SB 157 - Payday Lending; deferred presentment or advance cash services; regulate unlawful transactions
(1) Cheeks,Don 23rd (2) Cagle,Casey 49th (3) Starr,Terrell 44th
(4) Stephens,Bill 51st
SC: B&FI HC: B&B 05/05/04 - Senate Date Signed by Governor

First Reader Summary

A BILL to be entitled an Act to amend Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, so as to declare a legislative intent to prohibit activities commonly referred to as payday lending, deferred presentment services, or advance cash services and other similar activities; to provide that it shall be unlawful to engage in the business of making certain small loans; to provide for exemption for licensed and regulated activities; to define crimes and declare penalties; to provide for civil remedies of borrowers; to provide for civil penalties; to provide for collection of civil penalties in actions by the state or by private parties on behalf of the state; to provide for taxation of proceeds received; to provide for related matters; to repeal conflicting laws; and for other purposes.

Code Titles Referenced in this Legislation.

Title16 / Title18 / Title7, / Title10 / Title44

Electronically Recorded Votes
Date Time Vote No Yeas Nays NV Exc Description
2/12/04 01:49 PM House V0675 033 116 025 006 TABLE
2/12/04 01:52 PM House V0676 092 080 002 006 Massey, Sailor amend
2/12/04 01:54 PM House V0677 053 115 006 006 Roberts #1
2/12/04 01:55 PM House V0678 038 132 004 006 Roberts #2
2/12/04 02:01 PM House V0679 063 109 002 006 Ehrhart, Coan
2/12/04 02:08 PM House V0680 078 095 001 006 Ehrhart, Sailor
2/12/04 02:11 PM House V0681 085 086 003 006 Massey amend recon
2/12/04 02:13 PM House V0682 047 121 006 006 Lewis, Greene
2/12/04 02:15 PM House V0683 069 101 004 006 Lewis amend
2/12/04 02:16 PM House V0684 064 103 007 006 Sailor, Sheldon
2/12/04 02:22 PM House V0685 087 082 005 006 Ehrhart, Floyd
2/12/04 02:23 PM House V0686 077 091 006 006 Ehrhart, Floyd recon
2/12/04 02:25 PM House V0687 069 100 005 006 Sailor, Sheldon recon
2/12/04 02:26 PM House V0688 150 020 004 006 PASS
2/24/04 11:42 AM House V0758 078 092 006 004 Agree Sen am to H sub
3/04/04 12:23 PM House V0830 132 038 009 001 Adopt CCR

Bill History
Date Action
02/18/03Senate Read and Referred
03/24/03Senate Committee Favorably Reported
03/25/03Senate Read Second Time
04/07/03Senate Passed/Adopted
04/07/03House First Readers
04/07/03Senate Third Read
04/08/03House Second Readers
02/05/04House Committee Favorably Reported
02/12/04House Third Readers
02/12/04House Third Readers
02/12/04House Passed/Adopted
02/17/04Senate Agrees House Amend or Sub
02/24/04House Disagrees Senate Amend/Sub
02/25/04Senate Insists
02/26/04House Insists
02/26/04Senate Conference Committee Appointed
02/26/04House Insists
02/26/04House Conference Committee Appointed
03/04/04Senate Conference Committee Report Adopted
03/04/04House Conference Committee Report Adopted
04/09/04Act 440
04/09/04Senate Sent to Governor
04/14/04Senate Date Signed by Governor
05/05/04Senate Sent to Governor
05/05/04Senate Date Signed by Governor

Versions
LC 34 0056S/hss
SB 157/HCSFA
Floor amend AM 14 06
Floor amend AM 34 00
CCR to SB157
AP
As introduced LC 14
Committee sub LC 14
Floor amend 1
As passed Senate

Footnotes

2/17/04 Senate agrees to House substitute as amended by the Senate.

FULL TEXT

SB157.html
04 SB157/AP

Senate Bill 157
By: Senators Cheeks of the 23rd, Cagle of the 49th, Stephens of the 51st and Starr of the 44th
AS PASSED
AN ACT

To amend Code Section 7-3-29 of the Official Code of Georgia Annotated, relating to penalties for violations of the "Georgia Industrial Loan Act," so as to allow class actions to be brought against unlicensed lenders; to amend Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, so as to include payday lending in the definition of racketeering activity; to declare a legislative intent to prohibit activities commonly referred to as payday lending, deferred presentment services, or advance cash services and other similar activities; to strengthen and increase the criminal and civil penalties therefor; to void payday lending loans; to declare that forum selection clauses in payday lending contracts are unenforceable in Georgia; to provide that it shall be unlawful to engage in the business of making certain small loans; to provide for exemptions for licensed and regulated activities; to define crimes and declare penalties; to provide for civil remedies of borrowers; to provide for civil penalties; to provide for collection of civil penalties in actions by the state or by private parties; to declare a tax on profits from payday loans; to declare sites or locations on which payday lending is taking place to be public nuisances; to provide disclosure and notice requirements regarding loans made to members of the military; to provide for severability; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.
Code Section 7-3-29 of the Official Code of Georgia Annotated, relating to penalties for violations of the "Georgia Industrial Loan Act," is amended by striking subsection (e) and inserting in its place the following:
"(e) 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."

SECTION 2.
Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, is amended in Code Section 16-14-3, relating to definitions concerning racketeer influenced organizations, by striking divisions (9)(A)(xxxvi) and (9)(A)(xxxvii) and inserting in lieu thereof the following:
"(xxxvi) Article 8 of Chapter 9 of this title, relating to identity fraud, and Section 1028 of Title 18 of the United States Code, relating to fraudulent identification documents and information;
(xxxvii) Code Section 33-1-9, relating to insurance fraud; or
(xxxviii) Code Section 16-17-2, relating to payday loans."

SECTION 3.
Said title is further amended by adding a new Chapter 17 to read as follows:

"CHAPTER 17

16-17-1.
(a) Without limiting in any manner the scope of this chapter, 'payday lending' as used in this chapter encompasses all transactions in which funds are advanced to be repaid at a later date, notwithstanding the fact that the transaction contains one or more other elements and a 'payday lender' shall be one who engages in such transactions. This definition of 'payday lending' expressly incorporates the exceptions and examples contained in subsections (a) and (b) of Code Section 16-17-2.
(b) Despite the fact that the Attorney General of the State of Georgia has opined in Official Opinion 2002-3 entered on June 27, 2002, that payday lending is in violation of Georgia law and despite the fact that the Industrial Loan Commissioner has issued cease and desist orders against various payday lenders in the State of Georgia, the General Assembly has determined that payday lending continues in the State of Georgia and that there are not sufficient deterrents in the State of Georgia to cause this illegal activity to cease.
(c) The General Assembly has determined that various payday lenders have created certain schemes and methods in order to attempt to disguise these transactions or to cause these transactions to appear to be 'loans' made by a national or state bank chartered in another state in which this type of lending is unregulated, even though the majority of the revenues in this lending method are paid to the payday lender. The General Assembly has further determined that payday lending, despite the illegality of such activity, continues to grow in the State of Georgia and is having an adverse effect upon military personnel, the elderly, the economically disadvantaged, and other citizens of the State of Georgia. The General Assembly has further determined that substantial criminal and civil penalties over and above those currently existing under state law are necessary in order to prohibit this activity in the State of Georgia and to cause the cessation of this activity once and for all. The General Assembly further declares that these types of loans are currently illegal and are in violation of Code Section 7-4-2. The General Assembly declares that the use of agency or partnership agreements between in-state entities and out-of-state banks, whereby the in-state agent holds a predominant economic interest in the revenues generated by payday loans made to Georgia residents, is a scheme or contrivance by which the agent seeks to circumvent Chapter 3 of Title 7, the 'Georgia Industrial Loan Act,' and the usury statutes of this state.
(d) Payday lending involves relatively small loans and does not encompass loans that involve interstate commerce and certain payday lenders have attempted to use forum selection clauses contained in payday loan documents in order to avoid the courts of the State of Georgia, and the General Assembly has determined that such practices are unconscionable and should be prohibited.
(e) Without limiting in any manner the scope of this chapter, the General Assembly declares that it is the general intent of this chapter to reiterate that in the State of Georgia the practice of engaging in activities commonly referred to as payday lending, deferred presentment services, or advance cash services and other similar activities are currently illegal and to strengthen the penalties for those engaging in such activities.
(f) This chapter in no way impairs or restricts the authority granted to the commissioner of banking and finance, the Industrial Loan Commissioner, or any other regulatory authority with concurrent jurisdiction over the matters stated in this chapter.

16-17-2.
(a) It shall be unlawful for any person to engage in any business, in whatever form transacted, including, but not limited to, by mail, electronic, the Internet, or telephonic means, which consists in whole or in part of making, offering, arranging, or acting as an agent in the making of loans of $3,000.00 or less unless:
(1) Such person is engaging in financial transactions permitted pursuant to:
(A) The laws regulating financial institutions as defined under Chapter 1 of Title 7, the 'Financial Institutions Code of Georgia';
(B) The laws regulating state and federally chartered credit unions;
(C) Article 13 of Chapter 1 of Title 7, relating to Georgia residential mortgages;
(D) Chapter 3 of Title 7, the 'Georgia Industrial Loan Act';
(E) Chapter 4 of Title 7, relating to interest and usury;
(F) Chapter 5 of Title 7, 'The Credit Card and Credit Card Bank Act,' including financial institutions and their assignees who are not operating in violation of said chapter; or
(G) Paragraph (2) of subsection (a) of Code Section 7-4-2 in which the simple interest rate is not greater than 16 percent per annum;
(2) Such loans are lawful under the terms of:
(A) Article 1 of Chapter 1 of Title 10, 'The Retail Installment and Home Solicitation Sales Act';
(B) Article 2 of Chapter 1 of Title 10, the 'Motor Vehicle Sales Finance Act'; or
(C) Part 5 of Article 3 of Chapter 12 of Title 44, relating to pawnbrokers;
(3) Subject to the provisions of paragraph (4) of subsection (b) of this Code section, such person is a bank or thrift chartered under the laws of the United States, a bank chartered under the laws of another state and insured by the Federal Deposit Insurance Corporation, or a credit card bank and is not operating in violation of the federal and state laws applicable to its charter; or
(4) Such loan is made as a tax refund anticipation loan. In order to be exempt under this paragraph the tax refund anticipation loan must be issued using a borrower´s filed tax return and the loan cannot be for more than the amount of the borrower´s anticipated tax refund. Tax returns that are prepared but not filed with the proper government agency will not qualify for a loan exemption under this paragraph.
(b) Subject to the exceptions in subsection (a) of this Code section, this Code section shall apply with respect to all transactions in which funds are advanced to be repaid at a later date, notwithstanding the fact that the transaction contains one or more other elements. Without limiting the generality of the foregoing, the advance of funds to be repaid at a later date shall be subject to this Code section, notwithstanding the fact that the transaction also involves:
(1) The cashing or deferred presentment of a check or other instrument;
(2) The selling or providing of an item, service, or commodity incidental to the advance of funds;
(3) Any other element introduced to disguise the true nature of the transaction as an extension of credit; or
(4) Any arrangement by which a de facto lender purports to act as the agent for an exempt entity. A purported agent shall be considered a de facto lender if the entire circumstances of the transaction show that the purported agent holds, acquires, or maintains a predominant economic interest in the revenues generated by the loan.
(c)(1) A payday lender shall not include in any loan contract made with a resident of this state any provision by which the laws of a state other than Georgia shall govern the terms and enforcement of the contract, nor shall the loan contract designate a court for the resolution of disputes concerning the contract other than a court of competent jurisdiction in and for the county in which the borrower resides or the loan office is located.
(2) An arbitration clause in a payday loan contract shall not be enforceable if the contract is unconscionable. In determining whether the contract is unconscionable, the court shall consider the circumstances of the transaction as a whole, including but not limited to:
(A) The relative bargaining power of the parties;
(B) Whether arbitration would be prohibitively expensive to the borrower in view of the amounts in controversy;
(C) Whether the contract restricts or excludes damages or remedies that would be available to the borrower in court, including the right to participate in a class action;
(D) Whether the arbitration would take place outside the county in which the loan office is located or any other place that would be unduly inconvenient or expensive in view of the amounts in controversy; and
(E) Any other circumstance that might render the contract oppressive.
(d) Any person who violates subsection (a) or (b) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature and upon conviction thereof shall be punished by imprisonment for not more than one year or by a fine not to exceed $5,000.00 or both. Each loan transaction shall be deemed a separate violation of this Code section. Any person who aids or abets such a violation, including any arbiter or arbitration company, shall likewise be guilty of a misdemeanor of a high and aggravated nature and shall be punished as set forth in this subsection. If a person has been convicted of violations of subsection (a) or (b) of this Code section on three prior occasions, then all subsequent convictions shall be considered felonies punishable by a fine of $10,000.00 or five years imprisonment or both.

16-17-3.
Any person who violates subsection (a) or (b) of Code Section 16-17-2 shall be barred from the collection of any indebtedness created by said loan transaction and said transaction shall be void ab initio, and any person violating the provisions of subsection (a) or (b) of Code Section 16-17-2 shall in addition be liable to the borrower in each unlawful transaction for three times the amount of any interest or other charges to the borrower. A civil action under Code Section 16-17-2 may be brought on behalf of an individual borrower or on behalf of an ascertainable class of borrowers. In a successful action to enforce the provisions of this chapter, a court shall award a borrower, or class of borrowers, costs including reasonable attorneys´ fees.

16-17-4.
(a) Any person who violates subsection (a) or (b) of Code Section 16-17-2 shall be liable to the state for a civil penalty equal to three times the amount of any interest or charges to the borrowers in the unlawful transactions.
(b) A civil action under Code Section 16-17-2 may be brought by the Attorney General, any district attorney, or a private party. Where a successful civil action is brought by a district attorney one-half of the damages recovered on behalf of the state shall be distributed to the office of the district attorney of the judicial circuit of such district attorney to be used by the district attorney in order to fund the budget of that office.

16-17-5.
(a) There is imposed a state tax on all loans made in violation of this chapter. Such tax shall be administered and collected in connection with the Georgia income taxation of the person making such loans and shall be in addition to any other tax liability of such person.
(b) The tax imposed by this Code section shall be at the rate of 50 percent of all proceeds received by a person from loans made in violation of this chapter.
(c) A person making loans in violation of this chapter shall declare and return the proceeds subject to taxation under this Code section as a part of such person´s Georgia income tax return.
(d) The state revenue commissioner shall retain returns under this Code section apart from all other returns and shall not disclose any part of such a return for any purpose other than the collection of tax owed or a criminal prosecution involving tax matters. In a criminal proceeding under this chapter, a person´s return of proceeds under this Code section and any evidence derived as a result of such return shall not be admissible.



16-17-6.
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.

16-17-7.
All corporations, limited liability companies, or other business entities which are engaged in payday lending in the State of Georgia are prohibited from obtaining any certificate of authority from the Secretary of State or from the Department of Banking and Finance and engaging in such payday lending activity in the State of Georgia shall result in the revocation of any existing certificate of authority.

16-17-8.
The site or location of a place of business where payday lending takes place in the State of Georgia is declared a public nuisance.



16-17-9.
(a) In addition to the other obligations and duties required under this chapter, if the customer is a member of the military services of the United States or a spouse of a member of the military services of the United States, the following duties and obligations apply to any payday lender:
(1) The lender is prohibited from garnishment of any military wages or salaries;
(2) The lender is prohibited from conducting any collection activity against a military customer or his or her spouse when the military member has been deployed to a combat or combat support posting for the duration of the deployment;
(3) The lender is prohibited from contacting the commanding officer of a military customer in an effort to collect on a loan to the military member or his or her spouse;
(4) The lender agrees to be bound by the terms of any repayment agreement that it negotiates through military counselors or third-party credit counselors; and
(5) The lender agrees to honor any statement or proclamation by a military base commander that a specific payday lender branch location has been declared off limits to military personnel and their spouses.
(b) If the customer is a member of the military services of the United States or a spouse of a member of the military services of the United States, the following disclosures shall be made in writing by the payday lender:
(1) A notice that the lender is prohibited from garnishment of any military wages or salaries;
(2) A notice that the lender is prohibited from conducting any collection activity against a military customer or his or her spouse when the military member has been deployed to a combat or combat support posting for the duration of the deployment;
(3) A notice that the lender is prohibited from contacting the commanding officer of a military customer in an effort to collect on a loan to the military member or his or her spouse;
(4) A notice that the lender agrees to be bound by the terms of any repayment agreement that it negotiates through military counselors or third-party credit counselors; and
(5) A notice that the lender agrees to honor any statement or proclamation by a military base commander that a specific payday lending branch location has been declared off limits to military personnel and their spouses.



16-17-10.
If any provision of this chapter or the application of such provision is found by a court of competent jurisdiction in the United States to be invalid or is found to be superseded by federal law, then the remaining provisions of this chapter shall not be affected, and this chapter shall continue to apply to any other person or circumstance."

SECTION 4.
This Act shall become effective on May 1, 2004.

SECTION 5.
All laws and parts of laws in conflict with this Act are repealed.
Georgia General Assembly
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