United States Of America Cash Advance Centers v. Oxendine


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 wage advance, Inc., United States Of America payday advances Advance Center #8, Inc., United States Of America payday advances Advance Center #9, Inc., United States Of America cash advance Center #10, Inc., United States Of America cash advance Center #11, Inc., United States Of America cash advance Center #12, Inc., United States Of America cash advance Center #13, Inc., and United States Of America cash advance Center #14, Inc. brought a declaratory judgment action against John W. Oxedine, independently plus in their formal capability as Industrial Loan Commissioner, in Fulton Superior Court to find out that the Industrial Loan Commissioner does not have jurisdiction over its company techniques as company for and associated with County Bank of Rehobeth Beach, a Delaware state chartered bank, that is susceptible to legislation beneath the Federal Deposit Insurance Act. Nonetheless, the company agreement with County Bank ended up being never ever intoduced into proof so your merits for the declaratory judgment action could never be reached by the test court no matter if there was indeed a fatigue of administrative treatments by United States Of America pay day loan. Oxendine relocated for summary judgment for plaintiffs’ failure to exhaust plaintiffs’ administrative treatments prior to the Industrial Loan Commissioner; the movement for summary judgment had been given by the test court for Oxendine. Finding no mistake, we affirm.

In July of 2002, the Commissioner authorized an study of the loan that is”payday tasks of USA Payday Advance Centers. An administrative “show cause” order issued, and the plaintiffs were among the parties named in the order as a result of the examination. Following the hearing on October 11, 2002, the Commissioner unearthed that the plaintiffs had been in breach associated with Industrial Loan Act for making loans with no loan that is industrial as well as 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 asking a yearly rate of interest of 650%. On October 22, 2002, the court that is superior plaintiffs’ benefit of your order. On 2, 2002, plaintiffs dismissed that appeal december.

On December 3, 2003, plaintiffs filed this declaratory judgment action and alleged which they no further made the loans but that, as “companies” for County Bank, the loans had been now created by County Bank through them. November 13, 2002, ended up being the date that is effective such start up business procedure to begin with. Plaintiffs stated an exemption through the Georgia Industrial Loan work as agents for the out-of-state bank. But, such provider contract, that has been alleged into the verified pleadings, ended up being never placed into proof.

at that time that the declaratory judgment action ended up being brought, the Commissioner hadn’t determined whether or perhaps not to start a study into plaintiffs’ start up business arrangement with County Bank, due to the fact 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 in the grounds that no “actual or controversy that is justiciable existed pertaining to plaintiffs’ brand brand brand new arrangement with County Bank and that there have been no ruling desired on plaintiffs’ brand brand brand new arrangement because of the Commissioner pursuant to their regulations allowing needs for declaratory rulings. Consequently, plaintiffs did not exhaust its administrative treatments ahead of looking for action that is judicial.

Under OCGA § 7-3-1 et seq., the Georgia Industrial Loan Act, loans under $3,000 or less come inside the ambit of this Act. “a loan that is payday financing of quick period, typically a couple of weeks, at an astronomical yearly interest rate[.]” Smith v. Steinkamp, 318 F.3d 775, 776-777 (7th Cir. 2003). Pay day loans are the existing form of “salary buying” or “wage buying.” See Gunnels v. Atlanta Bar Assoc., 191 Ga. 366, 381(3) ( 12 S.E.2d 602) (1940); Hinton v. Mack Publishing Co., 41 Ga. App. 823, 826 ( 155 SEARCH ENGINE 78) (1930). The costs, fees, and interest on a quick payday loan are between 15% and 30% regarding the principal for the two-week loan, 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. always check Holders, Inc., 996 S.W.2d 496 (Ky. 1999). Considering that the Georgia Industrial Loan Act ended up being enacted to “define and stop usury” and also to supply a supply of regulated funds “for individuals who was in fact borrowing at usurious prices from loan sharks, road shylocks and wagebuyers[,]” then such financial transactions come in the jurisdiction associated with 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 perhaps the loan provider does not hold a commercial permit granted by the Commissioner, then “payday loans” violate the Georgia Industrial Loan Act. See 2002, Op. Att’y Gen. No. 2002-3.

Securities Inv. Co. v. Pearson, 111 Ga. App. 761, 762 ( 143 S.E.2d 36) (1965).

Freeman v. Decatur Loan Finance Corp., 140 Ga. App. 682, 685 ( 231 S.E.2d 409) (1976).

Some payday lenders have contracted with federally chartered banks or state chartered banks insured by the FDIC to take advantage of federal banking laws that allow such banks to make loans across state lines without regard to that state’s interest and usury laws in “rent-a-charter” or “rent-a-bank” contracts in an attempt to circumvent state usury laws. See State of Colorado ex rel. Salazar v. ACE money Express, Inc., 188 F. Supp.2d 1282, 1285-1286 (D.Colo. 2002); very very very very 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 took place this situation and whether it’s genuine or perhaps a subterfuge that is mere to circumvent Georgia usury legislation can not be reached in this situation, since the plaintiffs neglected to exhaust administrative treatments also to place the contract with County Bank into proof.

[a]n action for declaratory judgment won’t be amused in which the liberties associated with events have previously accrued additionally the plaintiff faces no chance of using future undirected action. Where a statute provides a celebration with a way of review by an administrative agency, such procedure is normally a sufficient treatment at legislation in order to preclude the grant of equitable relief.

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