United Kansas Bank & Trust Co. v. Rixner ( 1980 )

Holmes, J.,

concurring.

I concur reluctantly in the decision of this court. However, I cannot allow the decision to pass without voicing certain concerns about the result. No one will dispute the merit of statutes controlling usury and I certainly do not condone lending practices which take unfair advantage of persons in need and compelled to borrow money. The furnishing of credit at a rate of interest within reasonable bounds is a commercial function necessary to the survival of any free enterprise system and must be subject to reasonable controls.

At the time of the writing of this concurring opinion the prime interest rate being charged to the most responsible commercial borrowers is in excess of 17% per annum. It has been even higher within the past few years. In the instant case, a business entity, which obviously would not be considered as a candidate for a loan at the prime rate, sought and obtained a business loan and agreed to an interest figure of $539.76, which unfortunately amounted to 21.45% on an annual percentage basis. Thus the plaintiff, in an attempt to accommodate the defendants, has run afoul of the UCCC as adopted by our legislature.

As a result, the defendants have received a windfall of $4,500.00, no part of which must they repay. In addition they are to receive a bonus, by way of penalty, of $100.00 to $1,000.00, to be determined by the trial court. The plaintiff has been assessed attorney fees for defendants’ counsel at the trial level of $3,000.00, and the additional sum of $2,000.00 on appeal. In all, the error in utilizing the wrong form in accommodating the requests of the defendants results in a loss to the plaintiff in excess of $9,500.00 and a windfall to the defendants in excess of $4,500.00. In addition, the plaintiff presumably still has its own attorney fees and expenses to pay.

“The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and . . . what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere.” City of Baxter Springs v. Bryant, 226 Kan. 383, Syl. ¶ 4, 598 P.2d 1051 (1979).

The application of the provisions of the UCCC to the facts in this case produces a result which is not conducive to respect and confidence in the laws under which our society must function but this court, unfortunately, has no other option than to follow the statutes as written.

Miller, McFarland, and Herd, JJ., join the foregoing concurring opinion.