New York Credit Men's Adjustment Bureau v. Samuel Breiter and Co

In New York Credit Men's Adjustment Bureau v. Samuel Breiter and Co., 2 Cir., 253 F.2d 675, 677 (1958), the U.S. Court of Appeals for the Second Circuit, in a very exhaustive opinion, reviews the decisions of New York bearing on the question here involved. That Court sustained the validity of notes discounted by a non-banking commercial lender under circumstances not unlike those existing in the instant case. In the course of that opinion it is among other things, said: 'Regardless of the wisdom of not allowing recovery against the maker or endorser on an unsecured loan where the lender has charged a flat sum included in the face of the note for the cost of the money in place of charging at a percentage rate, such a distinction loses all validity in the case of a secured transaction. Appellant argues that the exception in section 18 merely permits the making of non-discounted loans and that 'It had nothing to do with separate and distinct banking power to make 'discounts' on such loans in violation of the Banking Law.' But a corporation 'engaging in the business of loaning money' on secured evidences of indebtedness would in the normal course of business make loans to which interest and other charges would be added. There would appear to be no reason for engrafting onto this exception a restriction prohibiting the expression of interest and other charges in a lump sum and within the face amount of the note. Such a transaction would not fall within the category of a discount even though the amount received in relation to the note given might be the same. Appellant's argument is not a new one, and has already been presented to and rejected by New York courts. Amherst Factors, Inc. v. Kochenburger, 1957, 4 A.D.2d 745, 164 N.Y.S.2d 815; Williams-Dexter Co. v. Dowland Realty Corp., supra. (259 N.Y. 581, 182 N.E. 189). The exception in section 18, enacted in 1935, merely codified the existing law on secured transactions. Prior case law made no distinction between real or personal property as security (Pratt v. Eaton, supra (79 N.Y. 449); Duncomb v. New York H. & N.R. Co. 84 N.Y. 190), and upheld the validity of secured loans even where the notes had been discounted. As the court noted in Antipyros Co. v. Samuel Breiter & Co., Inc., 1957, 8 Misc.2d 310, 165 N.Y.S.2d 976, affirmed 4 A.D.2d 941, 167 N.Y.S.2d 1002, in holding that discounted notes secured by a chattel mortgage were not void, there can be no rational reason for drawing a distinction based upon the type of security underlying the notes. In Amherst Factors, Inc. v. Kochenburger, supra, the precise reason given by the Appellate Division for enforcing the discounted notes as well as the security was that 'the guarantee and mortgage were executed simultaneously with the making of the loan and discount and as part of a single transaction.' So here the notes, made at the same time as the loan and mortgage, merely evidenced the total amount due, consisting of principal, interest and charges, and fixed the dates of the various installment payments. Thus they, too, were a 'part of a single transaction.' While the transaction in the Amherst Factors case involved real property security, as pointed out above, no different result should be reached where the security is personalty (Wolf v. Aero Factors Corp., supra (D.C., 126 F.Supp. 872); Antipyros Co. v. Samuel Breiter & Co., Inc., supra). 'For years the practice of lending money against security has been carried on by non-banking institutions. Naturally, where loans are made to companies of questionable financial standing, as is so evident here, the risks are great and the lender will exact high interest and impose other charges. But whether the interest is added in advance or is called a discount affects neither the interest rate nor the morals of the transaction.'