Fleet Finance, Inc. v. Jones

430 S.E.2d 352, 263 Ga. 228, 93 Fulton County D. Rep. 2194, 1993 Ga. LEXIS 487
CourtSupreme Court of Georgia
DecidedJune 14, 1993
DocketS93A0185
StatusPublished
Cited by27 cases

This text of 430 S.E.2d 352 (Fleet Finance, Inc. v. Jones) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fleet Finance, Inc. v. Jones, 430 S.E.2d 352, 263 Ga. 228, 93 Fulton County D. Rep. 2194, 1993 Ga. LEXIS 487 (Ga. 1993).

Opinions

Sears-Collins, Justice.

The appellant, Fleet Finance, Inc. of Georgia (hereinafter “Fleet”), holds promissory notes and security deeds from the three appellees, who filed the present action against Fleet. The appellees contended that Fleet was charging usurious interest rates under OCGA § 7-4-18 and that therefore Fleet should be enjoined from proceeding with threatened foreclosures and should be required to forfeit all interests contracted for under the notes. The appellees also moved for a class certification, contending, among other things, that § 7-4-21, which prohibits class certification where a loan is secured by real property, was unconstitutional. Fleet opposed the appellees’ motion for class certification and filed a motion to dismiss the appellees’ áction, on the ground that the notes were not usurious. The trial court enjoined Fleet from proceeding with any foreclosures; granted the appellees’ motion for class certification, ruling that § 7-4-21 was unconstitutional for numerous reasons; and denied Fleet’s motion to dis[229]*229miss. Although we do not condone Fleet’s interest-charging practices, which are widely viewed as exorbitant, unethical, and perhaps even immoral, and suggest that further regulation of the lending industry is needed by our General Assembly to insure the economic survival of individuals like the appellees, we are constrained to hold that the loans in question are legal and not usurious. We thus must reverse the denial of Fleet’s motion to dismiss. For that reason, we need not address the issues regarding class certification.

1. Whether the appellees’ loans are usurious centers around various issues regarding the discount points and loan origination fees that Fleet charged to the appellees at the closing of their loans. These front-end interest fees ranged from 22 percent to 27 percent of the principal amount of the appellees’ loans. The appellees did not pay for these fees in cash at closing. Instead, the fees were deducted from the face amount of the loans in question, thus reducing the net amount of loan proceeds actually paid to the appellees, and the appellees agreed to pay for them in a small, fixed amount over the life of the loan. The fees, however, became nonrefundable and nonrebateable at closing. In addition to these fees, Fleet charged yearly interest rates ranging from 18.9 percent per annum to 19.9 percent per annum.

In their complaint the appellees based their contention that the loans were usurious on OCGA § 7-4-18, which provides that

[a]ny person, company, or corporation who shall reserve, charge, or take for any loan or advance of money .. . any rate of interest greater than 5 percent per month . . . shall be guilty of a misdemeanor.1

Before the trial court, the appellees contended that the use of the phrase “per month” in § 7-4-18 means that interest must be calculated for each individual month of the loan, and that, if the interest received in any one month exceeds five percent, the loan violates the statute. The appellees also contended that interest payments must be attributed to the month in which they are received and that nonrefundable discount points and origination fees must be deemed received in the first month of a loan. Calculating the interest under the appellees’ method, the interest for the first month of the appellee’s loans greatly exceed five percent. For instance, the interest rate for the first month of the loan of appellee Elizabeth Jones would be [230]*23023 percent.

Fleet responded that under § 7-4-18 the “rate of interest. . . per month,” must be calculated based upon the ratio of total interest paid to the total number of months in the loan. Fleet further contended that we adopted this method of calculating interest in Norris v. Sigler Daisy Corp., 260 Ga. 271, 273 (3) (392 SE2d 242) (1990), and that Norris was controlling in this case. Moreover, Fleet responded that, even if § 7-4-18 were interpreted to prohibit interest greater than five percent in any one month of the loan, it should not be construed so as to attribute nonrefundable discount points and origination fees to the first month because they are amortized and paid over the life of the loan. Calculating the interest under Fleet’s method, the monthly interest rates for the appellees’ loans are 1.57 percent, 1.67 percent, and 1.60 percent,2 well below 5 percent per month permitted by § 7-4-18.

With respect to Fleet’s argument regarding Norris, the appellees conceded that in Norris we adopted the method of calculating interest urged by Fleet, but they contended that Norris was not controlling because the appropriate method of treating discount points and origination fees was not at issue in Norris and because Sigler Daisy Corp. would have lost the appeal even applying the interest calculation method most favorable to it.

The trial court ruled that under § 7-4-18 interest had to be calculated for each individual month of the loan; that if the interest in any one month exceeded five percent, the entire loan was usurious; that the discount points and origination fees had to be attributed to the first month of the appellees’ loans; and that doing so caused the first month’s interest for the loans to exceed five percent.

2. For numerous reasons, Fleet contends the trial court’s ruling [231]*231was in error. We first address Fleet’s contention that the method of calculation used in Norris is binding in this case. We disagree with Fleet’s assertion, because the competing interpretations of § 7-4-18 advanced in this case were not advanced in Norris and because the method we adopted was most favorable to Sigler Daisy Corp. and still resulted in the company losing the appeal. Moreover, although earlier decisions of this court have calculated the rate of interest “per annum” by totalling the cost of credit over the life of the loan in determining if a loan that included up-front interest charges exceeded the specified rate “per annum,” those decisions also did not address the competing interpretations of the usury statute urged in this case. Green v. Equitable Mtg. Co., 107 Ga. 536, 539-540 (33 SE 869) (1899); Clarke v. Havard, 111 Ga. 242, 249 (36 SE 837) (1900); Harvard v. Davis, 145 Ga. 580, 586 (4) (89 SE 740) (1916).

3. We thus turn to Fleet’s contention that § 7-4-18 must be interpreted generally to require the consideration of the total interest paid over the entire period of a loan in determining if a loan is usurious. As previously noted, the appellees contend that the statute should be interpreted to mean that a person who charges more than five percent in any given month of a loan is guilty of a misdemeanor.

With respect to this issue, we first note that § 7-4-18 is a criminal statute. It thus must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted. Carsello v. State, 220 Ga. 90, 94 (137 SE2d 305) (1964); Bankston v. State, 258 Ga. 188, 190 (367 SE2d 36) (1988). This rule applies even though a criminal statute is being construed in a civil context. F.C.C. v. American Broadcasting Co.,

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Bluebook (online)
430 S.E.2d 352, 263 Ga. 228, 93 Fulton County D. Rep. 2194, 1993 Ga. LEXIS 487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleet-finance-inc-v-jones-ga-1993.