Swanson v. Gulf West Intern. Corp., 82-1441
| Decision Date | 13 April 1983 |
| Docket Number | No. 82-1441,82-1441 |
| Citation | 429 So.2d 817 |
| Parties | Robert A. SWANSON and Lila Swanson, Appellants, v. GULF WEST INTERNATIONAL CORPORATION, Appellee. |
| Court | Florida District Court of Appeals |
John W. Griffis III, Trawick & Griffis, P.A., Sarasota, for appellants.
John M. Strickland, Livingston, Patterson & Strickland, P.A., Sarasota, for appellee.
Gulf West International Corporation, appellee, filed a mortgage foreclosure action against Robert A. and Lila Swanson, who defended on the grounds of usury. After a nonjury trial, the trial court found no usury and entered final judgment ordering repayment of the loan or sale of the mortgaged property. The Swansons appeal the final judgment. We affirm.
In December 1980, the Swansons spoke to a mortgage broker employed by Gulf West Financial Corporation, a mortgage brokerage company, to obtain a mortgage loan to pay off a balloon mortgage on their property. The mortgage broker introduced the Swansons to Bart Barrish, who was president of Gulf West Financial Corporation and was also president of appellee Gulf West International Corporation, the ultimate lender in the transaction which was the subject of this suit.
A loan closing was held on January 7, 1981, in the offices of Gulf West Financial Corporation. The Swansons signed a $50,000 note and mortgage in favor of Gulf West International Corporation. A brokerage commission of $4,772.72 was disbursed at closing to Gulf West Financial Corporation, and the sum of $4,500 was withheld as interest. A total of $40,727.28 was disbursed to or for the benefit of the Swansons.
The note was for a term of six months, and the entire principal amount was due on July 7, 1981. Appellee filed suit for foreclosure on August 20, 1981, claiming that the Swansons owed $50,000 principal plus interest accruing since July 7, 1981. The Swansons answered, claiming that the loan was usurious on two grounds: (a) the Swansons alleged that the $4,772.72 brokerage commission should have been deemed interest for the purpose of determining whether the loan was usurious because Gulf West Financial Corporation was an agent of the lender and not entitled to a commission; (b) the Swansons also alleged that because $4,500 interest was collected by the lender at closing, the actual principal sum received was only $45,500. The Swansons contend that usury existed because the lender required repayment of a total of principal and interest greater than $49,595.
As to the question of the brokerage commission, there was sufficient evidence to support the trial court's determination that the brokerage commission was a legitimate brokerage charge, was not paid to the lender or an agent of the lender, and was, therefore, not interest. For example, except for Mr. Barrish who was president of both corporations, the two companies had no officers in common; they had no common stockholders; the Swansons' loan application was taken by an employee of the brokerage corporation and was submitted to several other lenders...
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