LEXSEE 549 A.2D 1107PositiveAs of: Apr 18, 2007

FERRIS N. BROWNER, APPELLANT, v. DISTRICT OF COLUMBIA,APPELLEE. RITA A. WALKER, A/K/A RITA BROWNER, APPELLANT, v.DISTRICT OF COLUMBIA, APPELLEENos. 86-220, 86-221Court of Appeals of the District of Columbia

549 A.2d 1107

;

1988 D.C. App. LEXIS 202

July 12, 1988, ArguedNovember 8, 1988, Decided

PRIOR HISTORY:

[**1] Appealsfrom the Superior Court of theDistrict of Columbia, Hon. Fred L.McIntyre, Trial Judge

DISPOSITION:

Affirmed.

CASE SUMMARY:PROCEDURAL POSTURE:

Defendantsappealed their convictions of loansharking in violation of

D.C. CodeAnn. § 26-701

, which was entered bythe Superior Court of the District ofColumbia, contending that they werenot money lenders.

OVERVIEW:

The controversy in this casearose out of a number of transactionsin 1981 and 1982 between defendantsand several homeowners who were infinancial difficulty and were facingimminent foreclosure on their homes.The state charged that thesetransactions were loans at an interestrate that exceeded 6 percent, anddefendants claimed that, rather thanmaking loans, they were purchasinghomes, leasing them back, andproviding the former homeowners withan option to repurchase. There wasevidence that defendants placedadvertisements as money lenders.Defendants were convicted of loansharking in violation of

D.C. CodeAnn. § 26-701

in the trial court anddefendants appealed. The court heldthat while the sales saved the homesfrom immediate foreclosure, thehomeowners were required to pay amonthly rent, which was generally atleast twice their former mortgagepayment, thus the trial judge'sfindings were based squarely on thecredibility of the witnesses and couldnot be disturbed because they were notshown to be without evidentiarysupport and plainly wrong, therefore,the convictions were affirmed.

OUTCOME:

The court affirmed defendantsconvictions because the trial judge'sfindings were based squarely on thecredibility of the witnesses and onthe inferences drawn from theirtestimony by the judge as trier offact, thus his findings could not bedisturbed because they were not shownto be without evidentiary support andplainly wrong.

CORE TERMS:

loan sharking, jury trial,homeowner, foreclosure, lender's,petty offenses, borrower's, mortgage,repurchase, purported, lend, usurylaws, common law, sale price, maximumpenalty, imprisonment, convicted,

license, recusal, advertisements,interest rates, statutory right, malumin se, plain error, accompanied,indictable, violating, financing,imminent, usurious

LexisNexis(R) Headnotes

Criminal Law & Procedure > CriminalOffenses > Miscellaneous Offenses > General Overview

[HN1] The Loan Sharking Act,

D.C. CodeAnn. § 26-701

(1981), which providesin pertinent part that it shall beunlawful and illegal to engage in theDistrict of Columbia in the businessof loaning money upon which a rate ofinterest greater than 6 per centum perannum is charged on any security ofany kind, direct or collateral,tangible or intangible, withoutprocuring a license.

Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process> Right to Jury TrialConstitutional Law > Bill of Rights > Fundamental Rights > Criminal Process> Speedy TrialCriminal Law & Procedure > Pretrial Motions > Speedy Trial > GeneralOverview

[HN2] The

U.S. Const. amend. VI

provides that in all criminalprosecutions, the accused shall enjoythe right to a speedy and public trialby an impartial jury. Art. III, § 2,cl. 3 similarly states that the trialof all crimes shall be by Jury. Theright of trial by jury, however, doesnot extend to every criminalproceeding. The Supreme Court has heldthat a potential sentence ofimprisonment for more than six monthswill take a criminal act out of thecategory of petty offense, and renderit triable by jury.

Criminal Law & Procedure > Trials > Defendant's Rights > Right to Jury Trial > Petty OffensesGovernments > Legislation > Statutory Remedies & Rights

[HN3] There is also a statutory rightto a jury trial in the District ofColumbia for offenses carrying a fineof $ 300.00 or more or imprisonmentfor more than ninety days.

D.C. CodeAnn. § 16-705(b)

(1981). This courthas held that

§ 16-705(b)

measures thelimits of the right to a jury trial,and that offenses for which themaximum punishment is not above thestatutory threshold are generallytriable by the court.

Civil Procedure > Counsel > GeneralOverview Criminal Law & Procedure > Pretrial Motions > Disqualification & Recusal

[HN4] Failure to file such anaffidavit in timely fashion,accompanied by a certificate bycounsel of record stating that it ismade in good faith, defeats the chargeof bias. Indeed, the lack of acertificate of good faith signed bycounsel is, standing alone, asufficient reason to deny the motionfor recusal.

COUNSEL:

W. Edward Thompson, with whomJ. Lincoln Woodard was on the brief,for appellants.Edward E. Schwab, AssistantCorporation Counsel, with whomFrederick D. Cooke, Jr., CorporationCounsel, Charles L. Reischel, DeputyCorporation Counsel, and LutzAlexander Prager, Assistant DeputyCorporation Counsel, were on thebrief, for appellee.

JUDGES:

Mack and Schwelb, AssociateJudges, and Pryor, Senior Judge.

* Judge Pryor was Chief Judgeof this court at the time ofargument. His status changed toSenior Judge on November 2, 1988.

OPINION BY:

SCHWELB

OPINION

[*1108] Where thereal truth is a loan of

money, the wit of man cannotfind a shift to take it outof the statute. Lord Mansfield in

Floyer v. Edwards

, 1Cowp. 112, 114-115, 98 Eng. Rep. 995,996 (1774).IPerhaps because so many of us haveto live on credit and envy those whohave the cash, it is fair to say that,rightly or wrongly, money lenders ingeneral and usuers in particular havenot been dealt with kindly in HolyScripture, in literature, or injudicial rhetoric. The Bible warns usthat "the borrower is servant to the[**2] lender,"

and instructs that if you lend money to anyof my people with you who ispoor . . . you shall notexact interest from him.

Shakespeare's character Polonius,speaking to his son Laertes about theways of the world, providesunambiguous counsel on this subject:1 PROVERBS, Chapter 2, Verse 7.2 EXODUS, Chapter 22, Verse 25.Neither a borrower nor a lender be.

The Bard also introduces us toShylock, perhaps the most famous (orinfamous) money lender in all offiction, who seeks to [*1109] exacta pound of his anti-Semitic enemy'sflesh as liquidated damages forfailure to repay a loan.

3 HAMLET, Act I, Scene 3.4 THE MERCHANT OF VENICE, ActI, Scene 3, and

passim

.Not to be outdone, one court hasdescribed the practices which usuryand loan sharking laws were designedto punish as "an actual, manifest,fearsomely violent evil,"

People v.Ayers, 109 Misc. 2d 870, , 440N.Y.S. 2d 1019, 1023 (1981)

, and asecond has commented that loansharking is "one of the most heinous,virtually blood-sucking, criminalactivities of all times."

People v.Fernandez, 93 Misc. 2d 127, , 402N.Y.S.2d 940, 943 (1978)

Those wholend money [**3] at high interestrates sometimes become rich, but humannature being what it is, they seldomwin the plaudits of the crowd or thegoodwill of their less affluent fellowcitizens.5 To avoid anymisunderstanding, the rhetoriccited above was not directed atthese defendants, who are chargedonly with making loans without alicense and the New York opinionsprobably had reference to thekinds of loan sharks who useviolence and intimidation toterrorize hapless debtors. Thereis no evidence of such conduct inthe present case. Nothing in thisopinion is intended to addressthe wisdom or lack thereof ofeconomic or other criticisms ofthe usury laws.

See, e.g.

, Jordanand Warren,

The Uniform Consumer Credit Code

, 68 COLUMBIA L. REV.387, 388

et seq.

(1968).In the present case, the principalquestion is whether the appellantsRita A. Walker and Ferris Browner, whoare wife and husband, and who deniedbeing in the business of money lendingat all, were actually engaged in thecriminal enterprise of making loans ina disguised form at legallyimpermissible rates and without alicense. The trial judge, HonorableFred L. McIntyre, sitting without ajury, found the evidence [**4]sufficient to establish beyond areasonable doubt that the transactionsin the record, although otherwisedenominated by the defendants, were inreality loans of the prohibitedcharacter. We agree and affirm bothappellants' convictions.IIMs. Walker and Mr. Browner wereconvicted of three counts each

ofviolating [HN1] the Loan Sharking Act,

D.C. Code § 26-701

(1981), which