California Appeals Court Holds Judgment Creditor's Forbearance Fees Not Subject To State Usury Law

Foreclosure Debt Collection

On April 25, the California Court of Appeal, First District, held that California’s usury law does not prohibit a judgment creditor from accepting a forbearance fee to delay collecting on a judgment. Bisno v. Kahn, No. A133537, 2014 WL 1647660 (Cal. Ct. App. Apr. 25, 2014). In consolidated cases, the judgment creditors agreed to delay executing on their judgments in exchange for the payment of forbearance fees in addition to statutory post-judgment interest on the unpaid balance of the judgments. The judgment debtors subsequently claimed the forbearance fees are usurious and sought treble damages against the creditors. The court held that because the state’s usury law does not expressly prohibit a party from entering into an agreement to forbear collecting on a judgment, usury liability does not extend to judgment creditors who receive remuneration beyond the statutory interest rate in exchange for a delay in enforcing a judgment. The court added that a forbearance agreement is a contract between the judgment creditor and the judgment debtor that is separate from the judgment to which it applies, and therefore must be enforced in a separate contract action and is subject to standard contractual defenses such as duress and unconscionability.