Kelly Adjustment Co. v. Boyd

GALLAGHER, Associate Judge:

Appellant is a collection agency which obtained judgments against appellee debtors prior to our decision in J. H. Marshall and Associates, Inc. v. Burleson, D.C.App., 313 A.2d 587 (1973). In net effect, Marshall terminated practices long carried on by collection agencies in this jurisdiction and elsewhere in the collection of debts as being an unauthorized practice of law. We held that:

Appellant is hereby enjoined, from and after this date, from: advising creditors when to bring suit; soliciting and receiving assignments of claims or debts for collection under which payment, to the assignor or creditor, is dependent on collection from the debtor and which contemplates or authorizes the enforcement of collection by suit, brought in the name of either party, by an attorney at law; employing a lawyer on behalf of *362the creditor or an assignor without specific written authority to do so; interposing itself between the creditor and the lawyer handling legal action on the claim; instituting or maintaining legal actions for others; and appropriating to its own use as attorney fees sums adjudged against debtors on assigned claims except when such judgment is its bona fide property. Id. at 600.

From all that appears, appellant does not dispute that its practice in obtaining pre-Marshall judgments in this case fell within the strictures of Marshall laid down soon thereafter. The issue here is whether these pre-Marshall judgments are enforceable notwithstanding that decision. This in turn comes down in the final analysis to the question of whether Marshall was intended to be prospective only in application.

Appellant attempted to execute upon his pre-Marshall judgment against the Boyds by causing a writ of attachment to be issued and served upon The Riggs National Bank as garnishee. After answer by Riggs that it was holding $533.52 to the credit of appellees appellant moved for a judgment of condemnation. Viewing our opinion in Marshall as likely to be controlling, the trial court entered an order denying the relief sought and staying the expiration of the attachment pending review by this court.1

The practices ended by Marshall had been engaged in by collection agencies here for decades without judicial disapproval. They were, in a manner of speaking, a recognized “trade custom”. If the practices complained of had been engaged in while seeking a judgment against a debtor after Marshall came down, we would of course be governed by that decision. But here the ultimate question is whether Marshall should be applied retrospectively.

While Marshall did not specifically speak to this question, we hold it was (and should have been) the intent of this court that it be applied prospectively only. Not only were the judgments in question valid when entered but these collection agency practices had a long prior history amounting to custom. If we were to agree with the trial court, we would not only be declining to enforce judgments valid when entered — which would give rise to a serious constitutional problem to say the least —but because of the long-standing custom it would also be inequitable and not required by compelling public policy considerations.2

While it is true that in Marshall this court prohibited any collection agency “. . . from and after this date, from instituting or maintaining legal actions for others . . .” this was intended to apply only to the institution and maintenance of an action looking toward a judgment and should not affect execution on pre-Marshall judgments valid when entered. This is in the interest of a fair and orderly administration of justice. See e. g., Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932). In Linkletter, *363the Court stated that “the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective.” Id. 381 U.S. at 628, 85 S.Ct. at 1737.

In Bump v. Barnett, 235 Iowa 308, 16 N. W.2d 579 (1944), the court was faced with this question, and said:

There should, however, be no uncertainty in the effect upon [prior judgments] of the decree herein. We do not deem these judgments void or voidable by reason of appellant’s unauthorized practice of law in obtaining them. The decree should not prevent their enforcement . . . provided that in so doing he does not engage in further unauthorized practice of law. Id. at 316, 16 N. W.2d at 584.

If there is no unauthorized practice by the agency in the process, we hold appellant may proceed to enforce these judgments.

Reversed and remanded for further proceedings.

. Appellant also attempted to file a wage attachment for a judgment against appellee Winston C. Johnson, Jr. Appellant was informed that the court had refused to accept for filing wage attachments wherein collection agencies appeared as party plaintiff and judgment creditor. Appellant then motioned the court to accept the filing of an attachment against appellee Johnson and the motion was denied. The two cases were consolidated on appeal.

. There is no issue here such as in Shelley v. Kramer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), where the court refused to permit state enforcement of racial covenants for being violative of the equal protection clause. Not only is there here no constitutional holding involving private agreements but, rather, there are involved judgments valid when entered. Furthermore, as we have said, there is no compelling public policy consideration working here against allowing enforcement of these pre-Marshall judgments.