DECIDED: AUGUST 1, 2003
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 Cash Advance, Inc., Great American Credit, Inc., Monday `Til Payday, Inc., United States Of America Payday Advance pay day installment loans, 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 provided because of the test court for Oxendine. Finding no mistake, we affirm.
In July of 2002, the Commissioner authorized a study of the “payday loan” tasks of USA Payday Advance Centers. As a consequence of the assessment, an administrative “show cause” order given, additionally the plaintiffs had been among the list of parties called when you look at the purchase. Following the hearing on October 11, 2002, the Commissioner unearthed that the plaintiffs had been in breach regarding the Industrial Loan Act in creating loans with no commercial loan license 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 a annual rate of interest of 650%. On October 22, 2002, the superior court denied plaintiffs’ benefit of your order. On December 2, 2002, plaintiffs dismissed that appeal.
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, had been the effective date for such start up business procedure to start. Plaintiffs stated 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 into the verified pleadings, ended up being never put in proof.
During the time that the declaratory judgment action ended up being brought, the Commissioner hadn’t determined whether or otherwise not to open up a study into plaintiffs’ home based business arrangement with County Bank, since the Commissioner had no information about the latest arrangement and loans and had taken no position in regards to the procedure that is new.
The Commissioner moved for summary judgment in the grounds that no “actual or justiciable debate” existed pertaining to plaintiffs’ brand brand new arrangement with County Bank and that there was indeed no ruling desired on plaintiffs’ brand new arrangement by the Commissioner pursuant to his laws allowing needs for declaratory rulings. Consequently, plaintiffs neglected to exhaust its administrative remedies just before searching for 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. “that loan that is payday that loan of quick timeframe, typically a couple of weeks, at an astronomical yearly interest rate. ” Smith v. Steinkamp, 318 F. 3d 775, 776-777 (7th Cir. 2003). Payday advances are the present 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 INTERNET SEARCH ENGINE 78) (1930). The costs, costs, and interest on an online payday loan are between 15% and 30% associated with 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 had been enacted to “define and stop usury” and to give a supply of regulated funds “for people who was indeed borrowing at usurious prices from loan sharks, road shylocks and wagebuyers, ” then such transactions that are financial inside 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 is finished the restriction set by OCGA § 7-3-14 of 10% or even the lender 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.
So that they can circumvent state usury guidelines, some payday lenders have actually contracted with federally chartered banks or state chartered banks insured by the FDIC to make the most of federal banking laws and regulations that enable such banking institutions in order to make loans across state lines without reference to that state’s interest and usury legislation in “rent-a-charter” or “rent-a-bank” contracts. See State of Colorado ex rel. Salazar v. ACE money Express, Inc., 188 F. Supp. 2d 1282, 1285-1286 (D. Colo. 2002); 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 instance and whether it’s genuine or a subterfuge that is mere to circumvent Georgia usury legislation can’t be reached in cases like this, as the plaintiffs neglected to exhaust administrative treatments 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 particular legislative empowerment for judicial writeup 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 into the administrative process will enable the agency to utilize its expertise, protect the agency’s autonomy, enable a far more efficient quality, and end in 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 its 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 a celebration aggrieved by a situation agency’s choice must raise all dilemmas before that agency and exhaust available administrative treatments before looking for any review that is judicial of agency’s decision. So long as there clearly was a fruitful and available administrative treatment, a celebration is needed to pursue that remedy before searching for equitable relief in superior court.
Cerulean Co., Inc. V. Tiller, supra at p. 66. Subsequently,
An action for declaratory judgment will never be amused where in actuality the legal rights associated with the events have previously accrued while the plaintiff faces no threat of using future undirected action. In which a statute provides a celebration with a way of review by the agency that is administrative such procedure is typically a sufficient remedy at legislation to be able to preclude the grant of equitable relief.