Georgia Supreme Court Holds Litigation Advances Are Not “Loans” Under State Usury Laws

Balch & Bingham LLP
Contact

Georgia regulates the small loan industry with usury laws like the Payday Lending Act and Industrial Loan Act. But, as the Georgia Supreme Court recently held, these Acts can reach only as far as their texts allow.

In Ruth v. Cherokee Funding, LLC, the Georgia Supreme Court held money advanced by a litigation finance company is not a “loan” under either the PLA or the ILA where the litigant’s obligation to repay depends on the success of her lawsuit. The opinion comes in a state class action suit against litigation finance companies that advanced money to the plaintiffs while their personal injury lawsuits were pending. Under the financing agreements their attorney executed, the plaintiffs were required to repay the funds (plus various fees and interest at an annualized rate of 59.88%) only if they recovered proceeds from their lawsuits. When the litigation finance companies sought to recover the amounts owed under the agreements, the plaintiffs sued alleging, among other things, the agreements violated the PLA and ILA.

On cross appeals, the Georgia Court of Appeals concluded neither Act applied to the challenged transactions, saying they were not “loans,” but merely “investment contracts” due to their uncertain and contingent repayment obligations.

The Georgia Supreme Court agreed. Both Acts apply to “loans,” which as defined must involve an unqualified obligation to repay. However, the Georgia Supreme Court found the financing agreements “involve[] . . . a contingent and limited obligation of repayment”—if the plaintiffs recovered nothing in their lawsuits, they were not obligated to repay. The agreements, therefore, constitute neither a “contract requiring repayment” nor an agreement by which “funds are advanced to be repaid” to meet the Acts’ definitions of a loan.

Depending on the language of their laws, other states may view—and have viewed—litigation financing agreements differently. Litigation finance companies should carefully review a state’s usury laws and relevant court decisions to ensure their business practices comply with them.

The Georgia Supreme Court’s opinion can be found here.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Balch & Bingham LLP | Attorney Advertising

Written by:

Balch & Bingham LLP
Contact
more
less

Balch & Bingham LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.