When Bradley and Lori Schorr named plaintiffs financed the purchase of their home in Georgia, they executed a security deed which was subsequently assigned to Countrywide Home Loans, Inc. Upon full repayment of the underlying loan in 2003, the named plaintiffs demanded in writing that Countrywide cancel the security deed pursuant to OCGA § 44-14-3. The version of that statute which was in effect at the time, prior to its amendment in 2008, provided in relevant part that, upon the failure of the grantee or holder of a security deed or other instrument to transmit properly a legally sufficient satisfaction or cancellation as provided in this Code section, the grantee or holder shall, upon written demand, be liable to the grantor for the sum of $500.00 as liquidated damages and, in addition thereto, for such additional sums for any loss caused to the grantor plus reasonable attorney’s fees. . . . The grantee or holder shall not be liable to the grantor unless and until a written demand for the liquidated damages is made. No other provision of this Code section shall be construed so as to affect the obligation of the grantee or holder to pay the liquidated damages provided for in this subsection. Former OCGA § 44-14-3 c Ga. L. 1999, pp. 862, 865, § 2. Compare current OCGA § 44-14-3 c Ga. L. 2008, pp. 352, 353, § 1. When Countrywide allegedly failed to cancel the security deed within the 60-day period set forth in former OCGA § 44-14-3 b 1, the named plaintiffs made a written demand for $500 in liquidated damages. Upon Countrywide’s failure to pay such liquidated damages, the named plaintiffs filed a class action in the United States District Court for the Middle District of Georgia on behalf of Countrywide customers whose security deeds had not been cancelled as required by former OCGA § 44-14-3. Countrywide filed a motion to dismiss the claims of putative class members on the ground that the complaint failed to allege that they had individually made written demands for liquidated damages. The district court certified the following question to this Court: Whether named plaintiffs in a class action may, pursuant to OCGA § 44-14-3, satisfy the pre-suit written demand requirement for liquidated damages on behalf of putative class action members by the named plaintiffs’ satisfaction of the written demand requirement. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. IV; OCGA § 15-2-9 a; Supreme Court Rules 46-48.
The district court correctly noted that we have already determined that exhaustion of administrative remedies by named plaintiffs satisfies that pre-suit requirement for all class members. Barnes v. City of Atlanta , 281 Ga. 256, 257 1 637 SE2d 4 2006 Barnes II . The particular pre-litigation requirement involved in Barnes II was the demand for a tax refund contemplated by OCGA § 48-5-380. Like that statute, former OCGA § 44-14-3 does not “provide for the form of action to be utilized. By participating as a plaintiff in a class action that includes a claim for liquidated damages, a grantor of a security deed is unquestionably bringing an action for liquidated damages, which is what the statute permits.” Cits. Thus, any such grantor whom the named plaintiffs represent and who does not ultimately opt out of the class action is considered to have brought suit for liquidated damages at the same time as the named plaintiffs. Barnes II , supra. As a result, the named plaintiffs in this case are generally permitted to act as representatives on behalf of the entire class of grantors. Barnes II , supra at 258 1.
