Attaching Creditor’s Right to Assert Debtors Defense of Usury in Action by Usurious Party
The buyer of a house trailer gave a chattel mortgage as part of the purchase price and received title. The sheriff attached the trailer pursuant to an order of attachment obtained by two creditors of the buyer. The holder of the chattel mortgage, who was the original seller, brought an action to replevin the trailer. The defense of usury was raised. Held for plaintiff. An attaching creditor does not stand in privity with the debtor and therefore cannot raise the debtor’s defense of usury. The general rule is that the plea of usury as a defense is personal to the borrower and those in legal privity with him. But privity here seems to have an unusual connotation.
Donald E. Leonard,
Attaching Creditor’s Right to Assert Debtors Defense of Usury in Action by Usurious Party,
38 Neb. L. Rev. 827
Available at: https://digitalcommons.unl.edu/nlr/vol38/iss3/15