Boerner v. Colwell Co

In Boerner v. Colwell Co. (1978) 21 Cal.3d 37, the Supreme Court held that a financial institution's "central position" in shaping a credit sale transaction between the seller and buyer "from the outset" did not operate to convert the resulting transactions, including a contemplated assignment to the financing institution, into a loan subject to the usury laws. ( Id. at pp. 50, 52-53.) Boerner, in our view, is dispositive, and compels the conclusion that the financing transactions at issue are exactly what they purport to be: bona fide conditional sale contracts followed by assignments. Boerner v. Colwell Co. involved installment contracts for the construction of vacation homes, in which the builder arranged financing for the purchaser with Colwell, a mortgage banking firm. The builder and the purchaser were the parties to the installment contracts, which were then purchased by Colwell. Colwell and the builder agreed in advance upon the conditions on which Colwell would accept the builder's contracts for purchase. Colwell provided the builder with the necessary forms, including a credit application and a lien contract/deed of trust, and advised the builder of the finance charge to be used to render the contract acceptable for assignment. ( Boerner v. Colwell Co., supra, 21 Cal.3d at p. 41.) The forms were filled out and executed by the purchaser and builder and submitted to Colwell, which performed a credit check and other investigations. If the results were acceptable, Colwell would inform the builder and purchaser of its acceptance of the contract and would record the assigned contract and deed of trust. At that point, the purchaser became bound to pay Colwell the deferred purchase price in monthly installments as reflected in the assigned lien contract. ( Id. at p. 42.) The purchasers brought suit alleging the contracts were usurious loans. The trial court concluded the transactions "were bona fide credit sales and 'not parts of loan transactions clothed in the form of credit sales'--and that the respective assignments of the builder's rights to Colwell were 'an assignment of rights under a credit sale and were not loans by Colwell in the form of assignments.'" ( Boerner v. Colwell, supra, 21 Cal.3d at p. 43.) The Supreme Court affirmed, answering "clearly no" to the question whether "the mere participation by a ... financing institution ... operates to convert what would otherwise be regarded as a bona fide credit sale ... into a 'loan'" subject to the usury laws. ( Id. at p. 52.)