Commerce Park Realty, LLC v. HR2-A Corp. as General Partner of HR2-A Limited Partnership ( 2021 )

June 30, 2021
Supreme Court
No. 2019-468-Appeal.
(PB 11-1922)
Commerce Park Realty, LLC, et al. :
v. :
HR2-A Corp. as General Partner :
of HR2-A Limited Partnership et al.
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone 222-3258 or Email
opinionanalyst@courts.ri.gov, of any typographical or
other formal errors in order that corrections may be made
before the opinion is published.
Supreme Court
No. 2019-468-Appeal.
(PB 11-1922)
(Concurrence and Dissent
begins on page 30)
Commerce Park Realty, LLC, et al. :
v. :
HR2-A Corp. as General Partner :
of HR2-A Limited Partnership et al.
Present: Suttell, C.J., Goldberg, Robinson, and Long, JJ.
OPINION
Justice Long, for the Court. The case before us involves complex and
protracted litigation regarding multiple high-interest loans between commercial
borrowers and lenders. The loans were for the development of the so-called “Centre
of New England” project, which comprises retail, restaurant, hotel, multifamily
residential, light industrial, and mixed-use developments in Rhode Island (the Centre
of New England project). The defendants, HR2-A Corp. as General Partner for
HR2-A Limited Partnership (HR2-A); HR4-A Corp. as General Partner of HR4-A
Limited Partnership (HR4-A); MR4A-JV Corp. as General Partner of MR4A-JV
Limited Partnership; and Realty Financial Partners (collectively the RFP
defendants), appeal from the grant of partial summary judgment in favor of the
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plaintiffs, Commerce Park Realty, LLC; Commerce Park Properties, LLC (CPP);
Commerce Park Commons, LLC; Commerce Park Associates 4, LLC; and the
permanent receiver appointed for the four just-referenced limited liability companies
(collectively the receivership plaintiffs); as well as Commerce Park Associates 11,
LLC; Dartmouth Commons, LLC (Dartmouth); Warwick Village, LLC; Universal
Properties Group, Inc.; Nicholas E. Cambio individually (N. Cambio) and as Trustee
of the Nicholas E. Cambio, Roney A. Malafronte, and Vincent A. Cambio Trust; and
Vincent A. Cambio (V. Cambio) (collectively the Cambio plaintiffs). That grant of
partial summary judgment primarily determined that a series of loans made by the
RFP defendants was usurious and null and void.1 For the reasons set forth herein,
we affirm the judgment of the Superior Court.
Facts and Procedural History
This case emanates from a series of commercial loans issued by HR2-A and
HR4-A, Massachusetts corporations with principal places of business located in
Massachusetts, to the receivership plaintiffs and the Cambio plaintiffs beginning in
1997.2 As security for the loans, the borrowers mortgaged hundreds of acres of
1
Decided of even date is our opinion in Commerce Park Realty, LLC v. HR2-A
Corp., No. 2020-33-A., 2021 WL ___, __ A.3d __ (R.I., June 30, 2021), a cross-
appeal filed by the Cambio plaintiffs which sought review of secondary
determinations made by the Superior Court at the same time that the court declared
the loans usurious.
2
The borrowers in this case entered into receivership after the execution of the loans
giving rise to this appeal; a permanent receiver was appointed in 2013. We
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property located in West Greenwich, East Greenwich, and Coventry, Rhode Island,
and owned by the receivership plaintiffs. The debt that the receivership plaintiffs
and the Cambio plaintiffs owed to HR2-A pursuant to the promissory notes exceeded
$14 million, and the debt that receivership plaintiffs owed to HR4-A exceeded $7
million (the pre-2000 loans or pre-2000 debt). By July 2000, the receivership
plaintiffs and the Cambio plaintiffs owed HR2-A and HR4-A over $21 million on
the loans.
In July 2000, the General Assembly amended the Rhode Island usury statute,
thereby creating an exception to the maximum allowable interest rate for commercial
entities.3 See P.L. 2000, ch. 211, § 1 (effective July 13, 2000). Notwithstanding G.L.
1956 § 6-26-2(a), which dictates that no interest rate on a loan shall exceed the
greater of 21 percent per annum, the resulting § 6-26-2(e) provides that
“there is no limitation on the rate of interest that may be
legally charged for the loan to, or use of money by, a
commercial entity, where the amount of money loaned
exceeds the sum of one million dollars ($1,000,000) and
where repayment of the loan is not secured by a mortgage
against the principal residence of any borrower; provided,
that the commercial entity has first obtained a pro forma
methods analysis performed by a certified public
accountant licensed in the state of Rhode Island indicating
that the loan is capable of being repaid.”
nonetheless refer to them as “receivership plaintiffs” throughout the opinion for ease
of reference.
3
The RFP defendants lobbied the General Assembly to enact this exception to the
law against usury for commercial entities.
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After this legislation was enacted, HR2-A and HR4-A demanded payment on the
then-matured pre-2000 debt.
The receivership plaintiffs and the Cambio plaintiffs were unable to make
payment. Consequently, HR2-A and HR4-A agreed to refinance the pre-2000 loans
at interest rates that exceeded the previously charged rates. Interest began to accrue
at these new interest rates on August 1, 2000, prior to the execution of the loan
refinancing documents. With respect to the loan that exceeded $14 million (the $14
million loan), HR2-A charged a compounded monthly interest rate of 2.67 percent,
resulting in an effective annual interest rate of 34 percent. With respect to the loan
that exceeded $7 million (the $7 million loan), HR4-A charged a compounded
monthly rate of 2 percent, resulting in an effective annual interest rate of 26 percent.
In September 2000, prior to closing on the refinanced loans, HR2-A and
HR4-A required the receivership plaintiffs and the Cambio plaintiffs to obtain pro
forma methods analyses in accordance with § 6-26-2(e). A month later, after the
receivership plaintiffs and the Cambio plaintiffs were either unwilling or unable to
produce the pro forma analyses, and after charging interest rates on the loans in
excess of 21 percent since August 1, 2000, HR2-A and HR4-A subsequently
modified their demand to instead permit the receivership plaintiffs and the Cambio
plaintiffs to certify in writing that they had obtained the pro forma methods analyses
in accordance with § 6-26-2(e).
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The closing took place on December 11, 2000, at which time the parties4
executed the refinancing documents related to the $14 million loan and the $7
million loan.5 The receivership plaintiffs and the Cambio plaintiffs executed the
documents before a notary public in West Warwick, Rhode Island and the loan
documents were backdated to August 1, 2000.6 The receivership plaintiffs and the
Cambio plaintiffs also executed written certifications for each loan at the closing.
Those “borrower certifications,” which were drafted by the RFP defendants and
were not notarized, contained the following relevant language:
“(2) The undersigned have obtained a pro forma methods
analysis from a certified public accountant for each of the
Borrowers as required by R.I. Gen. Laws § 6-26-2.
“(3) The aforesaid pro forma methods analyses indicate
that the Borrowers are capable of repaying the Loan.
“(4) For the purposes of this certification, the Borrowers
represent that the term ‘pro forma methods analysis’
means an analysis of historical sales data, lease valuations
based on existing leases and a review of appraisals of
existing leases performed for other financial institutions,
which analysis indicates that the value to loan ratio
4
The Cambio plaintiffs were coborrowers with the receivership plaintiffs on only
the $14 million loan. The Cambio plaintiffs were guarantors of the $7 million loan.
5
The $14 million loan was secured by property in East Greenwich, West Greenwich,
and Coventry, Rhode Island, as well as in Dartmouth, Massachusetts. The $7 million
loan was secured by property in East Greenwich, West Greenwich, and Coventry,
Rhode Island. Both loans were executed in West Warwick and contained choice-of-
law provisions designating Rhode Island as the source of applicable law.
6
More than $2 million in interest had accrued on the loans between August 1 and
December 10, 2000.
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expressed as a percentage exceeds one hundred percent
(100%).
“(5) The Lender and its counsel may rely on the foregoing
representations of the undersigned.”7
As with the $14 million and $7 million loans, the borrower certifications were
backdated to August 1, 2000.8
On December 13, 2000, Dartmouth, N. Cambio, V. Cambio, and Roney A.
Malafronte (Malafronte) granted a promissory note in the amount of $4.3 million to
HR4-A (the $4 million loan or the $4 million note). Dartmouth is a Rhode Island
limited liability company, and N. Cambio, V. Cambio, and Malafronte are
individuals domiciled in Rhode Island. The note was secured by the partially
constructed Centre of New England project, as well as property located in
Massachusetts. The compounded monthly interest rate for the loan was 1.75 percent,
which resulted in an effective annual interest rate greater than 23 percent. Notably,
the $4 million note contained a choice-of-law provision that stated, “This note for
all purposes shall be enforced and construed in accordance with the substantive law
7
It is notable that the maturity date for the $14 million loan and the $7 million loan
was set for the month following the execution of the loans, on January 31, 2001.
8
The borrower certification for the $14 million loan was executed by and between
HR2-A and the receivership plaintiffs. The borrower certification for the $7 million
loan was executed by and between HR4-A and the receivership plaintiffs.
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of the Commonwealth of Massachusetts, without resort to the state’s conflict of laws
rules.” Each borrower signed the note in West Warwick, Rhode Island.9
Both the $14 million loan and the $7 million loan matured on January 31,
2001. The receivership plaintiffs and the Cambio plaintiffs were unable to satisfy
their obligations under the two loans by that date, and the parties subsequently
amended and restated the promissory notes for both loans on September 20, 2001
(the restated loans).10 The terms of the loans changed such that payment pursuant to
the restated loans became due on demand by HR2-A and HR4-A. The annual
interest rate on the restated loans exceeded 23 percent and the notes contained the
following language:
“NOTWITHSTANDING THE INCLUSION IN THIS
NOTE OF THE ABOVE EVENTS OF DEFAULT, THIS
NOTE IS AND SHALL REMAIN FOR ALL PURPOSES
A DEMAND NOTE AND AT ALL TIMES IS
PAYABLE ON DEMAND OF HOLDER
IRRESPECTIVE OF WHETHER ANY EVENT OF
DEFAULT EXISTS.”
Notably, no pro forma method analyses were conducted in connection with
the restated loans, nor did the receivership plaintiffs or the Cambio plaintiffs execute
9
The $4 million loan matured on December 13, 2002.
10
Interest accrued on the $14 million loan and the $7 million loan during the several
months between their maturity and the execution of the restated loans at rates in
excess of 21 percent per annum.
As with the $14 million loan and the $7 million loan, the effective date of the
restated loans was backdated to August 1, 2000.
-7-
any borrower certifications. The restated loans were signed by the receivership
plaintiffs and the Cambio plaintiffs before a notary public in West Warwick, Rhode
Island.
On March 28, 2003, CPP, a Rhode Island limited liability company, granted
a demand promissory note to HR4-A in the principal amount of $350,000, secured
by property located in Coventry (the $350,000 loan). The compounded monthly
interest rate for the $350,000 loan was 1.75 percent, which resulted in an effective
annual interest rate of over 23 percent. The note for the $350,000 loan contained a
choice-of-law provision that stated, “This Note shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.” Further, the
top corner of the note bears the notation “Boston, Massachusetts.”11
Thereafter, in April 2003, HR2-A and HR4-A demanded payment in full on
the restated loans; however, the receivership plaintiffs and the Cambio plaintiffs
were unable to make payment. On April 24, 2003, HR2-A, HR4-A, the receivership
plaintiffs, and the Cambio plaintiffs then executed a “forbearance and conveyance
agreement” (the forbearance agreement). The forbearance agreement, which was
executed so that the receivership plaintiffs could avoid foreclosure, provided that
11
The note also provides that CPP “solicited the loan subject to this Note from the
Lender in the Commonwealth of Massachusetts, all Related Documents were
executed in the Commonwealth of Massachusetts, and any and all payments under
the Note shall be made to Lender only at the Massachusetts address set forth herein.”
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HR2-A and HR4-A would forgo collecting on the restated loans and the $350,000
loan, provided that “[t]o the extent any such defenses, setoffs, counterclaims ever
existed, they are hereby waived and the Lenders are released, remised and forever
discharged from any and all claims * * * in consideration for the Lenders’
agreements contained” in the forbearance agreement.12 The forbearance agreement
also contained a governing law provision that designated Rhode Island as the chosen
forum relating to that agreement, stating that the agreement had been negotiated,
accepted, and made in Rhode Island.
In 2005, the $4 million note was amended and restated and secured by
property located in East Greenwich, West Greenwich, and Coventry, Rhode Island.
Like the original $4 million note, each borrower executed the amended and restated
note in West Warwick, Rhode Island.
Six years later, on April 11, 2011, HR2-A and HR4-A dispatched demand
letters to the receivership plaintiffs and the Cambio plaintiffs exercising their right
to demand payment-in-full on all of the outstanding loans. The payoff amount,
including accrued interest, totaled over $143 million. Three days prior to the
demand, however, the receivership plaintiffs and the Cambio plaintiffs commenced
the present civil action by filing a verified complaint against the RFP defendants in
12
The forbearance agreement also required the receivership plaintiffs and the
Cambio plaintiffs to convey approximately 187 acres of real property to HR2-A and
HR4-A’s designee within three business days’ notice.
-9-
the Superior Court.13 The receivership plaintiffs and the Cambio plaintiffs filed a
motion for leave to file an amended complaint on February 10, 2014, and the trial
justice granted the motion in part on September 8, 2014.14 The complaint sought,
among other things, judgment against the RFP defendants for violation of the usury
law, § 6-26-2.15
In October 2014, the receivership plaintiffs moved for partial summary
judgment on Counts I and IV of their amended complaint, which alleged that the $14
million loan and the $7 million loan were usurious. In the months that followed, the
13
On April 20, 2011, this case was removed to the United States District Court for
the District of Rhode Island. On September 18, 2013, the case was remanded to the
Superior Court.
14
This constituted the fifth amended complaint.
15
The amended complaint alleged fifty-three counts. Specifically, the receivership
plaintiffs’ claims included usury (Counts I and IV); civil liability pursuant to G.L.
1956 § 9-1-2 and G.L. 1956 § 6-26-2 (Counts II and V); violations of the Racketeer
Influenced and Corrupt Organizations Act (RICO), chapter 15 of title 7 of the
general laws (Counts III, VI, XXIV, and VIII); equitable subordination (Count X);
and breach of the implied covenant of good faith and fair dealing (Count XII). The
crux of the Cambio plaintiffs’ claims included declaratory judgment that the loans
in question were usurious (Counts XIII, XIX, and XXV); reimbursement of payment
damages and punitive damages (Counts XIV, XV, XX, XXI, XXX, and XXXI); and
violations of RICO (Counts XVI, XVII, XIII, XXII, XXIII, XXIV, XXVI, XXVII,
XXVIII, XXXII, XXXIII, and XXXIV). They also sought a declaratory judgment
that releases and waivers executed by the borrowers and guarantors were invalid
(Count XXXVI); damages pursuant to § 9-1-2 (Counts XXXVII, XXXVIII,
XXXIX, and XL); and injunctive relief (Counts XLVI, XLVII, and XLVIII).
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Cambio plaintiffs and the RFP defendants also moved for summary judgment on a
number of issues.16
In their motion for partial summary judgment, the receivership plaintiffs
alleged two usury violations in relation to the $14 million loan and the $7 million
loan. The Cambio plaintiffs contended in their motion for summary judgment that
the waiver of claims against the RFP defendants that was included in the forbearance
agreement was against public policy and was, therefore, ineffective. They also
asserted that the $4 million loan and the $350,000 loan were governed by Rhode
Island law, notwithstanding the choice-of-law provisions that contained language to
the contrary.
The RFP defendants argued in their motion for summary judgment that the
$14 million loan and the $7 million loan, along with the restated loans, were not
usurious; that any claim of usury related to those loans was waived pursuant to the
forbearance agreement; and that the $4 million loan and the $350,000 loan were
governed by Massachusetts law.
16
In conjunction with these motions, the RFP defendants filed a motion for a ruling
on the usury claim entitlement issue, seeking a declaration that if certain loans were
deemed usurious, the Cambio plaintiffs were not entitled to disgorgement payments
under § 6-26-4(c)—the section of the usury statute penalizing usurious contracts.
The trial justice granted this motion in part. The Cambio plaintiffs filed a notice of
appeal, and this Court’s opinion in that companion case has been issued on even
date. See supra footnote 1.
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Following lengthy motion practice, the trial justice considered and ruled upon
the motions for summary judgment in a forty-one-page written decision in June 2019
that granted the receivership plaintiffs’ motion for partial summary judgment with
respect to Counts I and IV of their amended complaint, and denied the RFP
defendants’ motion for summary judgment regarding the same.17
On July 3, 2019, the receivership plaintiffs filed a motion for summary
judgment on Count VII of the amended complaint, which alleged that the $350,000
loan was usurious, and Count IX of the amended complaint, which sought a
declaratory judgment that the $14 million loan, the $7 million loan, the $4 million
loan, and the $350,000 loan were usurious and void, and that the release and waiver
provision contained within the forbearance agreement was null and void. On
September 19, 2019, the trial justice issued a ruling from the bench in which she
granted summary judgment for the receivership plaintiffs on Counts VII and IX; an
17
In that decision the trial justice (1) granted the receivership plaintiffs’ motion for
partial summary judgment on Counts I and Count IV; (2) denied RFP defendants’
motion for summary judgment on Counts I and IV; (3) granted the Cambio plaintiffs’
motion for summary judgment on counts XIII, XIX, XXXV, XXXVI and denied the
motion on counts XV and XX; and (4) granted RFP defendants’ entitlement motion
for summary judgment on counts XIV, XV, XX, XXI, XXXVII, XXXVIII, XXXIX,
XL, and LIII, and denied their motion on counts XVI, XVII, XXII, XXIII, XXIV,
XXVI, XXVII, XXVIII, XXX, XXXI, XXXII, XXXIII, XXXIV, XLIII, XLIV, and
XLV.
The decision was amended by order of the court, filed on August 22, 2019, to
correct errors contained within the decision that was rendered in June 2019.
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order entered that day reflecting her ruling, from which the RFP defendants have
appealed.
On appeal, the RFP defendants specify five claims of error. They assert that
the trial justice erred (1) in finding that the $14 million loan and the $7 million loan
were usurious; (2) in finding that the RFP defendants charged usurious interest rates
on the $14 million loan and the $7 million loan prior to the execution of those loans,
between August 1, 2000, and December 11, 2000; (3) in finding that the waiver of
usury claims brought by the receivership plaintiffs and the Cambio plaintiffs was
ineffective; (4) in finding that the $4 million loan and the $350,000 loan were
governed by Massachusetts law; and (5) by failing to rule that the $14 million loan
and the $7 million loan remained due and payable to the RFP defendants because
they were originally made prior to the accrual of any usurious interest rates. We
shall address these issues in turn.18
Standard of Review
“It is well established that this Court reviews a grant of summary judgment de
novo.” Moore v. Rhode Island Board of Governors for Higher Education, 18 A.3d
541, 544 (R.I. 2011). “We view the evidence in the light most favorable to the
nonmoving party, and ‘if we conclude that there are no genuine issues of material
18
Because the first two issues raised by the RFP defendants are closely related, we
address them together in our analysis.
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fact and that the moving party is entitled to judgment as a matter of law,’ we will
affirm the judgment.” Id. (brackets omitted) (quoting Berman v. Sitrin, 991 A.2d
1038, 1043 (R.I. 2010)). Further, a party opposing a motion for summary judgment
has “an affirmative duty to set forth specific facts showing that there is a genuine
issue of material fact.” Sauro v. Lombardi, 178 A.3d 297, 303 (R.I. 2018) (quoting
The Providence Journal Co. v. Convention Center Authority, 774 A.2d 40, 46 (R.I.
2001)).
Discussion
Usury
In their motion for partial summary judgment, the receivership plaintiffs
asserted that HR2-A and HR4-A committed usury because (1) they failed to obtain
the required pro forma methods analyses and (2) regardless of the validity of the
borrower certifications that were executed on December 11, 2000, HR2-A and
HR4-A charged usurious interest rates from August 1 through December 10, 2000.
The trial justice agreed with the receivership plaintiffs, determining that HR2-A and
HR4-A had charged the receivership plaintiffs and the Cambio plaintiffs usurious
interest rates prior to the execution of the borrower certifications and that the
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borrower certifications did not entitle HR2-A and HR4-A to charge interest rates in
excess of 21 percent.19
On appeal, the RFP defendants contend that the trial justice’s findings were
in error because the exemption established in § 6-26-2(e) permitted HR2-A and
HR4-A to charge interest rates in excess of 21 percent; they further argue that the
interest rates established prior to the execution of the borrower certifications were
not usurious because, despite the fact that the rates were “made” effective August 1,
2000, the rates were not “charged” until December 11, 2000.
The principal issue presented is whether a lender may be free of the maximum
interest provision of § 6-26-2 if a borrower certifies in writing that the usury
exception articulated in § 6-26-2(e) has been met, but where no other evidence
demonstrates that the borrower obtained a pro forma methods analysis performed by
a certified public accountant who is licensed to do business in Rhode Island.
Rhode Island usury law, found at chapter 26 of title 6 of the general laws,
dictates the maximum allowable interest rate that lenders are permitted to charge:
“Subject to the provisions of title 19, no person,
partnership, association, or corporation loaning money to
or negotiating the loan of money for another, except duly
licensed pawnbrokers, shall, directly or indirectly, reserve,
19
The receivership plaintiffs also contended before the Superior Court that HR2-A
and HR4-A charged usurious interest rates with respect to the restated loans. Having
found that the original $14 million loan and the $7 million loan were usurious,
however, the trial justice did not address the receivership plaintiffs’ argument in this
respect.
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charge, or take interest on a loan, whether before or after
maturity, at a rate that shall exceed the greater of twenty-
one percent (21%) per annum or the alternate rate
specified in subsection (b) of this section of the unpaid
principal balance of the net proceeds of the loan not
compounded, nor taken in advance, nor added on to the
amount of the loan.” Section 6-26-2(a)
Accordingly, we have recognized that “interest rates in excess of 21 percent per
annum are deemed usurious.” NV One, LLC v. Potomac Realty Capital, LLC, 84
A.3d 800, 805 (R.I. 2014) (citing § 6-26-2(a)). Contracts that violate § 6-26-2(a)
“are usurious and void, and the borrower is entitled to recover any amount paid on
the loan.” Id. (citing § 6-26-4). “The lender’s subjective intent to comply with the
usury laws is immaterial.” Id.
In NV One, LLC, this Court determined that a borrower cannot contract with
a lender to pay an interest rate in excess of the maximum rate established by
§ 6-26-2. NV One, LLC, 84 A.3d at 801. In so doing, we examined the policy
supporting § 6-26-2. Id. at 807-10. In holding that “lack of intent ‘is no excuse for
violation of the statute[,]’” id. at 808 (quoting Burdon v. Unrath, 47 R.I. 227, 231,
132 A. 728, 730 (1926)), we opined that “[i]t is clear that the Legislature intended
an inflexible, hardline approach to usury that is tantamount to strict liability.” Id. at
807. This is so because “there is a strong public policy against usurious transactions,
with lenders—typically in a better position to understand the terms of the loan—
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bearing the burden of compliance.” Id. at 810. Thus, the onus is on lenders to ensure
compliance with usury law.20 See id.
In the present case, it is undisputed that the RFP defendants charged interest
rates in excess of 21 percent per annum upon the closing of the $14 million loan and
the $7 million loan on December 11, 2000. As such, the analysis begins with
determining whether the RFP defendants have met the usury exception enumerated
in § 6-26-2(e). The answer to this question is determinative of whether, pursuant to
the usury law, the RFP defendants are “either bound by the maximum interest
provision and all its constituent penalties, or [are] completely free from them.” NV
One, LLC, 84 A.3d at 809. Because the money in this case (1) was loaned to
commercial entities, (2) exceeded $1 million, and (3) was not secured against the
principal residences of any of the borrowers, the remaining question is whether the
borrower certifications satisfy the requirements of § 6-26-2(e).
Turning to § 6-26-2(e), it is clear that the RFP defendants could only
permissibly charge interest rates in excess of 21 percent per annum if the
receivership plaintiffs “ha[d] first obtained * * * pro forma methods analys[e]s
performed by a certified public accountant licensed in the state of Rhode Island
20
We emphasize that strict compliance with the usury law benefits both borrowers
and lenders. Such compliance protects borrowers from entering into reckless
financial agreements and protects lenders by ensuring, based on empirical evidence,
that borrowers are able to pay high-interest loans.
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indicating that the loan[s] [are] capable of being repaid.” Section 6-26-2(e). The
statute leaves little room for interpretation—unless the borrowers first obtain the
required pro forma methods analyses, the exception is not applicable.
In this case, the borrower certifications indicate that the required pro forma
methods analyses were performed, but the record is devoid of any competent
evidence that the analyses were actually performed. The RFP defendants suggest
that pro forma methods analyses were performed in accordance with the usury
statute because of the borrowers’ written certifications to that effect. However, the
RFP defendants can point only to the unnotarized certifications. The RFP
defendants are not only unable to produce the requisite analyses, but they are also
unable to identify the certified public accountant licensed to do business in Rhode
Island who allegedly performed those analyses. The RFP defendants have therefore
failed to demonstrate that the required analyses were “obtained” by the borrowers,
pursuant to the clear language of the statute.21
Although the receivership plaintiffs indicated in the borrower certifications
that they had, in fact, obtained the required analyses, such statements by borrowers
are insufficient to meet the terms of the unambiguous exception to the usury law
21
Without any evidence that the analyses were actually performed and “obtained[,]”
as required by § 6-26-2(e), it would have been unreasonable for the RFP defendants
to believe that such large sums of money, loaned at high interest rates, could be
repaid in such a short period of time.
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contained in § 6-26-2(e). When faced with the “binary dynamic” between the usury
law and the exception to the law contained in § 6-26-2(e), one party must bear the
risk of noncompliance with the statute. See NV One, LLC, 84 A.3d at 809. Our
caselaw places that burden on the lender.22 Id. Accordingly, the exception contained
in § 6-26-2(e) does not apply here because the RFP defendants have failed to show
that the receivership plaintiffs first obtained the required pro forma methods analyses
prior to charging interest rates in excess of 21 percent per annum.
The RFP defendants quote Reichwein v. Kirshenbaum, 98 R.I. 340, 201 A.2d
918 (1964), for the proposition that “a debtor by his voluntary act cannot render
usurious that which but for such act would be free from usury.” Reichwein, 98 R.I.
at 343, 201 A.2d at 920. In that light, the RFP defendants assert that, pursuant to the
Court’s holding in Reichwein, the receivership plaintiffs have no viable usury claim
because it was the receivership plaintiffs who certified, by way of the borrower
certifications, that the exception articulated in § 6-26-2(e) was met. However,
Reichwein is inapposite because in that case, unlike in the case at bar, the loans at
issue were not facially usurious. Id. at 345, 201 A.2d at 921.
Similarly unavailing is the RFP defendants’ argument that the established
interest rates prior to the execution of the borrower certifications were not usurious
22
The RFP defendants conceded during oral argument that it is the lender who bears
the burden of ensuring compliance with the law against usury.
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because, despite the fact that the rates were “made” effective August 1, 2000, the
rates were not “charged” until December 11, 2000. The record reveals that interest
at rates in excess of 21 percent per annum in fact accrued on the $14 million loan
and the $7 million loan between August 1 and December 10, 2000, for which the
receivership plaintiffs were responsible. It is our opinion that the accrual of interest
at rates in excess of 21 percent per annum is deemed usurious under the usury law.
See § 6-26-2(a) (stating in part that “no person * * * shall, directly or indirectly,
reserve, charge, or take interest on a loan, whether before or after maturity, at a rate
that shall exceed the greater of twenty-one percent (21%) per annum”) (emphasis
added).23
The Release and Waiver Provision
The RFP defendants, relying on DeFusco v. Giorgio, 440 A.2d 727 (R.I.
1982), contend on appeal that the release and waiver provision in the forbearance
agreement is valid because the forbearance agreement was executed, they assert,
“freely and knowingly, after reasonable reflection, with the opportunity to obtain the
assistance of legal counsel and for the purpose of avoiding litigation.”
23
We note that the fact that the $14 million loan and the $7 million loan were
backdated to August 1, 2000, is fatal to the RFP defendants’ assertion that the loans
were not usurious, because the retroactive charges contravene the usury statute’s
requirement that the pro forma methods analyses must first have been obtained
before the lenders would have been permitted to charge interest rates in excess of 21
percent per annum.
- 20 -
The RFP defendants ask this Court to decide whether a borrower of a mature,
immediately payable loan with an interest rate exceeding 21 percent per annum may
waive the right to bring a usury claim against the lender in consideration of the
lender’s agreement to forbear from collecting on the loans. Notwithstanding the
Legislature’s strong public policy against usurious loans, a debtor is not precluded
from waiving the “defense of usury under all circumstances.” DeFusco, 440 A.2d at
732. In DeFusco, the Court recognized that “waiver of a usury defense should be
permitted when it is freely and knowingly made after reasoned reflection for the
legitimate purpose of avoiding or settling litigation.” Id. We will not recognize a
waiver of usury, however, if the release is “merely a subterfuge to evade the usury
statutes.” Id. Because of the often coercive nature of such releases, the Court is
particularly skeptical with regard to “a situation in which a borrower has executed a
release of all claims or defenses of usury either contemporaneous with the signing
of a promissory note or in exchange for additional advances of funds.” Id.The case at bar exemplifies the coercive nature of such waivers of usury
claims. In April 2003 the RFP defendants gave the receivership plaintiffs the option
either: (1) to pay off the restated loans, which were due on demand and had accrued
substantial interest, or (2) to enter into a forbearance agreement. Unable to pay the
restated loans on demand, and faced with this Hobson’s choice, the receivership
plaintiffs agreed to enter into the forbearance agreement in an effort to avoid the
- 21 -
penalty of foreclosure.24 The record reveals that the nature of the execution of the
forbearance agreement was highly coercive “in light of the pressing financial needs
of the borrower[s].” DeFusco, 440 A.2d at 732.
Notably, there is no evidence that the receivership plaintiffs and the Cambio
plaintiffs entered into the forbearance agreement for the “purpose of avoiding or
settling litigation.” DeFusco, 440 A.2d at 732. The facts of the instant case are also
markedly distinguishable from those in DeFusco, where the defendants waived any
claims that they had against the plaintiff, including usury claims, by entering into a
consent judgment. Id. at 729. As the DeFusco Court explained, by entering into a
consent judgment, the defendants there had, “in effect, already had their day in court
to present these defenses[;] * * * they waived all defenses relating to the subject
matter underlying the judgment.” Id. The forbearance agreement in this case,
however, was executed in 2003, several years before litigation commenced in 2011.
This attenuation highlights a key difference between the present case and DeFusco.
See id. at 729, 732.
Therefore, it is our opinion that the release and waiver of claims provision
contained in the forbearance agreement does not fall “within [the] narrow category
24
A “Hobson’s choice” is defined as “[a]n apparently free choice that offers no real
alternative.” The American Heritage Dictionary of the English Language 835 (4th
ed. 2006). The reference is to Thomas Hobson (1544-1630), “English keeper of a
livery stable, from his requirement that customers take either the horse nearest the
stable door or none.” Id.- 22 -
of cases” in which this Court will permit a debtor’s release of a usury claim.
DeFusco, 440 A.2d at 732.
The Choice-of-Law Provisions
In the course of ruling on the various motions for summary judgment, the trial
justice ruled that Rhode Island law governed the $4 million and the $350,000 loan
agreements, despite the choice-of-law provisions designating Massachusetts law.
On appeal, the RFP defendants contend that the trial justice’s ruling conflicts with
this Court’s holding in Sheer Asset Management Partners v. Lauro Thin Films, Inc.,
731 A.2d 708 (R.I. 1999).
The question that this Court must resolve is whether, under the circumstances
of this case, the State of Rhode Island has a materially greater interest than the
Commonwealth of Massachusetts in determining whether HR4-A has exceeded the
statutory maximum interest provisions of the usury statute. Rhode Island has long
acknowledged that parties may choose the law that will govern their contractual
disputes. See Sheer Asset Management Partners, 731 A.2d at 710; Owens v.
Hagenbeck-Wallace Shows Co., 58 R.I. 162, 174, 192 A. 158, 164 (1937). However,
such provisions are not without restrictions. In Owens, this Court stated that “no
stipulations of the parties as to the law they intend to have govern their contract will
be given effect to, if it is considered to be contrary to the public policy of the law of
the forum.” Owens, 58 R.I. at 174, 192 A. at 164.
- 23 -
This principle is reflected in the Restatement (Second) Conflict of Laws §
187(2)(a) (1971), which has been adopted by Rhode Island and echoes the well-
settled choice-of-law principle that this Court enunciated in Owens. See Sheer Asset
Management Partners, 731 A.2d at 710. Section 187 provides,
“(1) The law of the state chosen by the parties to govern
their contractual rights and duties will be applied if the
particular issue is one which the parties could have
resolved by an explicit provision in their agreement
directed to that issue.
“(2) The law of the state chosen by the parties to govern
their contractual rights and duties will be applied, even if
the particular issue is one which the parties could not have
resolved by an explicit provision in their agreement
directed to that issue, unless either
“(a) the chosen state has no substantial relationship
to the parties or the transaction and there is no other
reasonable basis for the parties’ choice, or
“(b) application of the law of the chosen state would
be contrary to a fundamental policy of a state which has a
materially greater interest than the chosen state in the
determination of the particular issue and which, under the
rule of § 188, would be the state of the applicable law in
the absence of an effective choice of law by the parties.
“(3) In the absence of a contrary indication of intention,
the reference is to the local law of the state of the chosen
law.” Restatement (Second) Conflict of Laws § 187.
In accordance with § 188 of the Restatement (Second) Conflict of Laws, in the
absence of an effective choice-of-law provision, the state law that governs a
transaction is the state that “has the most significant relationship to the transaction.”
- 24 -
Section 188(2) identifies several contacts that are to be considered in this analysis.
Those contacts are:
“(a) the place of contracting,
“(b) the place of negotiation of the contract,
“(c) the place of performance,
“(d) the location of the subject matter of the contract, and
“(e) the domicil, residence, nationality, place of
incorporation and place of business of the parties.”
Restatement (Second) Conflict of Laws § 188.
Turning to § 187(2)(a), it is clear that the “chosen state[,]” Massachusetts, has a
substantial relationship to the $4 million loan and the $350,000 loan. The $4 million
loan was secured, in part, by a mortgage interest in property in Massachusetts before
it was amended and restated in 2005, and the lender of both loans, HR4-A, is a
Massachusetts company with a principal place of business located in Massachusetts.
See Sheer Asset Management Partners, 731 A.2d at 710 (holding that a lender’s state
of incorporation in a designated forum state is sufficient to create a “substantial
relationship” pursuant to Restatement (Second) Conflict of Laws § 187(2)(a)).
Although the Court in Sheer Asset Management Partners reached only § 187(2)(a),
we are of the opinion that § 187, in its entirety, is sound. Thus, our analysis turns to
§ 187(2)(b) and we consider whether Rhode Island has a “materially greater interest”
than Massachusetts in the determination of the legality of the loans at issue.
The $4 million loan and the $350,000 loan have significant ties to Rhode
Island, giving this state a materially greater interest in the determination of the issue
- 25 -
of the legality of the loans than does Massachusetts. The loans were primarily
secured by Rhode Island real estate, and the agreements relating to the loans were
all executed in Rhode Island. Further, the commercial borrowers for both notes are
Rhode Island entities, and the individual borrowers on the $4 million loan are
domiciled in Rhode Island. Under § 188(2) of the Restatement (Second) Conflict of
Laws, the laws of Rhode Island would govern the $4 million loan and the $350,000
loan in the absence of effective choice-of-law provisions to the contrary. The $4
million note was executed in Rhode Island; both loans were secured by property
mostly located in Rhode Island; the subject matter of the contract—to wit, the Centre
of New England project—was located in Rhode Island; and each of the several
borrowers on the notes were domiciled in Rhode Island.
Given that Rhode Island has a materially greater interest in the legality of the
loans at issue in this case than does Massachusetts, and that Rhode Island law would
apply in the absence of an effective choice-of-law provision to the contrary, the
question is whether, in accordance with § 187(2)(b) of the Restatement, application
of Massachusetts law would be contrary to a fundamental policy of Rhode Island.
As discussed supra, Rhode Island imposes a statutory maximum interest rate
on loans. Massachusetts, on the other hand, effectively does not.25 See Kaur v.
25
“The Massachusetts law against usury creates an annual interest rate cap of 20%,
beyond which one is ‘guilty of criminal usury.’” Kaur v. World Business Lenders,
LLC, 440 F. Supp.3d 111, 118 (D. Mass. 2020) (quoting Mass. Gen. Laws ch. 271,
- 26 -
World Business Lenders, LLC, 440 F. Supp.3d 111, 122 (D. Mass. 2020) (describing
Massachusetts’ usury laws as “toothless”). Because the case at bar involves
purportedly usurious loans—which loans Rhode Island has a strong policy against—
a determination that the loans in question are not usurious because of the application
of Massachusetts law, as opposed to Rhode Island law, would be contrary to a
fundamental public policy of Rhode Island. See NV One, LLC, 84 A.3d at 810
(noting that Rhode Island has “a strict policy against usurious transactions”).
This is distinguishable from Sheer Asset Management Partners, cited supra,
a case involving purportedly usurious loan transactions involving the states of New
York, Connecticut, and Rhode Island. Sheer Asset Management Partners, 731 A.2d
at 709. In that case, New York had the most significant relationship to the
transactions and, therefore, the law of that jurisdiction would have applied in the
absence of a choice-of-law provision. Id. The parties’ choice to apply the law of
Connecticut was effective, however, because both New York and Connecticut did
not recognize usury as a defense in a loan transaction. Id. at 709-10. Here, by
contrast, there is a stark difference between the usury laws of Massachusetts and
Rhode Island, with Rhode Island providing much greater protection to borrowers
§ 49(a)). However, the interest rate cap does not apply “to any person who notifies
the attorney general of his intent to engage in [an otherwise usurious] transaction or
transactions * * * providing any such person maintains records of any such
transaction.” Mass. Gen. Laws Ann. ch. 271, § 49(d).
- 27 -
(and to lenders) than Massachusetts. Therefore, it is our opinion that Rhode Island
law governs the $4 million loan and the $350,000 loan.
The Remaining Indebtedness of Plaintiffs
The RFP defendants aver that, in ruling that the $14 million loan and the $7
million loan were usurious, the trial justice erred by failing to find that the pre-2000
debt remains due and payable because those loans were made prior to the accrual of
any usurious interest rates. In support of their contention, the RFP defendants cite
to the proposition that contracts that are not usurious at the time of execution cannot
be “tainted with usury by any subsequent usurious transaction with respect thereto.”
Comment Note, 102 A.L.R. 573 § 2 (1936).
It is well settled that “[c]ontracts in violation of § 6-26-2 are usurious and
void, and the borrower is entitled to recover any amount paid on the loan.” NV One,
LLC, 84 A.3d at 805 (citing § 6-26-4). Further, it is an elementary principle that a
substitute contract that has been executed in satisfaction of an obligor’s existing duty
under a previously executed contract has the effect of extinguishing the previous
contract giving rise to said duty and discharging any rights with respect thereto. See
St. Germain v. Lapp, 72 R.I. 42, 49, 48 A.2d 181, 185 (1946); see also 6 Corbin,
Contracts, § 1293 at 189 (2d ed. 1962); Restatement (Second) Contracts, § 279(2)
(1981).
- 28 -
It is apparent from the record that, after the receivership plaintiffs and the
Cambio plaintiffs were unable to make payment on the pre-2000 debt, the RFP
defendants agreed to refinance the debt under new loans. There is no indication that
the refinanced loans were simply amendments to the loans that formed the basis of
the pre-2000 debt. The refinanced loans carried higher interest rates than the
previous loans, established different terms of repayment, and do not reflect that any
prior obligations of the borrowers were preserved. It is clear from the record that
the refinanced loans extinguished the pre-2000 loans. See St. Germain, 72 R.I. at 49,
48 A.2d at 185 (“[T]he existing loan of the original lender was paid, its chattel
mortgage securing it discharged, a wholly new loan was obtained from a new lender,
and a new note and mortgage containing different terms were executed and delivered
to take the place of the original note and mortgage.”); Restatement (Second)
Contracts, § 279(2) (“[A] substituted contract discharges the original duty and
breach of the substituted contract by the obligor does not give the obligee a right to
enforce the original duty.”); 13 Corbin, Contracts, § 71.1(2) at 401 (a substituted
contract is a type of accord and satisfaction because “the agreement instantly
operates as a satisfaction and discharges the previously existing claim or claims”).
Therefore, the RFP defendants’ reliance on 102 A.L.R. 573 is misplaced, and the
pre-2000 debt does not remain due and payable.
- 29 -
Conclusion
For the reasons set forth in this opinion, we affirm the judgment appealed from
and remand the papers in this case to the Superior Court.
Justice Lynch Prata did not participate.
Justice Robinson, concurring in part and dissenting in part. I am pleased
to concur in the entirety of the Court’s well-analyzed and well-articulated opinion in
this case with the sole exception of its ruling as to the choice of law issue. Where I
part company with the majority is in its conclusion that “[b]ecause the case at bar
involves purportedly usurious loans—which loans Rhode Island has a strong policy
against—a determination that the loans in question are not usurious because of the
application of Massachusetts law, as opposed to Rhode Island law, would be
contrary to a fundamental public policy of Rhode Island.”
Quite simply, it is my opinion that Rhode Island’s public policy with respect
to usurious loans does not rise to the level of being fundamental. I think it should
be self-evident that, if such a public policy were truly fundamental, the General
Assembly would not have voted to provide an exception to this state’s usury law
with virtually no public controversy. To my mind, the fact that G.L. 1956 § 6-26-
2(e) was enacted by our democratically elected General Assembly is conclusive
- 30 -
evidence of how decidedly not fundamental the public policy with respect to usury
is in Rhode Island.
As such, in accordance with Restatement (Second) Conflict of Laws § 187
(1971), the $4 million loan and the $350,000 loan should be governed by
Massachusetts law (not by Rhode Island law), in accordance with the choice of law
provisions explicitly provided in the pertinent loan documentation.
Accordingly, I record my respectful dissent. I believe that the agreed-upon
choice of law provision should control.
- 31 -
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Commerce Park Realty, LLC, et al. v. HR2-A Corp.
Title of Case as General Partner of HR2-A Limited Partnership et
al.
No. 2019-468-Appeal.
Case Number
(PB 11-1922)
Date Opinion Filed June 30, 2021
Justices Suttell, C.J., Goldberg, Robinson, and Long, JJ.
Written By Associate Justice Melissa A. Long
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Sarah Taft-Carter
For Plaintiffs:
Brian LaPlante, Esq.
R. Thomas Dunn, Esq.
Richard G. Riendeau, Esq.
Michael J. Jacobs, Esq.
Thomas M. Dickinson, Esq.
Attorney(s) on Appeal
John O. Mancini, Esq.
Nicole M. Matteo, Esq.
Matthew J. McGowan, Esq.
For Defendants:
Robert D. Wieck, Esq.
William J. Delaney, Esq.
SU-CMS-02A (revised June 2020)