O.C.G.A.
O.C.G.A.

O.C.G.A. § 16-17-6 (2019)

Evidence and investigation in pursuit of prosecutions

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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In regard to any loan transaction that is alleged to be in violation of subsection (a) of Code Section 16-17-2, the trial court shall be authorized to review the terms of the transaction in their entirety in order to determine if there has been any contrivance, device, or scheme used by the lender in order to avoid the provisions of subsection (a) of Code Section 16-17-2. The trial court shall not be bound in making such determination by the parol evidence rule or by any written contract but shall be authorized to determine exactly whether the loan transaction includes the use of a scheme, device, or contrivance and whether in reality the loan is in violation of the provisions of subsection (a) of Code Section 16-17-2 based upon the facts and evidence relating to that transaction and similar transactions being made in the State of Georgia. If any entity involved in soliciting or facilitating the making of payday loans purports to be acting as an agent of a bank or thrift, then the court shall be authorized to determine whether the entity claiming to act as agent is in fact the lender. Such entity shall be presumed to be the lender if, under the totality of the circumstances, it holds, acquires, or maintains a predominant economic interest in the revenues generated by the loan. Furthermore, the trial court shall further be authorized to investigate all transactions involving gift cards, telephone cards, the sale of goods or services, computer services, or the like which may be tied to such loan transactions and are an integral part thereof in order to determine whether any such transaction is in fact a contrivance, scheme, or device used by the payday lender in order to evade the provisions of subsection (a) of Code Section 16-17-2.

History

Code 1981, § 16-17-6, enacted by Ga. L. 2004, p. 60, § 3.

Annotations

JUDICIAL DECISIONS Sale/leaseback transactions deemed illegal payday loans. - Sale/leaseback transactions engaged in by consumer cash advance businesses violated the anti-payday lending statute, O.C.G.A. § 16-17-1 et seq., and the Georgia Industrial Loan Act, O.C.G.A. § 7-3-1 et seq., since the state proved that the purported lease back of personal

property to the consumer was not based on the actual appraised market value of the personal property but directly corresponded to the loan amount; the state proved that the businesses were requiring customers to be released from the loan agreement by paying the principal amount advanced to the customers plus a 25 to 27 percent fee,

which amounted to an annual percentage rate of 650 to 702 percent. Clay v. Oxendine, 285 Ga. App. 50, 645 S.E.2d

553, 2007 Ga. App. LEXIS 356 (2007), cert. denied, No. S07C1247, 2007 Ga. LEXIS 556 (Ga. July 12, 2007).

Notes of Decisions
Cited in 6 cases, 2004–2014 · leading case: Bankwest, Inc. v. Baker, 324 F. Supp. 2d 1333 (N.D. Ga. 2004).
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Bankwest, Inc. v. Baker, 324 F. Supp. 2d 1333 (N.D. Ga. 2004). · cites it 4× “” 6 O.C.G.A. § 16-17-6. The Act also provides that “[a]n arbitration clause in a payday loan contract shall not be enforceable if the contract is unconscionable.”
Clay v. Oxendine, 645 S.E.2d 553 (Ga. Ct. App. 2007). · cites it 2× “OCGA § 16-17-6. Payday loans under $3,000 are further regulated by GILA, OCGA § 7-3-1 et seq.”
Georgia Cash Am., Inc. v. Greene, 734 S.E.2d 67 (Ga. Ct. App. 2012). · cites it 2× “But under OCGA § 16-17-6, the trial court shall be authorized to review the terms of the transaction in their entirety in order to determine if there has been any contrivance, device, or scheme used by the lender in order to avoid the provisions of subsection (a) of Code Section…”
Glenn v. State, 644 S.E.2d 826 (Ga. 2007). · cites it 2× “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).”
Davis v. State, 754 S.E.2d 815 (Ga. Ct. App. 2014). · cites it 2× “OCGA § 16-17-6 (“The trial court shall not be bound in making such determination by the parol evidence rule or by any written contract but shall be authorized to determine exactly whether the loan transaction includes the use of a scheme, device, or contrivance and whether in…”
Georgia Cash Am., Inc. v. James Greene (Ga. Ct. App. 2012). · cites it 2× “But under OCGA § 16-17-6, 20 the trial court shall be authorized to review the terms of the transaction in their entirety in order to determine if there has been any contrivance, device, or scheme used by the lender in order to avoid the provisions of subsection (a) of Code…”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.