Anthony v. American General Financial Services, Inc.

626 F.3d 1318, 2010 U.S. App. LEXIS 24446
CourtCourt of Appeals for the Eleventh Circuit
DecidedNovember 30, 2010
DocketNo. 08-15983
StatusPublished
Cited by2 cases

This text of 626 F.3d 1318 (Anthony v. American General Financial Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anthony v. American General Financial Services, Inc., 626 F.3d 1318, 2010 U.S. App. LEXIS 24446 (11th Cir. 2010).

Opinion

PER CURIAM:

The question is whether a debtor may sue to recover notary fees charged by a creditor in excess of the statutory maximum established by OCGA section 45-17-11(b). The case returns to us after we certified questions to the Georgia Supreme Court. See Anthony v. Am. Gen. Fin. Servs., Inc., 583 F.3d 1302, 1307 (11th Cir. 2009) (“Anthony I”); Anthony v. Am. Gen. Fin. Servs., Inc., 287 Ga. 448, 697 S.E.2d 166 (2010) (“Anthony IF). Based on the Georgia Supreme Court’s responses to those questions, we conclude that, except for the contract claim, the Anthonys’ complaint failed to state a claim upon which relief may be granted; therefore, we affirm in part, vacate in part, and remand the case to the district court.

I. BACKGROUND

Appellants Terry and Sarah Anthony (“the Anthonys”), on behalf of themselves and a putative class, challenged Respondent American General Financial Services’s (“American General”) assessment of mortgage notary fees that exceeded the statutory maximum set by OCGA section 45-17-ll(b). The Anthonys asserted three claims: (1) section 45-17-11, which sets the maximum fee a notary may charge for each notarial service at $4 and requires disclosure of the fee before performing the service, creates a private civil cause of action to recover fees paid in excess of the statutory cap; (2) by charging a notary fee in excess of the statutory maximum, American General breached its Loan Agreement contract with the Anthonys because an illegal fee is not “reasonable and necessary”; and (3) charging an illegal fee gives rise to fraud and “money had and received” claims.2

On appeal from the district court’s dismissal with prejudice per Rule 12(b)(6) of all of the claims, we were unable to determine with certainty whether Georgia law allowed a private suit seeking redress for these claims. So, we certified questions to the Georgia Supreme Court, asking them to help us to understand certain state-law issues of civil liability in the light of OCGA section 45-17-11. See Anthony I, 583 F.3d at 1307 (listing four certified questions).

The Georgia Supreme Court kindly consented to the certification and provided answers to our four questions. First, the Court concluded that no private civil cause of action — either express or implied— arises under OCGA section 45-17-11. Anthony II at 171, 175. Second, the Court concluded that the voluntary payment doctrine cannot bar a breach of contract claim under these particular circumstances. Id. at 175. Third, the Court concluded that the statute of limitations was not tolled for the Anthonys’ fraud and “money had and received” claims. Id. Fourth, the Court concluded that, while a corporation may not be directly or vicariously liable for violating OCGA section 45-17-11, it may be liable “if it participates in or procures the notary’s violations.” Anthony II at 170 (emphasis in original).

[1321]*1321Given the Georgia Supreme Court’s explanation of Georgia law, we turn now to rule on each of the Anthonys’ claims.

II. DISCUSSION

“We review de novo the district court’s grant of a motion to dismiss under Rule 12(b)(6).” Redland Co., Inc. v. Bank of Am. Corp., 568 F.3d 1232, 1234 (11th Cir. 2009). To withstand a motion to dismiss, a complaint must state a “plausible” claim for relief. Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937,1949,173 L.Ed.2d 868 (2009). Although we must accept all factual allegations in the complaint as true, we need not apply this rule to legal conclusions. Id.

A Notary Fee Statute Claim

The Anthonys argue that the district court erred in concluding that the notary fee statute, OCGA § 45-17-11, provides no private civil cause of action.

The notary fee statute plainly provides no express private civil cause of action. But whether an implied private civil cause of action may arise from the violation of a penal statute depends on whether “‘the legislature has indicated a strong public policy for imposing a civil as well as criminal penalty for violation of a penal statute.’ ” Murphy v. Bajjani, 282 Ga. 197, 647 S.E.2d 54, 58 (2007). In its certified-question responses, the Georgia Supreme Court explained that courts must glean the legislature’s intention to provide an implied cause of action not from considering the public policy that the statute “generally appears to advance” but by looking “in the provisions of the statute.” Anthony II at 172. As applied here, the Georgia Supreme Court concluded that “there is absolutely ‘nothing in the provisions of § 45-17-11 that shows that the Legislature meant to authorize such civil actions.” Anthony II at 173 (internal citation omitted).

Georgia’s Supreme Court has declared that “a private civil cause of action may not be implied to remedy a violation of OCGA § 45-17-11.” Anthony II at 175. The district court, thus, properly dismissed the Anthonys’ private civil claim under the notary fee statute.

B. Fraud and “Money Had and Received” Claims

The Anthonys also argued that the district court erred in dismissing, on statute of limitations grounds, their fraud and “money had and received” claims. Georgia law provides a four-year statute of limitations on both a claim for fraud, see OCGA § 9-3-31; McKesson Corp. v. Green, 299 GaApp. 91, 683 S.E.2d 336, 341 n. 21 (2009), and a claim for “money had and received,” see OCGA § 9-3-25; Baghdady v. Cent. Life Ins. Co., 224 GaApp. 170, 480 S.E.2d 221, 224 n. 1 (1996). The statute of limitations for a fraud claim begins running when the plaintiff discovers the fraud. See OCGA § 9-3-96.

Here, more than five years passed from the time the Anthonys signed the Loan Agreement at issue to the time they brought suit. Nevertheless, the Anthonys argue that equitable tolling should apply 1) because American General committed fraud by contracting for “reasonable and necessary” notary fees but actually charging notary fees far exceeding the statutory maximum and 2) because American General failed to disclose the statutory maximum to the Anthonys.

For tolling to apply, the fraud “must be such actual fraud as could not have been discovered by the exercise of ordinary diligence.” Bahadori v. Nat’l Union Fire Ins. Co., 270 Ga.

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626 F.3d 1318, 2010 U.S. App. LEXIS 24446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anthony-v-american-general-financial-services-inc-ca11-2010.