Longiotti v. Wachovia Bank & Trust Co. N.A.

MARTIN, Judge. Plaintiffs contend that Wachovia had no legal right to the added payment of $27,000.00 in return for relinquishing its rights and the deed of trust. Their contention is based upon two arguments. First, it is argued that a “thorough examination of the documents executed by Aetna, Wachovia and Appellants reveals no provision for liquidated damages, or any other payment to Wachovia if the permanent loan did not close with Aetna.” Secondly, they argue that the money was paid to Wachovia under conditions which amounted to economic duress. The present case is comprised of a complex financial arrangement involving real estate developers, a construction lender, and a permanent or long-term lender. An examination of the nature of their arrangement is imperative at this point. What immediately follows has been culled from the affidavits and depositions submitted to the trial court for consideration. In order for lenders to gain a degree of certainty before a construction project begins, it is the practice to establish the rights and duties of the parties at the outset by means of various documents as found in the present case. One such document is the buy-sell agreement. The buy-sell agreement is executed by all three parties for the purpose of preventing the borrower from abrogating existing loan agreements in favor of a more attractive loan. Thus, the long-term loan and the construction loan are represented by the same documents, and upon completion of construction, the construction lender merely assigns and transfers the documents to the long-term lender. While the con [537] struction lender’s role is only temporary, he often, as here, expects to receive future income by “servicing” the long-term loan after being paid off or “taken out” by the long-term lender. Servicing the long-term loan can involve collecting monthly loan payments and interest, taking care that the property taxes are paid, and inspecting the property from time to time in order to advise the long-term lender of the condition of his security. In the present case Wachovia rightfully expected to receive future income, for it had an agreement with Aetna to service Aetna’s long-term loan. According to defendant’s affidavits, the income from servicing a loan was important to Wachovia and represented a major inducement for locating and securing a long-term lender. The documents, such as the buy-sell agreement, were intended to assure the lenders of their respective rights to the benefits of the transaction as originally contemplated. When plaintiffs wanted out of the arrangement, Wachovia was holding a deed of trust on the property. We find nothing wrong in Wachovia’s requirement that it receive a 1% premium in addition to satisfaction of the construction loan in return for releasing its interest in the transaction. There is no contention that the premium was excessive in light of Wachovia’s lost expectations. In addition, we disagree with plaintiffs’ claim that the payment was exacted under conditions amounting to economic duress. Clearly, plaintiffs’ position was not an enviable one for they stood to lose a $70,000.00 standby fee to Western unless Wachovia gave up its interest in the transaction. On the other hand, it cannot be said that Wachovia was in any way responsible for plaintiffs’ predicament. (Indeed, part of the cost overrun on the project appears due to the addition of a “Day Care Center” which involved between $150,000.00 and $175,000.00.) The duress must be found, if at all, in Wachovia’s decision to stand on its valuable contractual and property rights. It was not required by law to release these rights and its demand for a 1 % premium to do so was neither wrongful nor excessive. Plaintiffs also refer to the 1% premium as usurious. We see nothing in the way of usury here. The transaction of which plaintiffs complain was the very reverse of a loan for, as stated in Smithwick v. Whitley, 152 N.C. 366, 67 S.E. 914 (1910), “[i]t put an end to credit instead of giving it.” [538] The order of the trial court allowing defendant’s motion for summary judgment is affirmed. Affirmed. Judges Parker and Vaughn concur.