THOMAS JANIS, ET AL.
TRUST COMPANY, AS CERTIFICATE TRUSTEE ON BEHALF OF BOSCO CREDIT II TRUST SERIES 2010-1, ET AL.
Circuit Court of Prince George County; W. Tomko, Judge.
Counsel Henry W. McLaughlin (The Law Office of Henry
McLaughlin, P.C.) for appellant.
K. Eisenhauer for appellee.
GRANTED APPEAL SUMMARY
Circuit Court of Prince George County, Virginia ("the
trial court") erred in its oral ruling on July 24, 2017
that the claim of the appellants, Thomas Janis and Kimberly
O. Janis ("the Janises") for an injunction based on
usury failed because their claim of usury was based on
averred improper charges that were de minimus. This
was error, even though the trial court noted that injunctions
are not to be granted liberally, because of the following:
A. The Janises sought an injunction to prevent a foreclosure
of their home based on usury in a subsidiary mortgage loan
based on Va. Code Ann. Section 6.1-330.72 ("Section
B. Section 6.1-330.72, at all relevant times, provided what
charges are allowed in subsidiary mortgage loans, and
stating, in pertinent part (excluding certain charges
otherwise allowed by such statute not applicable to this
case) "No other charges of any kind shall be imposed on
or be payable by the borrower either to the lender or any
other party in connection with such loan ...."
C. In Garrison v. First Federal Savings and Loan,
402 S.E.2d 25 (1991) this Court held that any charge not
attributable to principal or all allowed charge for
collateral services is interest. Therefore, if the lender in
this case imposed charges on the Janises that were neither
towards principal or allowable collateral charges, such
imposed charges were interest and any such interest
disallowed by Section 6.1-330.72 constituted disallowed
interest and therefore usury.
D. The Janises' complaint ("the complaint")
verified by Kimberly O. Janis under oath, plausibly set forth
that the lender imposed on the Janises two usurious charges
-one for $1 as an overcharge of the recordation fee and the
other for $158 for a claim of payment of a charge owed by the
Janises which was tendered but not completed and not refunded
E. There is no de minimum [sic] exception to the
usury prohibition in Section 6.1-330.72.
F. Under the provisions of Va.Code Ann. Section 6.2-304
("Section 6.2-304") because the subject loan was
usurious, no interest was owed on the loan.
G. In their complaint, vertified [sic] by the Janises under
oath, because they owed no interest on the subject loan
(pursuant to Section 6.2-304) they had satisfied the loan in
full because they had paid more than the $26, 000 of the
principal of the loan.
H. Because the Janises had satisfied the loan in full, it was
error for the trial court on July 24, 2017 to rule against
their plea for an injunction to prevent foreclosure of their
home on July 25, 2017.
trial court erred in its written order entered on July 25,
2017 denying injunctive relief as to Count One of the
complaint. This was error for the reasons set forth in
Assignment of Error No.1, in Assignment of Error No.1 [sic],