Kelly Adjustment Co. v. Boyd

GALLAGHER, As- Before KERN Nos. PAIR, Associate Judges, sociate Appeals. Court of Judge, Retired. Argued Sept. 11, 1974. July 31, 1975. Decided GALLAGHER, Judge: Associate Sept. Rehearing Denied is a against appellee debt- H.

ors to our Burleson, D.C.App., Inc. v. effect, Mar- In net practices long carried shall terminated jurisdiction in this by collection collection of debts elsewhere law. We practice of being an unauthorized that: held enjoined, from and hereby Appellant is advising date, creditors from: after this suit; re- soliciting and bring when to or debts assignments ceiving payment, under which for collection creditor, dependent on from the debtor enforce- contemplates or authorizes suit, brought in the of collection attorney at party, law; behalf employing spe- ognized or an creditor without practices “trade If the custom”. so; authority complained cific written to do inter- engaged of had been in while posing itself between creditor and seeking judgment against a a debtor after legal handling down, action on the Marshall came we would of course claim; instituting maintaining legal governed by that decision. But here the others; appropriating actions for to question ultimate is whether Marshall attorney sums its own use as fees ad- applied retrospectively. should be judged against debtors on While Marshall did not except when such is its speak question, to this hold it (and we property. bona fide Id. at 600. been) should have the intent of this court appears, appellant From all that does not that it be only. Not dispute obtaining pre- only were the valid in this fell case within when entered but these collection of Marshall laid down strictures soon practices long prior history amount- thereafter. The here whether issue ing If we custom. were pre-Marshall these judgments are enforce- court, the trial we only be de- would notwithstanding able that decision. This clining enforce judgments valid when analysis in turn comes down in the final entered —which give rise to a seri- question of whether Marshall was in- problem ous constitutional to say the least prospective only applica- tended to be —but because of the long-standing custom tion. inequitable would also be and not re- quired by compelling Appellant attempted upon to execute considerations.2 pre-Marshall judgment against While it is true that in Marshall by causing a writ of attachment be is- prohibited court upon sued The Riggs served National date, “. from and after this Bank as garnishee. After by answer instituting maintaining legal Riggs holding it was $533.52 actions for others in- this was credit of appellant moved for a only to apply tended to the institution and Viewing of condemnation. our looking maintenance of an action toward a opinion in Marshall likely as to be control- judgment and should not affect execution ling, the trial court deny- entered an order pre-Marshall valid en- when ing sought staying expi- relief tered. This is in the interest a fair and ration of pending by the attachment review orderly justice. See administration of e. this court.1 618,

g., Walker, Linkletter 381 U.S. practices 1731, The ended Marshall had (1965), S.Ct. 14 L.Ed.2d 601 engaged been here Great Railway Northern Co. v. Sunburst judicial disapproval. Co., for decades without Oil Refining & 287 U.S. S.Ct. They were, speaking, Linkletter, manner rec- 77 L.Ed. 360 (1932). Appellant attempted wage Shelley also to file a at There no issue here such as judgment against appellee Kramer, tachment L.Ed. 334 U.S. 68 S.Ct. Johnson, Appellant per- Winston C. Jr. was in where court refused accept formed that the court had mit of racial covenants for refused state enforcement filing wage protection being attachments wherein collection clause. violative of agencies appeared party plaintiff only holding judg as here Not is there no constitutional private but, rather, involving agreements ment creditor. then motioned accept filing are involved valid when entered. attachment appellee Furthermore, said, we have there is no com- Johnson the motion pelling public working denied. two cases consolidated consideration appeal. against allowing here pre-Marshall judgments. trial court. accepted Branch of the “the rule to- Conciliation stated that the Court sparse us reflect records before appropriate the Court day is cases comment, denied without justice ju4ge, make the interest of wage attach- appellant to file leave to prospective.” Id. Johnson;1 against appellee a judg- to enter by written order refused Barnett, 16 N. In 235 Iowa Bump v. upon garnishment ment of condemnation faced with the court was W.2d 579 gar- against appellant had issued question, and said: Boyds, a com- with appellees, nishee of judgment obtained original ment that the however, should, no be uncer- There authority” by “may void under appellant upon [prior judg- tainty in the effect Burleson, D.C.App., Marshall v. 313 A. do not decree herein. We ments] added.) Appel- (Emphasis 2d (1973) 587 or voidable judgments these void deem challenges propriety lant now by unauthorized reason by court. actions the trial practice obtaining of law in them. prevent enforce- should not their decree does not in this court Since doing in so provided that dispute in engaged the unauthorized in unauthor- engage he further does law, by our practice recently as defined Id. 16 practice ized of law. at N. Marshall, when it had earlier W.2d cases, I judgments in these obtained assumption, The is- proceed on also. practice by If is no unauthorized it, ndw posed, sue I see is whether then process, we hold judg- these (1) we should declare proceed judg- lant to enforce these void, permit their (2) ments refuse to

ments. dangling them on enforcement leave pro- Reversed and remanded for further system’s many our dockets like so ceedings. appendages. useless KERN, Judge (concurring): Associate general rule is that for face to void there valid on its be declared My of this case enough view differs essence. going must be a defect its my colleagues those of to warrant authority persuades me I find no brief outline first of the facts and then of through the judgment obtained un- that a my conclusion therefrom. law the cir- practice authorized under utterly Appellant, represented here is so by attorney, cumstances disclosed sought law that it must as a matter of execute on the two flawed anything in Nor do I find earlier obtained voided.2 requires us reach that Marshall3 that these cases—one the Civil Division and the the Small conclusion. Claims and reasoning Appellee brief nor son cases to Johnson neither filed a to extend the of those appearance in on this entered an this court. facts disclosed record. injunction argue approved Bump Barnett, 3.Appellees v. See 235 Iowa applies (1944). Appellees City to actions N.W.2d cite Marshall by attempting Downey Johnson, Cal.App.2d 775, its to enforce taken pre-Marshall Cal.Rptr. judgments, (1968) such actions and Leonard v. Walsh. simply Ill.App.2d 45, (1966) unauthorized are continuation its N.E.2d 57 practice proposition are I think Marshall void. of law. do here, my view, inapplicable dispositive decisions of the issue raised these bar, opinion purports decide the case for both involved nowhere acting representa given non-lawyers secured entered effect capacity appeal tive voided rather rendition. perceive than collateral rea- attack. no subsequent in my complies

Hence are left view with the we with applicable Bump as a matter of whether we should rules of the See court.5 Barnett, equity supra. that there declare upon any shall be no execution extant would reverse the through what proceed to en- court and allow practice declared the unauthorized judgments. force its law. not, While this court should after our PAIR, (dissent- Judge, Retired Associate Marshall, explicit ruling in sanction fur- ing) : ther unauthorized colleagues recognize agencies, we must I am unable to ap- facially to declare valid enforcement of unenforceable that we should appellees they pellant’s judgment against in because Robert the instant cases principles (the in the In the first Boyd Boyds). were obtained violation of and Ibula place, va- judgment later announced in Marshall would effec- the is of doubtful judg- course, tively every opinion. gen- unenforceable in as a lidity my render Of presently go of a behind a of record in the name eral this court validity. agency. resulting inquire confusion as its collection to to escape in the Dis- its re- However, between creditors and debtors court cannot the quite contrary brought trict of sponsibility Columbia would to examine the record public equity. Specifically, if to and here for review. face, judgment, valid on its held appears from the record that What agency is rendered a collection Division in the Civil commenced unenforceable, appear to the creditor would Superior an action entitled proceedings on foreclosed from further “Complaint Promissory on a Note.”1 debtor, Alternatively, the unless debt. the De note, Boyds on made under seal the run, might limitations has

the statute of 23, 1970, payable credit cember to a was underly- to the creditor for the liable also alleged in union installments. judgments of ing debt and be left with two the as- complaint2 its that it was sworn against obligation. but one record him on signee and as such was of the credit union Ap Balancing the considerations of note. to the balance due on the entitled equity,4 against and I think we are the pellant bal $1,386.41, enforcement of the representing for note, from plus favor entered rec- interest ance Marshall, provided per their month to date at the time of ord March 1% validity challenged Appellees copy 4. attached have never 1. A the note was upon original obligations complaint part of the record. and is judgments. Nor and obtained its lant sued by appropriate party motion not a was have attacked 2. The credit union argument on brief and in in the trial court or action. validity this court sug- proposition showing merits; their hence There is no record gested dissenting opinion (at 365) purposes was, § of D.C.Code contrary 28:3-301, -302, or that those entered the note the holder of party interest and I not consider is not before us the real otherwise was 17(a). developed Super.Ct.Civ.R. purposes has not been on the record Hamilton, argued. Nat. and briefed and Cf. D.C.Mun.App., Washington, A.2d Bank of (1950). instant cases understand argument at oral its fee have waived 20% client, for services rendered to its own creditor. thereafter, leagues H. Marshall & per that J. annum 6% Burleson, D.C.App., A.2d 587 Inc. attorney’s fees 20% only. (1973), must be principal interest due and sum of the that a collection held that case is no record We owing at that time. There interpose be lawfully itself cannot any challenge showing of employed attorney an maintain, tween a creditor and name and standing its own debt to collect the creditor’s promissory note. right, the action on the “[t]o indirectly, by an directly However, escape do so attention it does . assignment or otherwise consti (1) provided in D.C.Code as § practice of law. -202, promissory note such tutes the unauthorized 28:3-201(3), H. Marshall be trans- as the one here involved the District (2) only ferred endorsement provides that 28:3-301 D.C.Code § [Ejnjoined, from and after [December instrument only the holder of an instituting or 1973], com- See and maintain an action thereon. others; maintaining legal actions for pare Finance Shroyer Bonuso v. Loan & use at- appropriating own Co., D.C.Mun.App., 37 adjudged against debt- torney fees sums note, Thus, except ors on when such absent endorsement property. its bona whatever claim [Id. fide 600; emphasis appellant supplied.] it assigned was Boyds that not claim of properly could have been the Marshall, as prospective application A of promissory credit union on the note. proposed majority opinion, We note from the record that permit appellant and other collection assignee has at all identified as times been agency judgment which obtained a Under the circum- credit union. claim, decision, assigned prior to that extremely stances it is doubtful it there is enforce no unauthorized “[i]f jurisdiction trial court had of either the process practice promissory subject matter which ,”5 Barnett, Bump v. 235 . See party note or the credit union —the real 308, 16 579, (1944). Iowa N.W.2d 584 Supply Paving interest. See also v.Wolf D.C.Mun.App., Equipment Company, and says is majority What the that: (1959); 154 Blouse York cf. Marshall did While Bros., Inc., Corp. Kaplowitz D.C.Mun. speak question, we hold it was this App., are (1953). 97 A.2d 465 What we (and been) should have the intent of is to sanction the enforce- asked therefore contrary to ment of a only, . of controlling Congress acts of and a rule court4 which satisfaction apparent difficulty holding with this sought. is the Marshall division of the court contrary crys- language be taken as to declared to the But whatever view appellant’s judgment saying tal clear that collection are validity “enjoined, 28, and Boyds, my with col- after cannot from [December suggest My colleagues bow, Super.Ct.Civ.R. 17(a) in ob- 4. : do legal Every judgment by Party taining Real In Interest. action satisfaction prosecuted process, the restrictions shall the name of the real can avoid injunction. party party In the concur- . . [A] interest. . suggested ring opinion own it seems to be authorized statute sue party joining perhaps has a vested interest him the without brought. of law is benefit the action the fruits of unauthorized for whose honor. which this court 366

1973], instituting shall, . or main- has remained undisturbed for taining legal years. actions others more than 170 Said the in a assigned 623, 85 claims. footnote at 381 U.S. S.Ct. 1734: note, interesting however, words and after” like It “from 1801, “on are as early words and after” words retro- Chief Justice spectivity. They simple plain words Marshall in United States v. Schooner 103, 49, ordinary meaning. Peggy, The term 2 Cranch L.Ed. that as vision of this omitted.] Ryan, language employed judgment as to deem it to have been settled by M.A.P. v. Marshall decision ity guished colleagues, have been they say, i. claim. employed in the Marshall decision must action The conclusion seems My colleagues, relying upon With plication sequence of days; area static point A.D.2d of time in a “On and after” is a Walker, thereafter the words “from and after this D.C.App., modify it describes becomes a matter of internal to collect a debt on an concept every from which intended to mean this court e., 168 N.Y.S.2d court Sipal Realty Corporation, 5 or institute maintain a what was intended successive that no collection 285 A.2d overrule, time; respect in the will overrule the succeeding compelled, flowing fixes a it is a substitute their enlarged. Ap- injunction. precisely . .” [Footnote their author- 312 (1971), effect, description continuous Linkletter beginning therefore, “no di- distin- date”, not a prior what legal time I this record it is too clear for discussion time the to an am unable to share their concern. From arrangement permit sum of rious constitutional L.Ed. See also Vandenbark v. Owens-Illinois Mem. Hous. ing). District 54 L.Ed. 228 Glass Coal But, say my colleagues, if we ‡ made clear that governs be set in violation cide it be “if ** appellant’s Co., attorney’s Co., subsequent appellate positively changes according court] necessary is aside.” Cranch % principal * 311 U.S. Corp., D.C.App., limited to its which cannot ** (1910) (Holmes, J., fee interest, % Columbia v. Linda Pollin court, law, to set 349, 372, of the problem is satisfied.6 And and interest * before existing laws, Kuhn v. the court must de- ^[*] include the aside if judgment, contingent the rule which will arise. S.Ct. 313 A.2d 579 any, 20% affirmed but ^[*] intervenes Fairmont refuse dissent- [in at the % right a must fee se- if (1965) say, however, L.Ed.2d 601 my it view makes no difference that justice, the interest of Marshall must stands in the name applied prospectively only. Significantly lant, undisputed because it is this record enough Supreme the Linklet- that the bona interest in the fide ter quoted approval case cited and union, is in the as payee credit opinion from the of Chief Mar- promissory note7 or Justice argument appellant’s promissory At oral indi- 7. A is not chose in note action attorney’s assigned pursuant cated that he would waive the fee. and therefore not be But 28-2303, he made no such waiver at the trial and as to D.C.Code so § person demand the fee included in the than holder maintain judgment. action thereon in his own name. ap- other claim whatever

pellant.

Nevertheless, colleagues say that be- activity agencies,

cause Associates, by H. Marshall and

outlawed J. Burleson, supra, had sanc-

Inc. v. been time, in- long such

tioned for compel-

equitable public deny en-

ling policy consideration to judgment.

forcement said

short answer to this what was This

above. division overrule, effect,

modify deci- Moreover, there are

sion of court. if

equities considerations

other than those that the deci- influenced that, appear

sion in Marshall it would fa- above, they indicated more

reasons

vorable to than the collection persuaded

agency. I am not therefore judgment possesses sanctity notwithstanding should be H. enforced Burleson,

Marshall and Inc. v. controlling.

supra, my opinion which in respectfully dissent. WILLIAMS, Appellant,

John D. STATES, Appellee.

UNITED

No. 9034. Appeals. July 10,

Submitted July 31,

Decided

Case Details

Case Name: Kelly Adjustment Co. v. Boyd

Court Name: District of Columbia Court of Appeals

Date Published: Jul 31, 1975

Citation: 342 A.2d 361

Docket Number: 8239, 8240

Court Abbreviation: D.C.