Ceraolo v. Smith ( 1933 )

In proceedings to enforce a mortgage lien upon real estate given to secure the payment of a negotiable promissory note for $5000.00 payable in three years with interest at 8% per annum, the Chancellor found in effect that under Sections 6936 (4851), 6939 (4852), Compiled General Laws, 1927, the note secured by the mortgage is usurious in that the actual amount loaned was $4500.00, $500 having been reserved as a bonus. Amounts totaling $1000.00 were reserved or paid as interest. The decree contains the following:

"Amounts actually loaned by Smith to Ceraolo $4500.00 Attorney's fees .............................. 250.00 -------- $4750.00

Less double the amount of interest actually paid by the Mortgagor ...................... 2000.00 -------- net amount due $2750.00"

A decree was rendered against the mortgagor for $2700.00. Defendant appealed claiming a larger forfeiture for the usury.

The amounts that under the statute should for the usury be forfeited and deducted from the amount actually loaned are double the $500.00 reserved by the lender but included in the note, and also double the $1000.00 actually reserved by or paid to the mortgagee as interest, making a total of $3000.00 to be deducted from the $4500.00 actually loaned to and received by the mortgagor. Sherman v. Myers, 108 Fla. 129, 146 So.2d 213. The opinion in Sherman v. Myers was filed in this Court after the decree herein was rendered in the circuit court.

The amount allowed for attorney fees should have appropriate relation to the amount recoverable.

Reversed for appropriate decree.

DAVIS, C. J., and WHITFIELD, ELLIS, TERRELL and BUFORD, J. J., concur.