Anthony v. AMERICAN GEN. FINANCIAL SERVICES, INC.
Court of Appeals for the Eleventh Circuit · 2010-11-30
The case involved borrowers Terry and Sarah Anthony who sued American General Financial Services for charging notary fees exceeding the $4 statutory maximum under OCGA section 45-17-11 when processing mortgage documents. The Anthonys asserted claims for a private right of action under the notary fee statute, breach of contract (alleging the fees were not reasonable and necessary), fraud, and money had and received. After certifying questions to the Georgia Supreme Court, the Eleventh Circuit affirmed dismissal of the statutory, fraud, and money had and received claims because Georgia law provides no private cause of action under the statute and the limitations period barred the others. The court vacated dismissal of the contract claim, however, because the voluntary payment doctrine did not apply at the pleading stage and the complaint sufficiently alleged that the lender participated in or procured violations of the fee cap.