Georgia Supreme Court Holds Corporations May Not Be Directly or Vicariously Liable Under Law Limiting Notary Fees

The Supreme Court of Georgia recently held that a statute limiting fees for providing notarial services applies to notaries public, but does not apply directly or vicariously to corporations employing notaries public. Anthony v. American General Financial Services, Inc., 2010 WL 2553586, No. S10Q0203 (Ga. June 28, 2010). The plaintiffs sought to recover a $350.00 notary fee charged by the defendant lender to refinance a mortgage loan that allegedly exceeded the statutory maximum permitted by OCGA § 45-17-11(b). The court first found that corporations employing notaries public are not directly liable under the statute because the relevant statutory text makes it "clear that consumers were directly protected against ‘notary publics,’ not anyone else[,]" and also because "a corporation cannot serve as a notary public." The court next found that a corporation may not be held vicariously liable for the acts of a notary public employed by the corporation because a notary acting in his or her official capacity is a public officer, and the private employer has no control over the performance of his or her notarial duties. The court did find, however, that a corporation may be held liable where it "procures or otherwise qualifies as a party to or participant in such a violation by a[] notary." Other holdings by the court were that (i) a private civil cause of action does not arise under OCGA § 45-17-11 against a corporation employing notaries public to recover notarial fees paid in excess of, and without notice of, the statutorily-prescribed maximum notary fee, (ii) recovery under a breach of contract claim for notarial fees paid in excess of, and without notice of, the statutorily-prescribed maximum notary fee when the actual fee charged was clearly specified in the contract as being "reasonable and necessary" is not barred by the voluntary payment doctrine, and (iii) the statutes of limitations on claims of fraud and on claims of money had and received are not tolled when notarial fees are collected in excess of, and without notice of, the statutorily-prescribed maximum notary fee when the actual fee charged was clearly specified in the contract as being "reasonable and necessary."