When Californians first passed an initiative precluding the charging of “usurious” interest in 1918, they could hardly have imagined the ever-more sophisticated schemes, and endless exceptions, which allow lenders to charge interest exponentially higher than the stated maximum rate of 10 percent. Indeed, the days of the neighborhood loan shark have given way to unashamed lenders who freely advertise on the television or radio, obtaining interest on their loans that exceed 20, 30 or even 100 percent.
In a recent decision, the Court of Appeal of the State of California, for the Second Appellate District, underscored that now, more than ever, transactional and litigation counsel representing real estate clients must have a comprehensive understanding of all of the agreements affecting a property.
In a decision that will have a dramatic effect on contract and lender liability litigation, the California Supreme Court decided in Riverisland Cold Storage
Inc. v. Fresno‐Madera Production Credit Association, Case No. S190581, that the parol evidence rule does not bar the introduction of evidence of fraud, even if the misrepresentations directly contradict the terms of a written contract. In so ruling, the Court directly overturned its decision in Bank of America etc. Assn. v. Pendergrass, which has been the law in California, albeit reluctantly, for over 75 years.
In connection with commercial and residential loans which have gone into default, whether as a result of a payment default, technical default or
maturity, the imposition of default interest can quickly add up. These fees may render the borrower’s ability to cure the default impossible or, on the other hand, generate a handsome profit for the lender or loan servicer.