USA CASH ADVANCE CENTERS, et al. v. OXENDINE.
Court of Appeals of Georgia.
*925 Troutman Sanders, William M. Droze, David M. Green, Atlanta, for appellants.
Thurbert E. Baker, Atty. Gen., Sidney R. Barrett, Jr., Isaac Byrd, Sr. Asst. Attys. Gen., Samantha M. Rein, Asst. Atty. Gen., for appellee.
In July 2002, the Commissioner authorized an study of the “payday loan” tasks of USA payday advances Advance Centers. As a consequence of the assessment, an administrative “show cause” order released, and also the plaintiffs had been one of the events called when you look at the order. Following the hearing on October 11, 2002, the Commissioner discovered that the plaintiffs had been in breach of this Industrial Loan Act to make loans lacking any loan that is industrial plus in making false and misleading adverts of loans; the Commissioner commanded them to stop and desist from making loans “except as permitted beneath the Georgia Industrial Loan Act.” Plaintiffs had been asking a yearly rate of interest of 650 %. On October 22, 2002, the superior court denied plaintiffs’ selling point of your order. On December 2, 2002, plaintiffs dismissed that appeal.
On December 3, 2002, plaintiffs filed this declaratory judgment action and alleged which they no more made the loans but that, as “companies” for County Bank, the loans were now produced by County Bank through them. November 13, 2002, ended up being the date that is effective such start up business procedure to begin with. Plaintiffs advertised an exemption through the Georgia Industrial Loan behave as agents for the bank that is out-of-state. But, such provider contract, which was alleged within the verified pleadings, had been 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’ start up business arrangement with County Bank, since the Commissioner had no information about this new arrangement and loans together with taken no place in regards to the procedure that is new.
The Commissioner relocated for summary judgment regarding the grounds that no “actual or justiciable debate” existed pertaining to plaintiffs’ brand new arrangement with County Bank and therefore there was indeed no ruling desired on plaintiffs’ brand brand new arrangement because of the Commissioner pursuant to their laws allowing demands for declaratory rulings. Consequently, plaintiffs neglected to exhaust their administrative treatments ahead of searching for action that is judicial.
So as to circumvent state usury rules, some payday loan providers have contracted with federally chartered banking institutions or state chartered banks insured by the FDIC to benefit from federal banking regulations that enable such banks to help make loans across state lines without reference to that state’s interest and *927 usury legislation in “rent-a-charter” or “rent-a-bank” contracts. See Colorado v. Ace Money Express, 188 F. Supp. 2d 1282, 1285-1286 (D.Colo.2002); Long v. Ace money Express, 2001 WL 34106904, 2001 U.S. Dist. LEXIS 24617 (M.D.Fla.2001); Goleta Nat. Bank v. Lingerfelt, 211 F. Supp. 2d 711 (E.D.N.C. 2002). Whether it has took place this situation and if it is legitimate or even a subterfuge that is mere to circumvent Georgia usury legislation can’t be reached in cases like this, as the plaintiffs failed to exhaust administrative treatments and also to place the contract with County Bank into proof.
Beneath the separation of abilities beneath the Georgia Constitution, the judicial branch does not have jurisdiction to cope with an executive branch function until there is an fatigue of administrative treatments, i.e., the executive branch does not have any further remedy. The particular legislative empowerment for judicial overview of executive action is strictly followed. Perkins v. Dept. of Med. Assistance, 252 Ga.App. 35, 36-38(1), 555 S.E.2d 500 (2001). The explanation is the fact that “resort into the process that is administrative enable the agency to use its expertise, protect the agency’s autonomy, enable an even more efficient quality, and end up in the consistent application of issues inside the agency’s jurisdiction.” Cerulean Cos. v. Tiller, 271 Ga. 65, 67(1), 516 S.E.2d 522 (1999). A plaintiff “is forbidden 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 Med. Assistance, supra at 38, 555 S.E.2d 500.
Long-standing Georgia legislation calls for that an event aggrieved by a situation agency’s choice must raise all dilemmas before that agency and payday loan alternative Tennessee exhaust available administrative treatments before looking for any review that is judicial of agency’s choice. Provided that there was a very good and available remedy that is administrative a celebration is needed to pursue that treatment before looking for equitable relief in superior court.
Cerulean Cos. v. Tiller, supra at 66(1), 516 S.E.2d 522. Consequently,
[a]n action for declaratory judgment will never be amused in which the liberties regarding the events have previously accrued therefore the plaintiff faces no threat of using future undirected action. Where a statute provides an event with an easy method of review by the agency that is administrative such procedure is normally a satisfactory remedy at legislation to be able to preclude the grant of equitable relief.