Юридические документы о лизинге.
Проект документов о лизинге учрежден 01-10-1999 ; редакция от 01-11-2001.
Международная лизинговая энциклопедия.
The International Leasing Encyclopedia by Steven Gilyeart.
Энциклопедии не было в интернет последние полтора года, но это не означает, что ее нет вообще. я взял на себя смелость разместить на этом сайте всю подборку статей (собственно энциклопедию), с указанием адресов электронных почт авторов материалов и редактора. Материал на английском языке.
The Metlife Decision: An Unsettling Precedent by Susan G. Rosenthal, Winick & Rich, P.C, New York. email@example.com
US Law--re late charges and default rates of interest MetLife Capital Financial Corporation v. Washington Avenue Associates, LP. and Lawrence S. Berger, 313 N.J. Super 525, 713 A.2d 527 (App.Div. 1998), cert. granted 156 N.J. 427 719 A.2d 1025 (1998) In a decision having widespread implications on the equipment leasing industry, the New Jersey Appellate Division held that provisions in mortgage documents which allow higher default rates of interest and late charges based upon a percentage of monthly payments, constitute improper penalties. The trial court had found that the 5% late charge did not constitute a penalty but that the 15% default interest rate did. In a bizarre judicial action, it rewrote the default provision, reducing the default rate of interest to 12.55%, namely 3% over the contract rate, finding that reduced rate to be fair and equitable. On appeal, the Appellate Division rejected the 5% late charge and the default rate of interest. The borrowers argued that both ewer unenforceable penalties, unrelated to any anticipated or actual damages suffered by MetLife. MetLife argued that the provisions were reasonable and valid liquidated damage provisions because of the difficulty of ascertaining the lender's actual damages.
The Legal Questions The questions before New Jersey's Appellate Division, therefore, were:
(i) is the late charge provided in the note reasonably related to the damage likely to be suffered by the lender in the event of a late payment of the installment due;
and (ii) are the damages unascertainable or difficult to prove. The late charge had to satisfy both criteria to be unenforceable. Because the proofs were undisputed, the Appellate Division found that there was a clear demonstration of the unreasonableness of the 5% late charge.
The Court's Reasoning The Court may have been influenced by the fact that the borrowers made all 48 preballoon payments under the loan (albeit 40 of them were late), although it is unclear from the language of the decision itself. The Court observed that "the same five percent applies whether the late installment was $1,000 or $10,000 or $100,000 and whether it was one day late or thirty or sixty." From this observation, the Court concluded that the actual damage could not be related to the duration of the breach or the amount of the installment. At the hearing, the lender's portfolio management specialist testified that the 5% late charge was the industry standard and custom, explaining that its purpose was "to assist with costs which are associated in collecting these late payments, internal cost." Lessors frequently refer to late charges as administrative fees, difficult to quantify. It is impossible to calculate the costs of telephoning and writing to a lessee, entering relevant information in computer programs and following up in a collection department that makes calls, does reports, monitors requirements being met by other departments, i.e., accounting, determines whether litigation or other enforcement techniques should be employed, etc. The Court concluded that if these internal costs represent damages, the amount of the installment was irrelevant since the collection efforts would be the same regardless of the amount of the installment; a reasonable liquidate damage provision, therefore, would be in the nature of a flat fee. Moreover, the longer the period of delinquency, the greater the cost associated with loan management, and thus a uniform 5% charge was simply not reasonable. Additional damages are the lost investment opportunity of the delayed payments for the delinquent period. If this is a true measure of damages, however, then the length of the default is relevant to the calculation of those damages. The Court remarked that the 5% late charge was probably usurious as the same 5% was charged whether the installment was one day late or 30 days late. "[I]f it is one day late, the annualized interest rate on that delinquent installment would be 1825 percent." In analyzing the enforceability of the default rate of interest of 15%, the same damages that were applicable to late charges apply; there were other costs as well including obtaining appraisal fees, and hiring attorneys, etc. The appellate Division rejected the trial court's imposition of a lesser default rate, finding that once it was determined that the liquidated damage provision constituted a penalty, the default rate was unenforceable and the appropriate recourse was to prove the lender's actual damages. Since the proof failed to support the conclusion that the 3% interest bore a relationship to the administrative expenses incurred by the lender, the default rate of interest was held to be punitive. The Future To date no court has followed the path taken by New Jersey's Appellate Division. This unsettling precedent may be derailed. The New Jersey Supreme Court granted certiorari and will review the Appellate Division's decision. Hopefully, the Supreme Court will overturn the decision and follow industry standards, at least in the commercial context, allowing parties the freedom to contract as they wish.
Updated 6 May 1999
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