Public Loan Co. v. Hyde , 91 Misc. 2d 564 ( 1977 )

Richard F. Kuhnen, J.

Defendants have moved to reargue the court’s decision which granted summary judgment to plaintiff (89 Misc 2d 226).

The original affidavits on the motion for summary judgment show that plaintiff did not disclose to defendants, at the time of the second loan, the amount that was required to pay off the first loan. On the orginal motion defendants argued that the payoff amount was too high because of improper rebates for prepaid charges and that therefore the second loan was usurious. The court rejected this defense because defendants did not deny the accuracy of the payoff figure that was alleged by plaintiff nor that they had received the proper amount of cash on the second loan.

Now, for the first time, defendants contend that even if the payoff amount of the first loan was properly calculated, that payoff figure was a "charge” within the meaning of section 1639 (subd [a], par [2]) of title 15 of the United States Code which must be disclosed to the borrowers. Defendants then further argue that the payoff amount of the first loan was not part of the credit of which they had "actual use” or which was "paid to [them] or [their] account.” (See US Code, tit 15, § 1639, subd [a], pars [1], [3].)

Since the facts which would sustain this argument were before the court on the original motion, the motion to reargue on this particular issue is granted.

Each side shall have until June 30, 1977 to submit briefs and one week thereafter for replies. The briefs should be limited to the issue stated. The execution of the judgment is stayed pending determination of this motion.