USA Cash Advance Centers v. Oxendine
DECIDED: 1, 2003 august
Summary judgment. Fulton Superior Court. Before Judge Longer.
Troutman Sanders, William M. Droze, David M. Green, for appellants.
Thurbert E. Baker, Attorney General, Sidney R. Barrett, Jr., Isaac Byrd, Senior Assistant Attorneys General, Samantha M. Rein, Assistant Attorney General, for appellee.
United States Of America payday advances Advance Centers, American advance loan, Inc., EZ Credit, Inc., Fast money `Til Payday, Inc., Great American advance loan, Inc., Great American Credit, Inc., Monday `Til Payday, Inc., United States Of America pay day loan, Inc., United States Of America Payday Cash Advance Center #8, Inc., United States Of America payday advances Advance Center #9, Inc., United States Of America Payday Cash Advance Center #10, Inc., United States Of America cash advance Center #11, Inc., USA cash advance Center #12, Inc., United States Of America cash advance Center #13, Inc., and USA cash advance Center #14, Inc. Brought a declaratory judgment action against John W. Oxedine, indiv motion for summary judgment had been awarded because of the test court for Oxendine. Finding no mistake, we affirm.
In July of 2002, the Commissioner authorized a study of the “payday loan” tasks of USA Payday Advance Centers. Due to the examination, an administrative “show cause” order released, and also the plaintiffs had been on the list of parties known as into the order. Following the hearing on October 11, 2002, the Commissioner discovered that the plaintiffs had been in breach associated with Industrial Loan Act to make loans lacking any loan that is industrial plus in making false and misleading advertisments of loans; the Commissioner commanded them to stop and desist from making loans “except as permitted beneath the Georgia Industrial Loan Act. ” Plaintiffs had been charging you an interest that is annual of 650%. On October 22, 2002, the court that is superior plaintiffs’ selling point of your order. On December 2, 2002, plaintiffs dismissed that appeal.
The loans were now made by County Bank through them on December 3, 2003, plaintiffs filed this declaratory judgment action and alleged that they no longer made the loans but that, as “service providers” for County Bank. November 13, 2002, had been the effective date for such home based business procedure to start. Plaintiffs reported an exemption through the Georgia Industrial Loan behave as agents when it comes to out-of-state bank. Nonetheless, such provider agreement, which was alleged when you look at the verified pleadings, ended up being never placed into proof.
During the time that the declaratory judgment action had been brought, the Commissioner hadn’t determined whether or perhaps not to start a study into plaintiffs’ start up business arrangement with County Bank, as the Commissioner had no details about the newest arrangement and loans and had taken no place in regards to the procedure that is new.
The Commissioner relocated for summary judgment from the grounds that no “actual or controversy that is justiciable existed pertaining to plaintiffs’ brand brand new arrangement with County Bank and that there have been no ruling desired on plaintiffs’ new arrangement by the Commissioner pursuant to his laws permitting needs for declaratory rulings. Consequently, plaintiffs did not exhaust its administrative treatments ahead of searching for action that is judicial.
The Georgia Industrial Loan Act, loans under $3,000 or less come within the ambit of the Act under OCGA § 7-3-1 et seq. “that loan that is payday that loan of quick period, typically a couple of weeks, at an astronomical annual interest rate. ” Smith v. Steinkamp, 318 F. 3d 775, 776-777 (7th Cir. 2003). Payday advances are the present form of “salary buying” or “wage buying. ” See Gunnels v. Atlanta Bar Assoc., 191 Ga. 366, 381(3) ( 12 602 that is s.E. 2d (1940); Hinton v. Mack Publishing Co., 41 Ga. App. 823, 826 ( 155 INTERNET SEARCH ENGINE 78) (1930). The charges, charges, and interest on an online payday loan are between 15% and 30% of this principal for the loan that is two-week constituting a pretext for usury. Cashback Catalog selling, Inc. V. Cost, 102 F. Supp. 2d 1375, 1380 (S.D. Ga. 2000); see also Greenberg v. Commonwealth, 255 Va. 594 ( 499 S.E. 2d 266) (1998); White v. Check always Holders, Inc., 996 S.W. 2d 496 (Ky. 1999). Considering that the Georgia Industrial Loan Act ended up being enacted to “define and avoid usury” and also to give a way to obtain regulated funds “for people who was indeed borrowing at usurious prices from loan sharks, road shylocks and wagebuyers, ” then such financial transactions come inside the jurisdiction of this Act. Consequently, the Industrial Loan Commissioner has jurisdiction over “wage-buyers. ” OCGA § 7-37-1 et seq.; 1954-56 Op. Att’y Gen. At pp. 385-386. In the event that maximum rate of interest has ended the limitation set by OCGA § 7-3-14 of 10per cent or the loan provider does not hold an industrial permit released because of the Commissioner, then “payday loans” violate the Georgia Industrial Loan Act. See 2002, Op. Att’y Gen. No. 2002-3.
Freeman v. Decatur Loan Finance Corp., 140 Ga. App. 682, 685 ( 231 S.E. 2d 409) (1976).
So as to circumvent state usury legislation, some payday loan providers have actually contracted with federally chartered banking institutions or state chartered banks insured by the FDIC to benefit from federal banking regulations that enable such banking institutions to create loans across state lines without respect to that state’s interest and usury legislation in “rent-a-charter” or “rent-a-bank” contracts. See State of Colorado ex rel. Salazar v. ACE money Express, Inc., 188 F. Supp. 2d 1282, 1285-1286 (D. Colo. 2002); Long v. ACE money Exp., 2001 U.S. Dist. Lexis 24617 (M.D. Fla. 2001); Goleta Nat’l Bank v. Lingerfelt, 211 F. Supp. 2d 711 (E.D.N.C. 2002). Whether it has happened in this situation and whether it’s genuine or perhaps a simple subterfuge meant to circumvent Georgia usury rules can’t be reached in this instance, as the plaintiffs did not exhaust administrative treatments also to place the contract with County Bank into proof.
The judicial branch lacks jurisdiction to deal with an executive branch function until there has been an exhaustion of administrative remedies, i.e., the executive branch has no further remedy under the separation of powers under the Georgia Constitution. The particular empowerment that is legislative judicial overview of executive action is strictly followed. Perkins v. Dep. Of medical attention, 252 Ga. App. 35, 36-38(1) ( 555 S.E. 2d 500) (2001). The explanation is “resort towards the administrative procedure will let the agency to utilize its expertise, protect the agency’s autonomy, enable an even more efficient quality, and bring about the consistent application of issues in the agency’s jurisdiction. ” Cerulean Co., Inc. V. Tiller, 271 Ga. 65, 67(1) ( 516 S.E. 2d 522) (1999). A plaintiff “is forbidden from doing by indirection that which it really is forbidden from doing straight, i.e., bypassing the fatigue of administrative appeals. ” (Citations omitted. ) Perkins v. Dept. Of medical attention, supra at 38.
Long-standing Georgia legislation calls for that an event aggrieved by a situation agency’s decision must raise all dilemmas before that agency and exhaust available administrative treatments before searching for any review that is judicial of agency’s decision. So long as there clearly was a car title loans near me very good and available remedy that is administrative a celebration is needed to pursue that remedy before looking for equitable relief in superior court.
Cerulean Co., Inc. V. Tiller, supra at p. 66. Subsequently,
An action for declaratory judgment won’t be amused where in actuality the legal rights regarding the events have previously accrued in addition to plaintiff faces no threat of taking future undirected action. Where a statute provides an event with a way of review by the administrative agency, such procedure is usually a sufficient treatment at legislation in order to preclude the grant of equitable relief.