Propriety of Dismissal of Class Action Challenging Notary Fees Charged by Lender in Connection with Refinance of Home Loan that were in Excess of Maximum Allowed by Georgia State Law Turned on Issues not yet Clearly Resolved by Georgia Courts Eleventh Circuit Holds, thereby Warranting Certification of Questions to Georgia Supreme Court
Plaintiff filed a putative class action against American General Financial Services, with whom they had refinanced their home loan, alleging violations of various Georgia-state laws; each of the claims in the class action complaint were premised on a charge for notarial fees allegedly “in excess of the statutory maximum established by OCGA § 45-17-11(b).” Anthony v. American General Financial Services, Inc., 583 F.3d 1302, 1304 (11th Cir. 2009). According to the allegations underlying the class action complaint, plaintiffs “executed a standard loan agreement specifying certain fees that they must pay as part of the transaction, including a $350.00 ‘notary fee,’” which the loan documents stated were “reasonable and necessary.” Id. American General did not disclose that under OCGA § 45-17-11, the maximum permissible notarial fee is $4.00. Id. Plaintiffs paid the $350 notary fee, and their class action complaint followed. Id. Defense attorneys moved to dismiss the class action complaint, id. The district court granted the motion finding (1) a private right of action does not exist under OCGA § 45-17-11, (2) Georgia’s “voluntary payment statute,” see OCGA § 13-1-13 (2002), barred the contract claims, and (3) the four-year statute of limitations barred other claims. Id. On appeal, the Eleventh Circuit expressed “doubt [as to] the correct application of state law in this case,” id.; accordingly, the Circuit Court certified those questions to the Georgia Supreme Court.
The Eleventh Circuit explained that “[t]he Supreme Court of Georgia may review a question of law certified by this Court when it is ‘determinative of the case’ and there are ‘no clear controlling precedents in the decisions of the Supreme Court.’” Anthony, at 1305 (citing OCGA § 15-2-9(a)). Because the Circuit Court found “no clear controlling precedent” as to several issues dispositive of the appeal, the Court certified the following questions to the Georgia Supreme Court:
(1) Is a corporation employing notaries public to help facilitate its lending practices: A) subject directly to section 45-17-11; or B) vicariously liable for violations of section 45-17-11 by its notary employees?
(2) If a corporation employing notaries public is subject to section 45-17-11, does a private civil cause of action arise under that section to recover notarial fees paid in excess of, and without notice of, the statutorily prescribed maximum notary fee?
(3) If a corporation employing notaries public is subject to section 45-17-11, does the voluntary payment statute, section 13-1-13, bar contract recovery for notarial fees paid in excess of, and without notice of, the statutorily prescribed maximum notary fee when the actual fee charged was clearly specified in the contract and the contract represents that the fees are “reasonable and necessary?”
(4) If a corporation employing notaries public is subject to section 45-17-11, is the statute of limitations tolled on fraud and money had and received claims when notarial fees are collected in excess of, and without providing the required notice of, the statutorily prescribed maximum notary fee when the contract represents that the fees are “reasonable and necessary?”
See Anthony, at 1307.