CopyCited 17 times | Published | Supreme Court of Georgia | Oct 31, 2016 | 793 S.E.2d 357
...Fulton County Superior Court alleging that CashCall, Inc. (“CashCall”), Delbert Services Corporation (“Delbert Services”), Western Sky Financial, LLC (“Western Sky”), and Martin A. Webb (collectively “Defendants”) have violated OCGA §
16-17-2 (a) by engaging in a small-dollar lending enterprise *341that collects illegal usurious interest from Georgia borrowers....
...was not barred by the language of OCGA §
16-17-1 (d) indicating that “[pjayday lending . . . does not encompass loans that involve interstate commerce.” Instead, the trial court found the State’s claim against Defendants was proper under OCGA §
16-17-2 (a), which states: “It shall be unlawful for any person to engage in any business [which involves] ....
...is how we refer to it here. Clearly, the Act applies not only to what is commonly referred to as payday lending,5 but to any business that involves the lending of amounts of $3,000 or less unless the loan falls within the exceptions set forth in OCGA§
16-17-2 (a), none of which apply in this case....
...nd to strengthen the penalties for those engaging in such activities.
OCGA §
16-17-1 (e). The plain language of this subsection makes clear that the definition of “payday lending” is not intended to limit the scope of the chapter. Further, OCGA §
16-17-2 (a) specifically outlaws the making of loans prohibited by the Act by use of the “mail, electronic means, the Internet, or telephonic means ....
...he Sherman Act to apply to residential mortgage lending by the defendants).
Because of federal preemption rules limiting a state’s authority to regulate federally chartered banks or banks chartered by other states, the Act exempts such banks (OCGA§
16-17-2 (a) (3)), but does not exempt out-of-state non-bank lenders, such as the lenders in this case....
...e decisions are based applies with as much force to public as to private statutes. The legislature has no power to bind the courts by recitals of facts in a public statute . . . Mitchell v. Lasseter,
114 Ga. 280 (40 SE 287) (1901). We note that OCGA §
16-17-2 (c) (2) attempts to make an arbitration clause in a payday loan contract unenforceable if the contract is unconscionable....
...First, Defendants assert the Payday Lending Act confers no authority for the State to obtain injunctive relief. While the Act does not expressly authorize injunctive relief, we view *350the language of the Act as contemplating such relief. Pursuant to OCGA§
16-17-3, any person who violates OCGA §
16-17-2 (a) or (b) is “barred from the collection of any in debtedn ess created by [an illegal] loan transaction” and any such illegal loan shall be deemed void ab initio....
...(Emphasis supplied.) OCGA §
16-17-3 also establishes that any offending lender shall be “liable to the borrower in each unlawful transaction for three times the amount of any interest or other charges to the borrower.” Pursuant to subsection (a) of OCGA §
16-17-4, any person who violates OCGA §
16-17-2 (a) or (b) shall be liable to the State for a civil penalty equal to three times the amount of any interest or charges to the borrowers in such transactions....
...We do not interpret sections 3 and 4 of the Act as creating separate remedial schemes whereby the right to seek an order barring collections of illegal loans is available only in actions pursued by borrowers. Indeed, OCGA §
16-17-4 (b) authorizes the filing of a civil action pursuant to OCGA §
16-17-2 by either the Attorney General, any district attorney, or a private party Defendants point to no reason why the remedy of a judgment barring collection of any indebtedness created by an illegal loan transaction and declaring such a transac...
...By contrast, statutes that confer rights upon the general public do not come within the twenty-year limitation of OCGA §
9-3-22. Id. at 152 (2). By its terms, the Payday Lending Act grants a right of action to individuals or a class of individuals. “A civil action under Code Section
16-17-2 maybe brought on behalf of an individual borrower or on behalf of an ascertainable class of borrowers.” OCGA§
16-17-3. The Code section permitting the State to recover a civil penalty in an action filed under OCGA §
16-17-2 permits the Attorney General, any district attorney, or a private party to pursue those rights....
...holding unforeseeably expands the scope of the Act and violates due process considerations by applying an unforeseen and retroactive judicial expansion of statutory language. But we are unpersuaded by this argument because the plain language of OCGA §
16-17-2 (a) prohibits the making of loans of $3,000 or less through “the Internet,” thus providing Defendants notice that their Internet-based, small-dollar lending enterprise was unlawful under the Act....
CopyCited 7 times | Published | Supreme Court of Georgia | Oct 22, 2018 | 304 Ga. 574
...ce cash services and other similar activities" and to "reiterate" that those activities were already unlawful in Georgia. OCGA §
16-17-1 (e). Like the Industrial Loan Act, the Payday Lending Act governs "the making of loans of $3,000 or less," OCGA §
16-17-2 (a), and it generally prohibits "any person to engage in any business, in whatever form transacted, ......
...which consists in whole or in part of making, offering, arranging, or acting as an agent in the making of loans of $3,000.00 or less" subject to several enumerated exemptions. OCGA §
16-17-1 (a). Among the exemptions are loans authorized by the Industrial Loan Act or various other banking and financing statutes. See OCGA §
16-17-2 (a) (1)-(2). Also exempted are loans made by certain banks, OCGA §
16-17-2 (a) (3), and tax refund anticipation loans. OCGA §
16-17-2 (a) (4).
While the Payday Lending Act governs "the making of loans of $3,000 or less," it does not expressly define the term "loan." But it implicitly gives meaning to that term by its provision that it "shall apply with respect to all transactions in which funds are advanced to be repaid at a later date," OCGA §
16-17-2 (b), a provision that is most reasonably understood to contemplate an agreement that imposes an obligation to repay....
...The law intends that a search for usury shall penetrate to the substance.") See also OCGA §
16-17-1 (c) ("The General Assembly has determined that various payday lenders have created certain schemes and methods in order to attempt to disguise these transactions."); OCGA §
16-17-2 (b) (3) (providing that the Payday Lending Act shall apply notwithstanding that the transaction includes "[a]ny other element introduced to disguise the true nature of the transaction as an extension of credit").
But this case-at least based on the pleadings to this point-presents no such claim....
CopyCited 4 times | Published | Supreme Court of Georgia | May 14, 2007 | 282 Ga. 27
...Gen., Sidney R. Barrett, Jr., Asst. Atty. Gen., amicus appellant. HUNSTEIN, Presiding Justice. Appellants Nathaniel Glenn and John Dunlap challenged the constitutionality of OCGA §
16-17-1 et seq. ("the Act"), after they were charged with violating OCGA §
16-17-2, which prohibits the making of "payday loans," i.e., loans of $3,000 or less with illegal interest rates. [1] See USA Payday Cash Advance Centers v. Oxendine,
262 Ga.App. 632, 633,
585 S.E.2d 924 (2003) ("`payday loan is a loan of short duration, typically two weeks, at an astronomical annual interest rate'"). First time violators of OCGA §
16-17-2 are guilty of a misdemeanor of a high and aggravated nature. Id. at (d). Appellants were both convicted of multiple violations of OCGA §
16-17-2 [2] and they appeal, contending that the trial court erred by rejecting their equal protection and vagueness challenges to the Act. For the reasons that follow, we affirm. 1. Appellants contend that OCGA §
16-17-2 denies them equal protection of the law because it grants explicit exemptions to out-of-state banks that make payday loans in Georgia [3] and the local agents of such out-of-state banks, when operating under certain defined financial circu...
...ks accorded the different treatment. See Farley v. State,
272 Ga. 432, 433,
531 S.E.2d 100 (2000). Appellants cannot make that showing. We agree with the State that appellants are not similarly situated with the out-of-state banks designated in OCGA §
16-17-2(a)(3) because appellants, as in-state lenders, are subject to Georgia statutes regulating or restricting high interest rates on loans, whereas the out-of-state banks are not....
...elationship' test when [as here] neither a suspect class nor a fundamental right is affected by the challenged statute. [Cit.]" Love v. State,
271 Ga. 398, 400(1),
517 S.E.2d 53 (1999). Under that test, the legislative classification created by OCGA §
16-17-2(a) can withstand constitutional *828 assault when the classification is based on rational distinctions and bears a direct and real relation to the legitimate object or purpose of the legislation....
...We find the Act's prohibition against payday loans, in whatever form transacted, sufficiently definite to satisfy due process standards. [6] 3. The evidence adduced at the bench trial amply authorized the trial court to find beyond a reasonable doubt that appellants were guilty of violating OCGA §
16-17-2(a). Jackson v. Virginia,
443 U.S. 307,
99 S.Ct. 2781,
61 L.Ed.2d 560 (1979). Judgments affirmed. All the Justices concur. NOTES [1] OCGA §
16-17-2(a) provides that it is "unlawful for any person to engage in any business, in whatever form transacted, . . . which consists in whole or in part of making, offering, arranging, or acting as an agent in the making of loans of $3,000.00 or less," unless the loans are otherwise permitted or lawful under one of the exceptions set forth in OCGA §
16-17-2(a)(1)-(4). [2] Appellant Glenn was charged with 49 misdemeanor violations of OCGA §
16-17-2; appellant Dunlap was charged with 46 such violations....
...ench trial, found appellants guilty on all counts and sentenced them to 15 years probation on the felony RICO count and twelve months probation (concurrent to the RICO charge but consecutive to each other) on each illegal payday loan count. [3] OCGA §
16-17-2(a)(3) exempts a bank or thrift chartered under the laws of the United States, a bank chartered under the laws of another state and insured by the Federal Deposit Insurance Corporation, or a credit card bank [when the enumerated entity] is not operating in violation of the federal and state laws applicable to its charter. [4] Entities exempt under OCGA §
16-17-2(a)(3) may legally make payday loans in Georgia through a local agent provided that the agent is not the "de facto" lender, as established where "the entire circumstances of the transaction show that the purported agent holds, acquires, or maintains a predominant economic interest in the revenues generated by the loan." OCGA §
16-17-2(b)(4). [5] Hence, the Legislature authorized trial courts in OCGA §
16-17-6 to review transactions "in their entirety in order to determine if there has been any contrivance, device, or scheme used by the lender" to avoid OCGA §
16-17-2(a)....
CopyPublished | Supreme Court of Georgia | Oct 22, 2018
...and other similar activities” and
to “reiterate” that those activities were already unlawful in Georgia. OCGA
§
16-17-1 (e). Like the Industrial Loan Act, the Payday Lending Act governs
“the making of loans of $3,000.00 or less,” OCGA §
16-17-2 (a), and it
generally prohibits “any person to engage in any business, in whatever form
transacted, ....
...or acting as an agent in the making of loans of $3,000.00 or less” subject to
several enumerated exemptions. OCGA §
16-17-1 (a). Among the exemptions
are loans authorized by the Industrial Loan Act or various other banking and
financing statutes. See OCGA §
16-17-2 (a) (1), (2). Also exempted are loans
made by certain banks, OCGA §
16-17-2 (a) (3), and tax refund anticipation
loans. OCGA §
16-17-2 (a) (4).
While the Payday Lending Act governs “the making of loans of $3,000.00
or less,” it does not expressly define the term “loan.” But it implicitly gives
meaning to that term by its provision that it “shall apply with respect to all
transactions in which funds are advanced to be repaid at a later date,” OCGA
§
16-17-2 (b), a provision that is most reasonably understood to contemplate an
11
agreement that imposes an obligation to repay....
...The law intends that a search for
usury shall penetrate to the substance.”) See also OCGA §
16-17-1 (c) (“The
General Assembly has determined that various payday lenders have created
certain schemes and methods in order to attempt to disguise these
transactions[.]”); OCGA §
16-17-2 (b) (3) (providing that the Payday Lending
Act shall apply notwithstanding that the transaction includes “[a]ny other
element introduced to disguise the true nature of the transaction as an extension
of credit”).
But this case — at least based on the pleadings to this point — presents
no such claim....
