[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 30, 2010
No. 08-15983
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-00095-CV-JTC-3
TERRY ANTHONY,
SARAH K. ANTHONY, individually
and on behalf of a class of
similarly situated persons,
Plaintiffs-Appellants,
versus
AMERICAN GENERAL FINANCIAL SERVICES, INC.,
formerly known as American General Finance, Inc.,
AMERICAN GENERAL FINANCIAL SERVICES, INC., (DE),
formerly known as American General Finance, Inc.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 30, 2010)
Before EDMONDSON, Circuit Judge, and HODGES,* District Judge.1
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., 697 S.E. 2d 166 (Ga.
2010) (“Anthony II”). 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
*
Wm. Terrell Hodges, United States District Judge for the Middle District of Florida,
sitting by designation.
1
This opinion is being entered by quorum pursuant to 28 U.S.C. § 46(d).
2
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 45-17-11(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
2
For additional background, see Anthony I, 583 F.3d at 1304-05.
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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).
Given 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, 129 S. Ct. 1937, 1949 (2009).
Although we must accept all factual allegations in the complaint as true, we need
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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, 647 S.E. 2d 54, 58 (Ga. 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
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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, 683 S.E. 2d 336, 341 n.21 (Ga. Ct.
App. 2009), and a claim for “money had and received,” see OCGA § 9-3-25;
Baghdady v. Cent. Life Ins. Co., 480 S.E. 2d 221, 224 n.1 (Ga. Ct. App. 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
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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., 507 S.E. 2d 467, 470 (Ga. 1998). Even assuming, for argument’s
sake, that American General’s conduct constituted actual fraud, the Georgia
Supreme Court declined to allow equitable tolling in the Anthonys’ circumstance:
the Anthonys could have discovered the discrepancy between the notary fee statute
and the actual fee charged at any time by “simple reference” to the notary fee
statute. Anthony II at 176.
So, the district court did not err by dismissing the Anthonys’ fraud and
“money had and received” claims as filed outside the statute of limitations.
C. Breach of Contract Claim
Last, the Anthonys appeal the district court’s dismissal of their breach of
contract claim. The Anthonys contend that, because American General charged
$350 for notary fees in violation of OCGA section 45-17-11’s maximum fee and
notification provisions, American General breached the Loan Agreement provision
stating that notary fees would be “reasonable and necessary.” The district court
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concluded that, regardless of whether a breach occurred, Georgia’s voluntary
payment statute, § 13-1-13, barred recovery.3
But in the light of the Georgia Supreme Court’s response to a certified
question, we must vacate this claim’s dismissal. The Georgia Supreme Court
noted that American General possessed an express and affirmative statutory duty to
disclose the maximum statutory notary fee of $4.00, see OCGA § 45-17-11(d), and
instead “expressly and affirmatively misrepresented that the $350.00 notary fee
imposed was ‘reasonable and necessary.’” Anthony II at 175. Given that “unusual
combination,” the Georgia Supreme Court concluded that the Anthonys had
alleged sufficient “artifice, deception, or fraudulent practice,” OCGA § 13-1-13, to
trigger the exception in Georgia’s voluntary payment statute. Therefore, the statute
does not bar the Anthonys’ claim at the motion to dismiss stage. Anthony II at
175.
We see no other bar to the Anthonys’ contract claim at the motion to dismiss
stage. Written contract claims have a six-year statute of limitations under Georgia
law, see OCGA § 9-3-24; the Anthonys commenced their lawsuit within that
window.
3
Section 13-1-13 states, in relevant part: “Payments of claims made through ignorance of
the law or where all the facts are known and there is no misplaced confidence and no artifice,
deception, or fraudulent practice used by the other party are deemed voluntary and cannot be
recovered.”
8
Responding to one of our questions, the Georgia Supreme Court concluded
that a corporation employing notaries public, as opposed to an individual notary
public, was neither directly nor vicariously subject to section 45-17-11. See
Anthony II at 168 (“[C]onsumers were directly protected [by section 45-17-11]
against ‘notary public[s],’ not anyone else. And it is also clear that a corporation
cannot serve as a notary public.”); id. at 169-70 (concluding that a corporation is
not vicariously liable to a notary-public employee). Still, the Georgia Supreme
Court declared that a corporation could be liable for a notary public’s violation of
the notary fee statute “if [the corporation] participates in or procures the notary’s
violations.” Id. at 170. The Court relied both on a state statute, see id. (citing
OCGA section 51-12-30, allowing civil liability for a person who “maliciously
procures an injury” as a “joint wrongdoer”) (internal quotation marks omitted), and
state common law, see id. at 171.
If American General had no duty to abide by the requirements of the notary
fee statute, it is an open question about how pertinent a violation of that statute can
be to the Anthonys’ contract-claim argument. The district court has yet to decide
whether American General “participate[d] in or procure[d]” the notary public’s
violations of section 45-17-11, and this determination might affect the Anthonys’
action. We leave those questions for the district court to address and merely
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conclude now that the Anthonys have stated a contract claim.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s order dismissing the
section 45-17-11 and fraud and “money had and received” claims for failure to
state a claim, vacate the district court’s order dismissing the contract claim, and
remand the case to the district court for proceedings consistent with this opinion.
AFFIRMED in part, VACATED in part, and REMANDED.
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