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

O.C.G.A. § 7-3-29 (2019)

Criminal penalties; void loans; civil penalty to borrower for violation; violation not subject of class action; defense of good faith; limitation on remedies for voidness.

✓ 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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Any person who shall make loans under this chapter without first obtaining a license or who shall make a false statement under oath in an application for a license under this chapter or who shall do business while the license of such person under this chapter is suspended or revoked shall be guilty of a misdemeanor; and any contract made under this chapter by such person shall be null and void. Except as otherwise provided in this chapter, any duly licensed lender who fails to comply with this chapter in connection with a loan under this chapter shall be liable to the borrower or borrowers thereon for a single penalty in an amount equal to twice the amount of all interest and loan fees charged said borrower or borrowers on the most recent loan made by the lender to said borrower or borrowers; provided, however, that the liability under this subsection shall not be less than $100.00. A lender duly licensed under this chapter has no liability under subsection (b) of this Code section if, within 15 days after discovering an error or violation and prior to the institution of an action under this Code section or the receipt of written notice of the error or violation, the lender notifies the person concerned of the error or violation and makes whatever adjustments in the appropriate account are necessary to ensure that such person will not be required to pay charges in excess of those permitted by this chapter. A lender may not be held liable in any action brought under this Code section for a violation of this chapter if the lender shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide clerical or typographical error notwithstanding the maintenance of procedures reasonably adopted to avoid any such error. A claim of violation of this chapter against a duly licensed lender may be asserted in an individual action only and may not be the subject of a class action under Code Section 9-11-23 or any other provision of law. A claim of violation of this chapter against an unlicensed lender may be asserted in a class action under Code Section 9-11-23 or any other provision of law. If a contract is made in good faith in conformity with an interpretation of this chapter by the appellate courts of this state or in a rule or regulation officially promulgated by the Commissioner after public hearings, no provision in this Code section imposing any penalty shall apply, notwithstanding that, after such contract is made, such rule or regulation is amended, rescinded, or determined by judicial or other authority to be invalid for any reason. Any lender duly licensed under this chapter who shall knowingly and willfully with intent to defraud a borrower make a contract in violation of this chapter shall be guilty of a misdemeanor, and the contract so made shall be null and void. No person may, more than one year after April 9, 1980, assert or contend offensively or defensively in any court that a contract predating April 9, 1980, is null and void or is illegal, void, invalid, or not good consideration for a renewal or refinanced contract. This subsection is a statute of repose and limitation, barring such remedies, and only such remedies, as of that date; provided, however, that after that date a borrower or borrowers on a contract predating April 9, 1980, shall be entitled to the appropriate penalty provided under subsections (a) through (g) of this Code section, but such right to said penalty shall not in any way adversely affect the validity of any renewal or refinanced contract.

History

(Ga. L. 1904, p. 79, § 14; Ga. L. 1920, p. 215, §§ 13, 17, 18; Code 1933, §§ 25-217, 25-313, 25-317, 25-9902; Ga. L. 1935, p. 394, § 2; Ga. L. 1955, p. 431, § 20; Ga. L. 1978, p. 1033, § 1; Ga. L. 1980, p. 1784, §§ 1, 2; Ga. L. 1989, p. 14, § 7; Ga. L. 2004, p. 60, § 1.)

Notes of Decisions
Cited in 14 cases, 1984–2019 · leading case: Brown v. Assocs. Fin. Servs. Corp., 333 S.E.2d 888 (Ga. Ct. App. 1985).
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Brown v. Assocs. Fin. Servs. Corp., 333 S.E.2d 888 (Ga. Ct. App. 1985). · cites it 8× “OCGA § 7-3-29 (f), however, provides for a good faith defense if "a contract is made in good faith in conformity with an interpretation of this chapter by the appellate courts of this state or in a rule or regulation officially promulgated by the commissioner after public…”
Aetna Fin. Co. v. Brown, 323 S.E.2d 720 (Ga. Ct. App. 1984). · cites it 10× “86 pursuant to OCGA § 7-3-29 (b).” Defendant answered, denying the material allegations of plaintiffs’ complaint and raising the defense of good faith compliance “with the Industrial Loan Act, the appellate court interpretations of that Act, and the Rules and Regulations…”
Bankwest, Inc. v. Baker, 324 F. Supp. 2d 1333 (N.D. Ga. 2004). · cites it 3× “The Act also amends the existing Georgia Industrial Loan Act, O.C.G.A. § 7-3-29, to permit class actions against unlicensed lenders, and Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, O.”
Ruth v. Cherokee Funding, LLC, 820 S.E.2d 704 (Ga. 2018). · cites it 2× “Pursuant to OCGA § 7-3-29 (a), "[a]ny person who shall make loans under [the Industrial Loan Act] without first obtaining a license .”
Stevens v. Thomas, 361 S.E.2d 800 (Ga. 1987). · cites it 2× “434 ( 241 SE2d 282 ) (1977), and the provision of OCGA § 7-3-29 (e) that violations of the Georgia Industrial Loan Act must be asserted in individual actions.”
Williams Gen. Corp. v. Stone, 632 S.E.2d 376 (Ga. 2006). · cites it 2× “, OCGA § 7-3-29 (providing a private cause of action for violations of the Georgia Industrial Loan Act), OCGA § 16-8-86 (providing a private cause of action for violations of the Georgia Motor Vehicle Chop Shops and Stolen and Altered Property Act), OCGA § 16-9-93 (g) (providing…”
Lizzie Davis v. Oasis Legal Fin. Operating Co., LLC, 936 F.3d 1174 (11th Cir. 2019). “5 B The plaintiffs argue, and the district court concluded, that the class action waivers contained in the loan agreements also contravene the purpose of the PLA and the Georgia Industrial Loan Act, O.C.G.A. § 7-3-29. We start with the text of both acts.”
Ford Motor Credit Co. v. London, 332 S.E.2d 345 (Ga. Ct. App. 1985). · cites it 2× “, OCGA § 7-3-29 (e), as to the Georgia Industrial Loan Act.”
Ward v. Hudco Loan Co., 328 S.E.2d 729 (Ga. 1985). · cites it 2× “1033, 1034 (OCGA § 7-3-29 (f)) providing the lender with a good-faith defense to violations of the Industrial Loan Act.”
Transamerica Fin. Corp. v. Superior Court, 746 P.2d 497 (Ariz. Ct. App. 1988). “Code § 5—18—15[h] (1975); Ga.Code Ann. § 7-3-29 (1982); Miss.Code Ann.”
Harlow v. Walton Loan Corp., 329 S.E.2d 616 (Ga. Ct. App. 1985). · cites it 22× “The burden of showing a violation of the Georgia Industrial Loan Act is an affirmative one for the party asserting it. . . . [citations omitted.”
Jenkins v. Com. Credit Plan, Inc., 419 S.E.2d 484 (Ga. Ct. App. 1992). · cites it 6× “After stating “it is bad enough that this court has to make a result oriented decision” and that “it is even worse when the court is so disingenuous about its precedent,” appellant asserts inter alia this court has “cavalierly [found] a clerical error” and, that “if the court is…”
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