*1 811 THE v. STATE. BRIDGES 59947. Presiding Judge.
Quillian, forgery. appeals Held: his conviction for The defendant “ step hearing required felony preliminary is not in a ‘[A] a prosecution oversight is no and... once an indictment obtained there any prosecute of the because failure or review decision to hearing [I]n hold a commitment ... no event will overturn a appeal conviction on direct or collateral attack because a ” appellant.’ hearing State, v. 242 commitment denied Natson (3) (4) (250 420); 618, 622 State, SE2d v. Ga. 260 Ga. White 147 (248 540).
2. After of the it is evident rational trier of a review record that a reasonably proof fact from could have found the evidence of the beyond guilt Virginia, defendant’s doubt. reasonable Jackson 560). S.U. SC 61 LE2d Judgment Carley, JJ., affirmed. Shulman and concur.
Argued May 13 1980 June 10 1980. Decided Douglas appellant. Willix, J. for Bridges, pro
Marvin se. Attorney, Joseph Margaret Slaton, Drolet, Lewis R. J. District V. Attorneys, appellee. Lines, Assistant District 59179. FINANCEAMERICA CORPORATION v. DRAKE. Judge. Carley, presents again propriety
This case for review the of our decision Corp. Peppers, in Consolidated Credit 922) (1977). (ILA)
The sole issue that Industrial Loan Act case was phrase (hereinafter, of the “face the contract” FAC) used Code Ann. 25-315 is used in both setting subsections § 25-315, forth the permissible charges governed by “Every on loans the ILA. licensee may charge, (cid:127)hereunder for, ... contract collect and receive interest provided: Charge, fees... for, and and collect as hereinafter contract receive cent, per eight per interest rate exceed not to annum repayable single contract, of the face payment of the whether in one repayable monthly periodic or other or installments. On repayable may less, loan contracts 18 months the interest be repayable greater advance, discounted over a on contracts principal shall be added to the the interest period, for, thereto, charge, In making loan. addition ... Fee made, in an amount a fee receive, at the time the loan is or collect cent, of the face amount of the per first eight $600 greater cent, court this ...” contract, excess plus per four *2 in inherent two “tensions” as to reconcile what was termed sought in is used as that of FAC definitions apparently conflicting (a). In Robbins Ann. 25-315 interest under Code calculating § 892) (1957), it had 90, Fin. Corp., Welfare App. 95 Ga. (a) in the meaning of 25-315 the held that FAC within § been amount of the the total 18 months was of a loan for context interest. In loan, which included computational base 825) (1967), (2) a case A. C. Fin. App. 115 Ga. G. months, this court in more than 18 repayable a note involving meaning Robbins employed FAC as again to overrule declined then However, used of the loan. payback amount the total under on the loan for interest computational base loan, (a) figure the amount” Code Ann. 25-315 § this this court traced equaling FAC exclusive of interest. (a) Ann. of Code 25-315 inconsistency provision to the apparent § repayable contracts of interest on loan permits discounting the which amount of months, which is to lend the in the effect of less than 18 in 18 Since the note repayable in interest so discounted. note in and the the interest was discounted months and discounted, not interest thus than 18 months and the greater was for in those two cases were holding in that this court held (a) Ann. 25-315 meaning if of Code reconcilable FAC within § “the of the loan but rather payback amount meant not the total in obtain the borrow order to necessary for a borrower to 404. Based Peppers, App. supra at desired.” Peppers then held in Ann. 25-315 this definition of FAC Code (b) meant loan fee calculation involving in 25-315 that FAC as used from the decisions apparent “As is the same “amount borrowed.” McDonald, in Robbins subsection § 25-315] [of borrowed, and the amount that is charged interest to be on allows legislature, see no reason to believe only on that amount. We com- supply a different intended to using language, the same (b).” Ga. putational in subsection base loan fee step, held that a Then, the last supra going at 403. FAC calculated from than 18 months repayable greater for a loan (which include would of the loan” as “total defined as “amount FAC defined interest), calculated from rather (which interest), be excessive under would exclude borrowed” would ILA. of Code with and construction agree ratify While we (b), forth herein we believe reasons set is no was incorrect that reason “[t]here in the fee any is different of FAC believe (b).” provisions Ann.] § [Code We, therefore, it and to follow it insofar supra at overrule decline effect to the definition gave prospective it retroactive rather than as “the amount borrowed” exclusive of FAC Code Ann. as repayable greater than 18 months. of interest loans discussed, Robbins. “The words As FAC was first defined refer to the amount of the only ‘face amount of the contract’ can obligation promissory as shown note . . . not merely to the payment which the obtained cash [borrower] [amount] prior obligations. only the amount the debtor Use, desires for his but for necessary own the amount it is for him to borrow order to obtain what needs for use. he his own The words ‘face amount of the contract’ are clear and unambiguous.” (Emphasis supplied.) 95 Ga. App. at 95. The loan under Code was thus on FAC calculated defined as *3 payback the total loan. Robbins survived amount of the attempts Co., Haire Allied Fin. overruling (109 secure its 99 Ga. 291) (1959), Co., and Robinson v. Colonial Discount SE2d 824) (1962). App. 274 The decision was, however, apparently the first case to address the definition of FAC in Code Ann. 25-315 of loan, context a non-discounted § one repayable greater And, as notes, 18 months. the court again declined to overrule re-adopted definition of FAC as “total employed amount” but as the computational base for of calculation interest under Code 25-315 of loan, i.e., amount” the undiscounted FAC or, exclusive of interest as it was termed in the “amount However, failed to note that borrowed.” the loan fee clearly (b) was calculated under Code Ann. using as the definition of FAC the “total of the loan” as had been the case Robbins. This is apparent from following calculations, using McDonald’s figures: $984.00 “FAC” -135.72 Interest 848.28 “Principal the loan” -627.48 Cash received borrower
220.80 (c) under Code Ann. Insurance fees -157.44 under 63.36 $ using under Code calculated
Thus the loan fee was payback” FAC in its meaning of “total basis: = $48.00 8% $600 = 15.36 + 4% = Payback
Total Loan Fee $63.36 $984 (Peppers) not FAC as borrowed” “amount (McDonald): “principal amount of the loan” = $48.00 8% $600.00 = 248.28 9.93 + 4% = $57.93 Loan” Amount “Principal $848.28 A the loan fee analysis similar demonstrates 692) (1971), Consolidated Credit its “total using likewise calculated FAC within case are: payback” meaning. figures “FAC” $936.00 Interest -129.10 loan” “Principal amount of the 806.90 received borrower -614.41 Cash 192.49 fees
-131.04 Insurance *4 61.4(4) Loan fee. $ Gentry Thus the loan fee in was calculated under Code (b) meaning: its by employing the definition FAC within = 8% $48.00 $600 = 13.44
4%+ = Loan fee Payback $61.44 Total $936 and within under Code its amount of the loan” for interest: = 8% $600.00 $48.00 = 4% 206.90 8.28 + = of the Loan” “Principal Amount $56.28 $806.90 Gentry both McDonald Thus even though use “principal ” — figure which excludes interest rather than FAC determining basis for the calculation (a), interest under Code Ann. 25-315 it is clear that both decisions retain FAC its meaning payback as the “total amount of the loan” a figure which includes interest in determining the amount of the loan Thus, fee under Code Ann. while is correct holding that a definition of FAC as “amount borrowed” would reconcile of and McDonald insofar as the holdings calculation concerned, of interest that decision is in error in holding there to be no reason to believe FAC should be likewise defined for purposes of calculating (b) loan fees under subsection of Code Ann. § 25-315. Were the definition of FAC subsection applied McDonald the loan contracts therein would have been usurious for the loan fee in those cases reason stated in —the was calculated on computational base which included interest even though the loans were non-discountable. case, the instant calculated, fee was inas Gentry, on the basis of the definition of FAC in Code “total amount of the loan.” This
calculation was upon based FinanceAmerica’s reliance its “rate book” which in turn was upon “specific based representations made by officials from Comptroller’s office of the State of Georgia... that the values stated this Rate Book computer and the program, produced which the same charges book, rate were derived computations which complied with the proper by method deemed Comptroller (Industrial Commissioner) General of Georgia for the calculation of loan fees and interest under the Georgia [ILA].” The affidavit of thé Deputy Assistant Industrial Loan Commissioner establishes that FinanceAmerica’s rate book and its loan contract with Drake “are in accordance with the manner in which this Office enforced and interpreted [ILA], before the decision case, and is in accordance with the administrative this Office then recognized in its enforcement supervisory activities as the manner in which contracts of 36 [ILA] months in duration computed.” must be This interpretation was in interpretation. turn based reliance of FAC as meaning the total amount of note contained *5 decisions, Gentry. these McDonald and “In reliance on [the compute to proper it for a licensee deemed
Commissioner] interest, advance, fee and cash including amount on an fee based interest. and without cash advance and not on [Administra- concept, based on this and activities were enforcement [adminis- tive] concept.” based on this to licensees were instructions trative] Am- in that Finance this case demonstrates Thus the evidence Ann. in accordance fee under Code 25-315 charged erica a loan § in interpretation of that statute which with the adminstrative method, if of that upon, explicit judicial approval turn was based “The sanctioning thereof. administra- apparent at least by Georgia Industrial given tive of the act [the in consideration the determin- is entitled to Commissioner] in allowed charges of the manner which fees and ation this court Fin. Robbins v. Welfare calculated. law should be [Cit.]” 90, 95, supra. Peppers FAC means holding overrule the We decline to (a) and of Code in both subsection the “amount borrowed” was the prior in cases to The issue addressed 25-315. Peppers (a) of that statute and of FAC under subsection meaning FAC in the meaning of “perfectly fit as the basic definition does (a).” Peppers, 25-315 provisions interest at Ga. Code § specifically address first case to was the provision loan fee of FAC under the question that FAC means We adhere to the We overrule “amount borrowed” under that subsection. however, prospective rather gave insofar as it and as As we have shown application to that definition. mean judiciary to concedes, always employed been FAC has though loan,” and the “total amount of the calculating interest employed base (a) “principal obliquely termed the under Code Ann. was have of interest. And as we of the loan” or FAC exclusive adequately demonstrated in the instant case but as was not shown following while subsequent and cases the court cited the definition of FAC total was Gentry, decisions in apparent approval with loans, and determined under interest then non-discounted volving “principal FAC but on the basis not on Code (b) in those cases loan,” under subsection the loan fee amount of the as defined Robbins. Thus on FAC fact calculated was FAC depending two definitions sanctioned Gentry apparently subsection under being calculated interest whether (b) of that statute. subsection fees under or loan FAC, ILA subsequent Based the Robbins definition Gentry, including McDonald and upholding decisions decisions, interpretations of those using instant case made loan” — interest under Code Ann. FAC exclusive interest *6 of the loan and FAC total under Code Ann. Thus in all calculating loan fees complied case with definition regards the loan the instant of gained judicial approval FAC in as had tacit and subsection words, explicit interpretation. administrative other based Gentry, interpreta McDonald and and the administrative decisions, opinion tions of those we of are that Finance America had meaning “reason to believe that the of FAC different [was] (b).” provisions loan at 25-315
at 403.
its
Finance America based
loan contract with Drake on these
decisions and on the
of
both those
decisions and the statute itself. The loan here
not
would
have been
usurious
under McDonald or
or
in
the administrative
terpretation
thereof. Prior
to
there was
foreshadowing
no
complied
a
approved
which
with the result
Robbins, McDonald, Gentry
interpretations
and administrative
therefore,
thereof
be
are,
that,
would
usurious.
opinion
We
while
holding
overruled,
should not be
that holding
should be
prospectively only.
effect
given
Prior to a determination that
as
FAC used Code Ann. 25-315
has the same
in the context of a non-discounted ILA loan
as
in subsection
“the
of
existence
the statute
itas was
relied
operative
‘... an
fact
may
consequences
have
which
justly
ignored.
cannot
be
past
cannot
by
be erased
a
new
declaration. The effect of the subsequent
ruling
invalidity
as to
may
have
be
to
considered
various
. . .
aspects,
Questions
rights
of
vested,
to
status,
claimed
have become
prior
of
of
determinations
to
deemed
finality
have
and acted upon accordingly,
public policy
of
light
in the
nature
both the statute
previous
its
application,
(A)n
demand examination ...
all-inclusive statement of
principle
of absolute retroactive
invalidity cannot be justified.’
Supreme Court of the United States has on
[Cit.]...
[T]he
occasion
to give
refused
a ruling retroactive
if doing
effect
so would
unjustifiably disrupt existing relationships... That court
chosen
has
to make prospective
rulings
those
which
produce
would
such
hardships if applied retroactively.
Reflected in these decisions
[Cit.]
is a careful
balancing
by
constitutional
interests and reliance
”
people on the old
practical.
rules
law which is both wise and
[Cit.]
Allan,
Allan
445) (1976).
Based
Allan and Chevron
of the factors enunciated
upon consideration
296)
(1971),
Huson,
349, 30
are
U. S.
LE2d
we
Oil Co.
SC
is one which should
compelled
to conclude that the
decision
only.
dealing
“In
cases
with
prospective application
be limited to
our
nonretroactivity
question,
generally
have
considered three
First,
nonretroactively
applied
separate factors.
decision
be
law,
past
either
clear
principle
overruling
a new
must establish
may
relied,
or
an
[Cit.],
deciding
have
litigants
on which
precedent
clearly
not
fore
impression whose resolution was
issue of first
Second,
shadowed,
. . .
it has been stressed that
‘we must
[Cit.].
by looking
the merits
in each
to the
weigh
prior
and demerits
case
effect,
history
question,
purpose
of the rule in
its
and whether
operation will
retrospective
operation.’
further or retard its
[Cit.]
Finally,
weighed
inequity imposed
we have
‘
produce
of this Court could
sub
application,
a decision
[W]here
applied retroactively,
ample
if
there is
ba
inequitable
stantial
results
avoiding
hardship” by
sis
our
“injustice
cases
97, supra
Huson, 404 U. S.
nonretroactivity.’
Oil Co. v.
[Cit.]’’Chevron
Co.,
Peppers, only
the case in Chevron Oil
at 106-107.
was also
*7
impression in
the definition
question
addressed
of first
this court
—(b)
effectively
the
also
overruled
of FAC Code
but
—
payback amount
of
’definition of FAC total
approval
tacit
—
calculating
computational base for
loan
proper
of the loan
in McDonald and
Gentry and
fees
loans
in non-discounted
contained
in authorizing
also the
reliance on those decisions
administrative
into this
loan
When FinanceAmerica
entered
fees thus calculated.
prior
relying
it
if not on
contract with Drake
of such a
interpretation
prior judicial
least on the
sanction
of
explicit
approval
on the
computational base and
foresee
such
“It cannot be assumed that
did
could
calculations.
[it]
[judicial
sanctioning
this
and administrative
that
consistent
the
proper
base for
calculation
rely
do
to
loan
would be overturned. The most
could was
fees]
[it]
as it then
these
should
law
was. [Under
circumstances]
‘[w]e
Peppers
always
that
law
had
indulge
the fiction
announced
and, therefore,
been the
that
who did not avail themselves
law
those
Co.,
it
their rights.’
waived
Chevron Oil
404 U.
S.
[Cit.]”
And,
at 107.
considering the prior judicial
history
and administrative
of the definition of FAC in
(b),
the context of Code Ann. 25-315
—
do not
give Peppers
to
that
retroactive effect
so as make
believe
to
by
entered into
a lender who has
contract
“null and void”
loan
purpose
history
would further
upon
past
good faith relied
of the business
“provide regulation
ILA
to
operation
and
To
$3,000.”
hold usurious a
25-302.
making loans of
contract which would have been
prior
non-usurious under
decisions
promote stability
of this court does not
in the regulation of such
And, considering
business.
both the judicial and administrative
context,
history of the definition of FAC the loan fee
the good faith
by
reliance
thereon
lenders
such
fees
as
Robbins,
Gentry
demonstrated
adherence to
purpose
ILA,
opinion
we are of the
giving
Peppers
effect to
as
contracts
retroactive
so
to make loan
entered into
produce
before that decision was
“null
rendered
and void” would
inequitable
most “substantial
results” on vested contractual
rights.
Co.,
Chevron Oil
404 U. S.
supra at 108. See also
v. J.
Rollinger
Co.,
(S.
Penney
C.
1972);
820 decided. the date into before entered Banke, Smith, J., J., P. Been, Quillian, C. Judgment reversed. Shulman, J., specially. concurs JJ., concur. Sognier, Birdsong and only. in J., judgment the P. concurs McMurray, April Argued January 24, 1980 8, Decided Rehearing denied June Jr., Porter, Jr., appellant. Bavis, John C.
Joseph G. ford, Gray E. don Shu appellee.
Ralph Goldberg, S. amicus curiae. specially. concurring Judge,
Shulman, Corp. Credit Consolidated in the decision From the time of 922), appearance of until the case, I with opinion in the instant have been concerned majority the Peppers on the small loan industry is possibility that the effect of However, analysis presented to this inequitable. argument no is outside potentially harsh result has convinced me that court Act licensees as a by Industrial Loan scope of the risk assumed interest and by the Act to exact right granted to the concomitant any other loans usurious would render charge fees which necessity limiting I remain unconvinced Though context. opinion of the tacit majority demonstration A. Fin. approval of the court McDonald v. G. C. 825), computation forbidden of the method of persuades me to acquiesce in the limitation the date of
application to loan contracts executed after that decision. SERVICES,
59046. FINANCIAL INC. GAINESVILLE McDOUGAL et al. Judge.
Birdsong, Georgia Industrial Loan Act. The trial court sustained by judgment debtors’ motion to set aside a default obtained Inc., Services, appellant, Gainesville Financial judg- here was entered into 1972 and the loan contract be sought ment rendered 1973. Execution of the fi.fa. was not interposed response thereto the debtors enforced until when judgment grounds a motion to set aside the of Section 20 of the operation instrument was null and void Act, alleged Georgia Code 25-9903. The debtors Industrial