Montgomery Federal Savings and Loan Ass'n v. Baer

• Decision Date: 10 August 1973
• Docket Number: No. 6796.,6796.
• Citation: 308 A.2d 768
• Parties: MONTGOMERY FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant, v. Eric BAER and Meyer Morse, Appellees.
• Court: D.C. Court of Appeals

Page 768

308 A.2d 768

MONTGOMERY FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant, v. Eric BAER and Meyer Morse, Appellees.

No. 6796.

District of Columbia Court of Appeals.

Argued April 26, 1973.

Decided August 10, 1973.

William H. Brain, Kensington, Md., for appellant.

Leonard C. Collins, Washington, D.C., for appellees.

David S. Scrivener and Marshall P. Johnson, Washington D.C., were on the brief for the Metropolitan Washington Savings and Loan League, Inc., amicus curiae.

Paul E. McGraw, Daniel J. Goldberg, Harold B. Shore, and Harvey Simon, Washington, D.C., were on the brief for the Federal Home Loan Bank Board, amicus curiae.

Marilyn Fisher and Norman C. Barnett, Washington, D. C., were on the brief for Wilbur B. Anderson, et al., amicus curiae.

Before KERN, GALLAGHER and YEAGLEY, Associate Judges.

YEAGLEY, Associate Judge:

Appellant as the lender of $10,000 secured by a first trust on property in the District of Columbia, brought suit in Superior Court against the makers of the note (appellees) to recover a deficiency of $3,166 remaining after a foreclosure proceeding. This appeal is from the trial court decision which held that "points" ¹ charged by a mortgage lender must be added to the interest charge for the year in which such fee is collected (rather than being prorated over the term of the loan) in order to determine if the rate is excessive; and if the resultant total interest charge for that year exceeds 8 percent the transaction is usurious.² The appellees failed to pursue at trial the other defenses raised in their answer other than the defense of usury and it was stipulated by the parties that the issue would be resolved upon the answers to interrogatories and the cross motions for summary judgment.

The facts found by the trial court and agreed upon by counsel are as follows. On April 28, 1966, a $10,000 conventional, fully-amortized loan was made to appellees by appellant (hereafter Montgomery), a federally chartered savings and loan association doing business in Maryland.³ The loan was evidenced by appellees' promissory note, secured by a first deed of trust on certain real property in the District of Columbia. In signing it the appellees agreed to repay the $10,000 loan with interest at the rate of 6½ percent per annum in equal monthly installments of $75, plus taxes and insurance, until paid.⁴ Four "points" ($400) were deducted from the principal amount loaned as a "loan placement fee", hence the amount of money actually loaned to the appellees when they signed the note was $9,600, less minor sums for such items as appraisal and notary fees.⁵ Appellees resold the property 30 days later and the purchasers assumed the mortgage with appellees taking back a second trust.

After the loan was in effect some 5 years, the appellees and their successors (the purchasers) defaulted thereon and Montgomery foreclosed obtaining a judgment for $9,281. The property was sold after foreclosure for $6,600 ($484.52 in foreclosure costs were incurred), leaving a deficiency of $3,166.

When Montgomery brought suit to recover the deficiency the appellees raised the defense⁶ that the transaction was usurious under District of Columbia law in that the "points" charged were interest, and that these "points" raised the interest rate for the first year of the loan to 10½ percent, in violation of the 8 percent per annum maximum interest rate allowable in the District of Columbia.⁷ While Montgomery conceded that the "loan placement fee" was an interest charge,⁸ it argued that nevertheless its loan was not usurious even with this extra charge since in computing the rate the "points" charged must be prorated over the full term of the loan⁹ making the effective rate of interest for the loan only 6.97 percent per annum.

On cross motions for summary judgment the court ruled in favor of appellees declaring that the loan was usurious and that the interest paid thereon was forfeited.¹⁰ The total of the forfeited interest ($3,600) being greater than the deficiency ($3,166), the court therefore held that the obligation of the appellees "is completely discharged." For reasons that appear hereinafter, we reverse.

Prerequisite to deciding the foregoing issue, we must determine whether the law of the District of Columbia or Maryland governs. In the instant case the parties expressed no intent in the contract with respect to which jurisdiction's laws would control. Neither the loan commitment, the note, nor the contract indicate where payments were to be made. We know only that the lender, Montgomery, is a federally chartered savings and loan association doing business in Maryland, whereas the borrowers are residents of the District of Columbia, which is the situs of the property as well, and that settlement took place in the District of Columbia. The record is devoid of other evidence as to the place of making or the place of performance of the contract. At trial, counsel for both parties agreed that the law of the District of Columbia should apply and neither party has questioned that stipulation on appeal. While such an agreement as to choice of law is not controlling on this court, we find nothing in the record to indicate a contrary result is called for. Under these circumstances we presume that the parties anticipated that the law of the District of Columbia, the forum, would be applied.¹¹

This leaves for this court's determination the issue raised by appellant as to the proper treatment, for purposes of the usury statute,¹² of a fee attributable to interest which is deducted at the inception from the face of a long-term, interest-bearing loan repayable in equal monthly installments.

The interest rate on written contracts is regulated by D.C.Code 1972 Supp., §§ 28-3301 and 3303, which, in pertinent part, read as follows:

§ 28-3301. Rate of Interest expressed in contract.

. . . the parties to an instrument in writing for the payment of money at a future time may contract therein for the payment of interest on the principal amount thereof at a rate not exceeding 8 percent per annum. (Emphasis added.)

§ 28-3303. Usury defined.

If a person or corporation contracts in the District,

. . . . . .

(2) in writing, to pay a greater rate than is permitted under section 28-3301 . . . the creditor shall forfeit the whole of the interest so contracted to be received.

The trial court held that the collection of interest in an amount equal to 10½ percent¹³ of the principal during the first year of a long-term loan violated the above statute and therefore subjected the lender to the penalty of usury of forfeiture of all of the interest paid. Implicit in this holding is the assumption that the statutory phrase "not exceeding 8 percent per annum" limits the amount of interest which may be properly collected in any one year rather than indicating the maximum rate of interest chargeable for the term of the loan.

We believe that the trial court's interpretation misconstrues the statutory language and results in an erroneous application of the usury statute. That law does not read that the rate cannot exceed 8 percent annually or 8 percent for any one year, but it states it shall not exceed 8 percent "per annum". As the Missouri Supreme Court succinctly said in First National Bank v. Kirby, 175 S.W. 926, 929 (Mo., 1915), "[t]he words 'per annum' . . . designate rate of interest, while the word `annually' . . . indicate[s] the time of payment." (Emphasis added.) Thus, the phrase "8 percent per annum" in section 28-3301 relates to the rate of interest and rate alone. It has no bearing on the time of payment, as to which the statute is simply silent. A review of usury cases decided in this jurisdiction, and elsewhere,¹⁴ convinces us that this is the correct interpretation of the statutory language.

The courts of this jurisdiction have not decided the precise question in issue here but have had occasion to consider several usury cases involving the charging of a fee in addition to, or in lieu of, interest specified in the contract.¹⁵ None of the decisions in this jurisdiction have indicated anything inconsistent with the view of the majority of jurisdictions which have held arrangements such as we have here not to be usurious. In no instance have our courts found that the collection in one year, on a multi-year loan, of an amount of interest greater than that which would have resulted from charging the maximum legal rate for that one year alone, in and of itself rendered the loan usurious. The cases have hinged on whether the interest specified in the note plus any interest charges withheld or otherwise collected, equalled an amount greater than that which would have been collected had the maximum lawful rate been charged over the entire period of the loan on the amount actually loaned.¹⁶ This test has been explicitly delineated as the proper method for determining whether a loan contract is usurious in both Atlantic Life Ins. Co. of Richmond v. Wolf, D.C.Mun.App., 54 A.2d 641, 643 (1947) and Holcombe v. O'Sullivan, D.C. Mun.App., 93 A.2d 96, 97 (1952).

While it is the generally accepted rule that "points" are considered as interest, it appears that every court in other jurisdictions which has decided the question we have before us has held that "points" should be prorated or apportioned over the entire term of a loan in determining if the rate of interest is usurious.¹⁷ Three states, Oregon, Tennessee and Virginia have statutes to the same effect.¹⁸ The courts of the remaining states to our knowledge either have not directly faced the proration issue, or they have no usury laws, or have exempted savings and loan associations from their usury statutes.

Before any of the cases cited in note 17 had been decided, the Supreme Court had held in Fowler v. Equitable Trust Co., 141 U.S. 411, 12 S.Ct. 8, 35 L.Ed. 794 (1891) that it is the total amount of interest collectible over the life of the loan that determines whether it is...