DECIDED: AUGUST 1, 2003
Summary judgment. Fulton Superior Court. Before Judge Long.
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 judgment that is declaratory against John W. Oxedine, indiv motion for summary judgment had been awarded by the test court for Oxendine. Finding no mistake, we affirm.
In July of 2002, the Commissioner authorized an study of the « payday loan » tasks of USA Payday Advance Centers. Because of the assessment, an administrative « show cause » order released, while the plaintiffs had been among the list of events known as when you look at the purchase. Following the hearing on October 11, 2002, the Commissioner discovered that the plaintiffs were in breach for the Industrial Loan Act for making 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 underneath the Georgia Industrial Loan Act. » Plaintiffs had been billing an interest that is annual of 650%. On October 22, 2002, the superior court denied plaintiffs’ selling point of your order. On 2, 2002, plaintiffs dismissed that appeal december.
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, ended up being the date that is effective such home based business procedure to start. Plaintiffs advertised an exemption through the Georgia Industrial Loan behave as agents when it comes to out-of-state bank. But, such provider contract, that has been alleged within the verified pleadings, had been 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, since the Commissioner had no details about this new 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 justiciable debate » existed pertaining to plaintiffs’ brand new arrangement with County Bank and that there have been no ruling desired on plaintiffs’ brand brand new arrangement by the Commissioner pursuant to their laws allowing demands for declaratory rulings. Consequently, plaintiffs didn’t exhaust its administrative treatments ahead of seeking 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. « a loan that is payday financing of brief length, typically fourteen days, at an astronomical yearly interest rate. » Smith v. Steinkamp, 318 F. 3d 775, 776-777 (7th Cir. 2003). Pay day loans are the present type 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 SEARCH ENGINE 78) (1930). The charges, costs, and interest on a quick payday loan are between 15% and 30% associated with the principal for a loan that is two-week constituting a pretext for usury. Cashback Catalog selling, Inc. V. Cost, 102 F. installment loans for bad credit 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 stop usury » and also to offer a supply of regulated funds « for individuals who was indeed borrowing at usurious prices from loan sharks, road shylocks and wagebuyers, » then such transactions that are financial in the jurisdiction associated with the 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. Then »payday loans » violate the Georgia Industrial Loan Act if the maximum interest rate is over the limit set by OCGA § 7-3-14 of 10% or the lender fails to hold an industrial license issued by the Commissioner. 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).
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 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, as the plaintiffs neglected to exhaust administrative treatments and 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 precise empowerment that is legislative judicial post on 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 the fact that « resort towards the administrative process will enable the agency to put on its expertise, protect the agency’s autonomy, enable an even more efficient quality, and lead to the consistent application of issues inside the agency’s jurisdiction. » Cerulean Co., Inc. V. Tiller, 271 Ga. 65, 67(1) ( 516 S.E. 2d 522) (1999). A plaintiff « is prohibited 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 choice must raise all dilemmas before that agency and exhaust available administrative treatments before looking for any judicial summary of the agency’s choice. Provided that there clearly was a very good and available administrative treatment, a celebration is needed to pursue that treatment before searching 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 liberties associated with the events have accrued plus the plaintiff faces no danger of taking future undirected action. In which a statute provides a celebration with a way of review by an agency that is administrative such procedure is normally a satisfactory treatment at legislation in order to preclude the grant of equitable relief.