decided Feb. 24, 1984.
Certiorari Denied June 20, 1984.

Page 27

[280 S.C. 564] Lesly A. Bowers, Columbia, for appellant.

[280 S.C. 565] J. Reese Daniel, of Daniel & Daniel, Columbia, for respondent.

GOOLSBY, Judge:

This is a claim and delivery action brought by the respondent Midland Guardian Company, a finance company, to obtain possession of a 1974 model mobile home, the collateral which secured a note given by the appellant Sarah Thacker and the defendant Robert Thacker. Midland did not seek a deficiency judgment. The appellant asserted a counterclaim for damages under Section 34-31-50 of the South Carolina Code of Laws (1976), 1 alleging that the contract of sale was usurious. The trial court gave Midland possession of the mobile home and held the contract not usurious. The appellant appeals the denial of her usury claim. We reverse and remand the case to the Court of Common Pleas.

The issues before us are whether the question regarding the usury counterclaim

Page 28

presents a justiciable controversy and whether a transaction involving the sale of a mobile home on deferred payments constitutes a sale at a time price or a loan and cloak for usury.

The Thackers purchased a mobile home from Colonial Mobile Homes (Colonial). Both signed a security agreement which recited a "cash price" of Six Thousand Four Hundred Forty-two and 80/100 Dollars ($6,442.80) and a "deferred payment price" of Fourteen Thousand Forty and 80/100 Dollars ($14,040.80). It listed an annual percentage rate of thirteen and 82/100 per cent (13.82%). They promised to make one [280 S.C. 566] hundred and twenty (120) payments at One Hundred Eleven and 84/100 Dollars ($111.84) each. In bold type, the security agreement disclosed that "[t]he Buyer, having been quoted both a time price (the deferred payment price shown in item 8 above) and a lesser cash price, has elected to buy the collateral for the time price."

At the time the security agreement was executed, Section 34-31-30 of the Code 2 set the maximum interest upon written contracts at eight per cent (8%).

The security agreement was executed by the Thackers upon a form provided Colonial by Midland Guardian. Colonial assigned its interest in the security agreement and the collateral to Midland Guardian on the same day the transaction was consummated. Prior to executing the security agreement, the appellant attempted without success to secure a loan from a local bank to purchase the mobile home at the cash price.

After having paid approximately Six Thousand Dollars ($6,000), the Thackers defaulted. The balance due was Seven Thousand Four Hundred Ninety-three and 86/100 Dollars ($7,493.86).

Midland Guardian argues first that the issue regarding the appellant's counterclaim does not present a justiciable controversy. Because no deficiency was sued for by Midland Guardian and possession only of the collateral was sought and finally obtained, Midland Guardian maintains that any determination that the transaction was usurious would have "no bearing on ... the right of possession." Besides, it also argues, the offset of any damages the appellant would have been entitled to had she prevailed on her usury counterclaim would not have been sufficient to pay the remaining debt on the mobile home.

Before any action can be maintained, of course, there must exist a "justiciable controversy." Dantzler v. Callison, 227 S.C. 317, 88 S.E.2d 64, 65 (1955).

[280 S.C. 567] A justiciable controversy is a real and substantial controversy which is appropriate for judicial determination, as distinguished from a dispute or difference of a contingent, hypothetical or abstract character.

Guimarin & Doan, Inc. v. Georgetown Textile and Mfg. Co., Inc., 249 S.C. 561 at 566, 155 S.E.2d 618 (1967).

An action to recover usurious interest will lie at common law. 47 C.J.S. Interest & Usury § 210 at 360 (1982). Prior to its repeal, Section 34-31-50 prescribed that double the amount received as usurious interest could be collected as damages in an action for usury asserted as a counterclaim to an "action brought to recover the principal sum." Also, where, as in the instant case, an action is brought to recover personal property pledged to secure credit or a debt, Section 15-33-50 of the Code 3 expressly permits the assertion of a

Page 29

counterclaim which arises out of the same transaction; and such a counterclaim, obviously, can properly embrace, as here, allegations of usury.

Clearly, the appellant's counterclaim presents a justiciable controversy. The fact that Midland Guardian sought and obtained possession of the mobile home on its claim and delivery cause of action does not affect in any way the viability of the appellant's counterclaim for usury damages. If usury were established in this case, the appellant would be entitled to statutory damages irrespective of Midland Guardian's success on its claim and delivery action. As to the assertion by Midland Guardian that no justiciable controversy exists because the amount of any usury damages recovered by the appellant would be insufficient to pay the amount owed by her on the mobile home, any issue regarding the amount owed Midland Guardian by the appellant is immaterial. [280 S.C. 568] Midland Guardian, as pointed out above, did not seek a deficiency judgment; therefore, the question of a deficiency and its amount is not before us. At any rate, the appellant is entitled to seek usury damages regardless of whether a...

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6 practice notes
  • Byrd v. Irmo High School, No. 24399
    • United States
    • United States State Supreme Court of South Carolina
    • November 1, 1995
    ...from Student's record. Before any action can be maintained, there must exist a justiciable controversy. Midland Guardian Co. v. Thacker, 280 S.C. 563, 314 S.E.2d 26 (Ct.App.), cert. denied, (1984). A justiciable controversy is a real and substantial controversy which is appropriate for judi......
  • Noisette v. Ismail, No. 1365
    • United States
    • Court of Appeals of South Carolina
    • April 19, 1989
    ...an erroneous conclusion or unless the evidence is reasonably susceptible of the opposite conclusion only. Midland Guardian Co. v. Thacker, 280 S.C. 563, 314 S.E.2d 26 Cancellation of an insurance policy must be proved by a preponderance of the evidence. Edens v. South Carolina Farm Bureau M......
  • Coakley v. Horace Mann Ins. Co., No. 3929.
    • United States
    • Court of Appeals of South Carolina
    • January 24, 2005
    ...that no facts are in dispute in this case, this court can review conclusions of law based on those facts. Midland Guardian Co. v. Thacker, 280 S.C. 563, 568, 314 S.E.2d 26, 29 LAW/ANALYSIS I. The Insurance Policy "Insurance policies are subject to general rules of contract construction......
  • Coakley v. Horace Mann Insurance Co., No. 3929 (NC 1/24/2005), No. 3929
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 24, 2005
    ...that no facts are in dispute in this case, this court can review conclusions of law based on those facts. Midland Guardian Co. v. Thacker, 280 S.C. 563, 568, 314 S.E.2d 26, 29 (Ct. App. I. The Insurance Policy "Insurance policies are subject to general rules of contract construction.&q......
  • Request a trial to view additional results
6 cases
  • Byrd v. Irmo High School, No. 24399
    • United States
    • United States State Supreme Court of South Carolina
    • November 1, 1995
    ...from Student's record. Before any action can be maintained, there must exist a justiciable controversy. Midland Guardian Co. v. Thacker, 280 S.C. 563, 314 S.E.2d 26 (Ct.App.), cert. denied, (1984). A justiciable controversy is a real and substantial controversy which is appropriate for judi......
  • Noisette v. Ismail, No. 1365
    • United States
    • Court of Appeals of South Carolina
    • April 19, 1989
    ...an erroneous conclusion or unless the evidence is reasonably susceptible of the opposite conclusion only. Midland Guardian Co. v. Thacker, 280 S.C. 563, 314 S.E.2d 26 Cancellation of an insurance policy must be proved by a preponderance of the evidence. Edens v. South Carolina Farm Bureau M......
  • Coakley v. Horace Mann Ins. Co., No. 3929.
    • United States
    • Court of Appeals of South Carolina
    • January 24, 2005
    ...that no facts are in dispute in this case, this court can review conclusions of law based on those facts. Midland Guardian Co. v. Thacker, 280 S.C. 563, 568, 314 S.E.2d 26, 29 LAW/ANALYSIS I. The Insurance Policy "Insurance policies are subject to general rules of contract construction......
  • Coakley v. Horace Mann Insurance Co., No. 3929 (NC 1/24/2005), No. 3929
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 24, 2005
    ...that no facts are in dispute in this case, this court can review conclusions of law based on those facts. Midland Guardian Co. v. Thacker, 280 S.C. 563, 568, 314 S.E.2d 26, 29 (Ct. App. I. The Insurance Policy "Insurance policies are subject to general rules of contract construction.&q......
  • Request a trial to view additional results

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