Derico v. Duncan

• Decision Date: 12 February 1982
• Citation: 410 So.2d 27
• Parties: Mattie R. DERICO v. Thomas R. DUNCAN. CER 22.
• Court: Alabama Supreme Court

Page 27

410 So.2d 27

29 A.L.R.4th 877

Mattie R. DERICO v. Thomas R. DUNCAN.

CER 22.

Supreme Court of Alabama.

Feb. 12, 1982.

David S. Yen for Legal Services Corp. of Alabama, Montgomery, for petitioner.

Terry P. Wilson of Turner, Wilson, Christian & Dorrough, Montgomery, for respondent.

JONES, Justice.

The following question was certified to this Court so that we might "... answer a question of law which is deemed determinative of an action before (the U. S. District Court and to which (there is no clear controlling precedent in the decisions of the Supreme Court of Alabama."

"Does defendant's failure, which was not willful, to obtain a license according to Section 5-19-22 affect plaintiff's obligation under the loan contract between plaintiff and defendant, and if so, to what extent?"

The order entered by the U. S. District Court contained the following statement of the underlying facts in this case:

"Defendant Thomas R. Duncan conducted a business in Montgomery, Alabama, known as Federal Building Service. In the summer of 1978, defendant, or his representative, contacted plaintiff Mattie Derico to solicit the business of making repairs to her home and placing siding thereon for the cash price of $6,381.00. In addition to the work which defendant would perform on plaintiff's house, defendant Duncan agreed to satisfy an outstanding bond for title contract on plaintiff's home held by Mrs. Flora Davis in order to obtain a first mortgage on plaintiff's home. The amount of this outstanding bond for title contract was $7,619.00. It carried an interest rate of 8 per cent annually.

"Defendant Duncan and Mrs. Derico signed a document entitled 'Agreement,' which recited that the total cash price of the transaction, including the cost of satisfying the obligation to Mrs. Davis on the bond for title, was $14,000.00. The entire amount was to be financed at a 12.78 per cent annual rate of interest. Under her agreement with defendant, plaintiff executed a mortgage on her home in favor of defendant for the total amount of her indebtedness which, including interest, would be an amount of $27,439.20.

"Evidence presented at trial established that during the period from April, 1978 to August, 1978, Defendant Duncan entered into approximately twenty agreements by which defendant agreed to repair a customer's residence and satisfy an outstanding mortgage or other obligation of the residence's owner, in return for a cash price, plus interest and a new mortgage securing the customer's total indebtedness to defendant."

Our answer to the question posed is based upon our interpretation of Code 1975, § 5-19-1 et seq., "Consumer Finance" (known as the Mini-Code), and of the specifically applicable provisions thereof.

It is uncontroverted that Defendant, in failing to obtain a license "to engage in the business of making consumer loans," was in direct violation of § 5-19-22(a), which states in pertinent part:

"(a) No creditor shall engage in the business of making consumer loans ... without first having obtained a license for each location from the administrator; ..."

The instant controversy arises from the parties' respective contentions as to the effect the Defendant's failure to obtain the required license has on the contract here in issue and its resulting obligations.

Defendant concedes his failure to obtain the required license, but maintains that the exclusive statutory remedy for a violation of § 5-19-22(a) is found in § 5-19-30, which states:

"(a) A creditor who ... willfully engages in the business of making loans in violation of subsection (a) of section 5-19-22 is guilty of a misdemeanor and, upon conviction, will be sentenced to pay a fine not exceeding $500.00 or to imprisonment not exceeding one year, or both." (Emphasis supplied.)

The Plaintiff, however, reasons that § 5-19-22 is a "regulatory statute" and, therefore, that Defendant's violation of that statute renders the loan agreement between the parties null and void.

The District Court, in posing the question for certification to this Court, states that Defendant's failure to obtain the required license was "not willful." ¹ That being so, were we to accept Defendant's reasoning, he would avoid any and all penalty for his unlawful conduct which, during 1978, manifested itself in "approximately twenty agreements" similar to the one here. We hold that established Alabama law mandates our rejection of Defendant's contention.

As early as 1918, this Court specifically and unequivocally held:

"The rule in this state is that, if a statute was not designed to prohibit the making of contracts without previous compliance with statutory provisions, but was intended merely to provide revenue, it is not void if no specific prohibition or penalty is provided or imposed. If the conditions of the statute were made for the benefit of the public, and not for the raising of revenue only, an agreement is void that does not comply with the statutory conditions." Bowdoin v. Alabama Chemical Co., 201 Ala. 582, 583, 79 So. 4 (1918).

In succeeding years this Court has not departed from the standard as announced in Bowdoin, and contracts made in violation of regulatory statutes enacted for the protection of the public have been rendered null and unenforceable. See Southern Metal Treating Co. v. Goodner, 271 Ala. 510, 125 So.2d 268 (1960) (engineer statute); Faulkner v. Stapleton Insurance & Realty Corp., 266 Ala. 437, 96 So.2d 761 (1957) (real estate broker statute); Bankers & Shippers Insurance Co. v. Blackwell, 255 Ala. 360, 51 So.2d 498 (1951) (federal motor carrier statute); Knight v. Watson, 221 Ala. 69, 127 So. 841 (1930) (real estate broker statute). ²

In turning to the statute now before us, we observe that the tenor of the Mini-Code, when the chapter is perceived as a whole, is one of consumer (public) protection. § 5-19-2 creates a Consumer Protection Council. § 5-19-6 requires that a highly visible warning be printed on instruments to be signed by debtors which cautions the borrower to "thoroughly read the contract" before signing it. § 5-19-11 requires that before bringing an action for collection a creditor must file an affidavit stating that there "has not been a violation of the provisions of this chapter." A "buyer's right to cancel" a home solicitation sale is provided for in § 5-19-12. Under the terms of § 5-19-16, if a court finds that the terms of an agreement made under this chapter are unconscionable, the court "may refuse to enforce the agreement, or it may enforce the remainder of the agreement without the unconscionable provision, or it may so limit the application of any unconscionable provision as to avoid any unconscionable result." § 5-19-19 sets out the liabilities of a creditor who makes excess finance charges. The power and authority to enforce the provisions of the Mini-Code are given to an administrator by § 5-19-21. § 5-19-22 requires that any creditor in the business of making consumer loans or taking assignments of consumer credit first obtain a license. § 5-19-23 states the grounds for the revocation or suspension of the...