Lending AgreementsвЂ™ Out-of-State Forum Selection Clauses and Class Action Waivers Violate Georgia Public Policy We Blog 11thCircuitBusinessBlog
Loan providers had been banned from enforcing out-of-state forum selection clauses and class action waivers in loan agreements because such conditions violate GeorgiaвЂ™s general general public policy, the Eleventh Circuit held in Davis v. Oasis Legal Finance working Co., 2019 WL 4051592 (11th Cir. Aug. 28, 2019). A course of borrowers whom joined into identical loan agreements sued their loan providers, alleging that the agreements violated GeorgiaвЂ™s Payday Lending Act, O.C.G.A. 16-17-1 et seq., Industrial Loan Act, O.C.G.A. 7-3-1 et seq., and usury legislation, O.C.G.A. 7-4-18. Lenders relocated to dismiss the problem and hit the borrowersвЂ™ class allegations, arguing that the mortgage agreementsвЂ™ forum selection clauses needed the borrowers to sue them in Illinois and therefore the course action waivers banned a course action. Siding with all the borrowers, the region court denied the lendersвЂ™ motions, keeping that both clauses violated GeorgiaвЂ™s general public policy and had been unenforceable.
On interlocutory appeal plus in a viewpoint by Judge Adalberto Jordan, the Eleventh Circuit affirmed. When it comes to forum selection clause, the court reasoned that based on Georgia Supreme Court precedent, the Payday Lending Act establishes a clear public policy that prohibits loan providers from utilizing out-of-state forum selection clauses: the Act expressly bars loan providers from designating a court when it comes to quality of disputes вЂњother compared to a court of competent jurisdiction in and also for the county where the debtor resides or even the loan office is located.вЂќ Further, the statute describes that lenders had utilized forum selection clauses to prevent Georgia courts and that вЂњthe General Assembly has determined that such techniques are unconscionable and really should be forbidden.вЂќ
Lenders argued that the Payday Lending Act could possibly be interpreted to allow non-Georgia forum selection clauses as the Act failed to require disputes to specifically be introduced a Georgia county
it just provided disputes should be solved in a вЂњcounty where the borrower resides or even the mortgage workplace is found.вЂќ (emphasis included). The court disposed for this argument, reasoning that Georgia location conditions usually utilize the general term вЂњcountyвЂќ whenever discussing Georgia counties. And also the lendersвЂ™ argument made sense that is little from the ActвЂ™s clear prohibition on out-of-state forum selection clauses.
The court also rejected the lendersвЂ™ argument that the Payday Lending Act does not apply to loans by out-of-state lenders for several reasons. First, the Georgia Supreme Court has refused this argument. 2nd, the statute broadly is applicable toвЂњany continuing businessвЂќ that вЂњconsists in entire or perhaps in section of making . . . loans of $3,000.00 or less.вЂќ 3rd, if this argument held water, it might render the ActвЂ™s prohibition on out-of-state forum selection clauses meaningless.
Then, the court addressed the course action waiver. It consented with all the region courtвЂ™s summary that the Georgia Legislature designed to protect course actions as a fix against payday lendersвЂ”both statutes expressly allow course actions. Enforcing the course action waiver would undermine the point and character of GeorgiaвЂ™s scheme that is statutory. This, alone, had been enough to make the course action waiver unenforceable under Georgia legislation.
So as to persuade the court otherwise, lenders pointed to prior Eleventh Circuit casesвЂ”Jenkins v. First American Cash Advance of Georgia, LLC, 400 F.3d 868 (11th Cir. 2005), and Bowen v. First Family Financial Services, Inc., 233 F.3d https://tennesseetitleloans.org/ 1331 (11th Cir. 2000)вЂ”which held that class action waivers in arbitration clauses are not void as against general general public policy. The court had not been convinced, emphasizing that Jenkins and Bowen involved class action waivers in arbitration agreements. Therefore, the Federal Arbitration Act used and created a good policy that is federal benefit of arbitration. Furthermore, Supreme Court precedent establishes that area 2 of this Federal Arbitration Act overrides state statute or common-law doctrine that efforts to undercut the enforceability of a arbitration contract. Because an arbitration contract had not been at problem right right here, the court explained, Jenkins and Bowen are distinguishable together with Federal Arbitration Act doesn’t use.