                              THIRD DIVISION
                                 RICKMAN,
                           GOBEIL and COOMER, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                     March 6, 2019




In the Court of Appeals of Georgia
 A18A1519. SUNTRUST BANK v. BICKERSTAFF

      GOBEIL, Judge.

      In 2010, Jeff Bickerstaff, Jr.,1 a customer of SunTrust Bank (“SunTrust”), filed

a complaint against SunTrust on behalf of himself and all others similarly situated

asserting that SunTrust’s overdraft fees constitute unlawful interest charges and

raising claims for violation of Georgia’s civil and criminal usury laws (OCGA

§§ 7-4-2 and 7-4-18, respectively), money had and received, and conversion. This is

the third appearance of this case before this Court. In the instant appeal, SunTrust

challenges the Superior Court of Fulton County’s order holding SunTrust’s class-

action litigation waiver unconscionable and granting Bickerstaff’s motion for class


      1
        Jeff Bickerstaff passed away during the ongoing litigation, and the Executor
of his Estate, Ellen Bickerstaff, was substituted as the named plaintiff.
certification, pursuant to OCGA § 9-11-23. SunTrust argues that the trial court erred

in (1) finding the class-action waiver unconscionable, and (2) granting class

certification. For the reasons that follow, we affirm.

                        Background and Procedural History

      Like many banking institutions, SunTrust provides an automated overdraft

program that allows an account holder’s ATM or debit card transaction to be

approved even if the approved amount exceeds the account holder’s available

balance. In other words, the customer has insufficient funds to cover the transaction

and SunTrust advances the customer the necessary funds to cover the transaction, but,

in return, charges the customer a flat fee per overdraft transaction. During the relevant

time period, SunTrust charged a flat overdraft fee of $32 or $36 per overdraft

transaction. In the complaint, Bickerstaff alleged that, on multiple occasions,

SunTrust “advance[d] money to Plaintiff in amounts less than $3,000 and collected

Overdraft Fees from Plaintiff in connection with each such advance.” He maintained

that SunTrust’s overdraft fees in fact constitute interest charged by SunTrust for the

use of the money SunTrust advanced/loaned account holders to cover overdrafts on

their accounts, and that the rate of interest grossly exceeded the rate allowed under

Georgia’s usury laws.

                                           2
      The record reveals that, in 2009, when Bickerstaff opened his account with

SunTrust, he, like all SunTrust customers, signed a document acknowledging receipt

of SunTrust’s Rules and Regulations for Deposit Accounts – an approximately

40-page, single-spaced, fine-print booklet (“the Rules and Regulations”) – and

agreeing to be bound by the Rules and Regulations. In relevant part, in an

introductory section preceding the table of contents, the Rules and Regulations

included a provision that “[a] determination that any part of this agreement is invalid

or unenforceable will not affect the remainder of this agreement.” On page 22 of the

booklet, the Rules and Regulations included a mandatory arbitration provision, which

provided as follows:

      DISPUTE RESOLUTION


      READ THIS PROVISION CAREFULLY AS IT WILL HAVE A
      SUBSTANTIAL IMPACT ON HOW LEGAL CLAIMS YOU AND WE
      HAVE AGAINST EACH OTHER ARE RESOLVED. For a Claim
      subject to arbitration, neither the Depositor nor the Bank will have the
      right to: (1) have a court or a jury decide the Claim; (2) engage in
      information-gathering (discovery) to the same extent as in court;
      (3) participate in a class action in court or in arbitration; or (4) join or
      consolidate a Claim with claims of any other person. The right to appeal
      is more limited in arbitration than in court and other rights in court may
      be unavailable or limited in arbitration.

                                           3
      ARBITRATION. Notwithstanding any other provision in these rules and
      regulations, if either Depositor or the Bank has any unresolvable
      dispute, controversy or claim . . . whether founded in contract, tort,
      statutory or common law, concerning, arising out of or relating to the
      Account or these rules and regulations . . . upon the demand of either
      party, it will be resolved by individual (not class or class-wide) binding
      arbitration[.]


Additionally, on page 24, the Rules and Regulations contained a jury trial waiver

provision, which provided as follows:

      JURY TRIAL WAIVER. FOR ANY MATTERS NOT SUBMITTED
      TO    ARBITRATION,          DEPOSITOR        AND     BANK      HEREBY
      KNOWINGLY,          VOLUNTARILY,           INTENTIONALLY            AND
      IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
      RESPECT TO ANY LITIGATION BASED HEREON OR ARISING
      OUT OF THESE RULES AND REGULATIONS, RELATING TO THE
      ACCOUNT, OR ANY OTHER DISPUTE OR CONTROVERSY
      BETWEEN YOU AND US. FURTHER, DEPOSITOR AND BANK
      HEREBY AGREE THAT ANY LITIGATION WILL PROCEED ON AN
      INDIVIDUAL BASIS AND WILL NOT PROCEED AS PART OF A
      CLASS ACTION.


(emphasis supplied). The final sentence of the above paragraph is at issue in this case

and is hereinafter referred to as the “class-action waiver.”



                                          4
      After Bickerstaff filed the underlying complaint, SunTrust revised its Rules and

Regulations and provided customers with the ability to opt out of arbitration.

SunTrust moved to compel arbitration in the underlying case, which the trial court

denied, finding that Bickerstaff effectively exercised his right to opt out of arbitration

by filing the instant complaint.2

      Subsequently, SunTrust entered into an agreed upon stipulation related to class

certification, stipulating to the following:

      1. SunTrust maintains documents and/or data sufficient to identify the
      following information related to individual consumer deposit accounts
      in which an ATM card or debit card transaction caused an overdraft of
      the account (“Overdraft”) during the putative class period of July 12,
      2006, to July 2010 (“Class Period”) and for which an overdraft fee
      and/or an extended overdraft fee was charged to the account (together,
      “Overdraft Fee”):


             a. the individual customer’s name, account number, and mailing
      address;




      2
       Suntrust filed an application for interlocutory appeal of the order denying its
motion to compel arbitration, which we granted in Case. No. A12A2547, and
Bickerstaff cross-appealed in Case No. A12A2548. However, we later dismissed both
appeals as having been improvidently granted.

                                            5
      b. the date each Overdraft was incurred and the amount of the
Overdraft;


      c. the date and amount of any Overdraft Fee that was charged to
the account;


      d. the dates that the account which had an Overdraft subsequently
had any transaction that affected the account balance, including, but not
limited to, any deposits, credits, or debits and the amount, nature, and
posting date of such transactions;


      e. the date that an account which had an Overdraft subsequently
had a positive balance, if it did ever have such a positive balance; and


      f. the date and amount of any adjustments, credits, or refunds of
any Overdraft Fee incurred on the account.


2. With a sufficient amount of time and expense, it is possible to obtain
and process the documents and/or data sufficient to show the
information listed in paragraph 1 above. SunTrust will not argue that
class certification should be denied on the basis that it would be unduly
burdensome, difficult, or impossible to obtain and produce the
documents and data referenced in paragraph 1 above. SunTrust reserves
and retains all rights to object to Plaintiff’s request for production of
documents.




                                     6
      3. The number of individuals who maintain consumer deposit accounts
      with Georgia mailing addresses which have been assessed an Overdraft
      Fee caused by an Overdraft during the Class Period exceeds 1,000.


      4. SunTrust will not argue that class certification should be denied on
      the basis that the systems or processes used to record an Overdraft and
      assess an Overdraft Fee during the Class Period differ materially from
      customer to customer.


      5. During the Class Period, the Overdraft Fee ranged from $32.00 to
      $36.00. SunTrust will not argue that class certification should be denied
      on the basis that the amounts of putative class members’ individual
      claims related to Overdraft Fees are sufficiently large for it to be feasible
      for such claims to be brought individually. . . .




      In 2013, Bickerstaff moved for class certification, pursuant to OCGA

§ 9-11-23. SunTrust opposed class certification, arguing, in relevant part, that (1) the

class-action waiver in the Rules and Regulations precluded certification;

(2) Bickerstaff could not opt out of the arbitration agreement on behalf of the class;

and (3) Bickerstaff could not satisfy the numerosity, commonality, typicality, and

adequacy of representation requirements for class certification under OCGA § 9-11-

23. In reply, Bickerstaff asserted, among other arguments, that the class-action waiver


                                           7
was unconscionable, and, alternatively, was unenforceable as a matter of law because

it was a non-severable part of the unenforceable jury trial waiver.

      Following a hearing, the trial court denied Bickerstaff’s motion for class

certification, finding that the class lacked numerosity because Bickerstaff could not

reject arbitration on behalf of the putative class.3 Bickerstaff appealed the denial of

class certification (Case No. A14A1780), and SunTrust cross-appealed the denial of

its motion to compel arbitration (Case No. A14A1781). We affirmed the trial court’s

denial of both motions. Bickerstaff v. SunTrust Bank, 332 Ga. App. 121 (770 SE2d

903) (2015) (“Bickerstaff I”). Bickerstaff appealed the class certification issue to our

Supreme Court,4 and the Court reversed and remanded the case for further

proceedings, holding that

      the terms of the arbitration rejection provision of SunTrust’s deposit
      agreement do not prevent Bickerstaff’s class action complaint from
      tolling the contractual limitation for rejecting that provision on behalf
      of all putative class members until such time as the class may be

      3
        In reaching its decision, the trial court only addressed the numerosity factor
under OCGA § 9-11-23 (a) and did not consider the other remaining factors, or the
validity and effect of the class-action waiver in the Rules and Regulations.
      4
        SunTrust did not appeal the determination that Bickerstaff had opted out of
the mandatory arbitration provision by filing the underlying complaint. Bickerstaff
II, 299 Ga. at 461 n.4.

                                           8
      certified and each member makes the election to opt out or remain in the
      class. Accordingly, the numerosity requirement of OCGA § 9-11-23 (a)
      (1) for pursuing a class complaint is not defeated on this ground.


Bickerstaff v. Suntrust Bank, 299 Ga. 459, 470 (788 SE2d 787) (2016) (“Bickerstaff

II”). SunTrust filed a petition for writ of certiorari to the United States Supreme

Court, which was denied. See SunTrust Bank v. Bickerstaff, 137 SCt 571 (196 LEd

2d 447) (2016).

      On remand, following supplemental briefing by the parties,5 the trial court

found that the class-action waiver (contained in the jury trial waiver provision of the

Rules and Regulations) was procedurally and substantively unconscionable.

Additionally, the trial court found that all of the requirements of OCGA § 9-11-23

were met and certified the following class:

      Every Georgia citizen who had or has one or more accounts with
      SunTrust Bank and who, from July 12, 2006, to October 6, 2017 (i) had
      at least one overdraft of $500.00 or less resulting from an ATM or debit
      card transaction (the “Transaction”); (ii) paid any Overdraft Fees as a
      result of the Transaction; and (iii) did not receive a refund of those Fees.


      5
         The trial court explained that it would be considering all of the matters
previously briefed, and, therefore, the parties were to use supplemental briefing to
address new or additional case law and not to reargue “what has already been said”
in the supplemental briefing.

                                           9
This appeal followed.

      “The issues of contract construction and enforceability are generally questions

of law for a court to resolve and are therefore subject to de novo review on appeal.”

Precision Planning, Inc. v. Richmark Communities, Inc., 298 Ga. App. 78, 78 (679

SE2d 43) (2009). We review a trial court’s grant of class certification for abuse of

discretion. See J. M. I. C. Life Ins. Co. v. Toole, 280 Ga. App. 372, 375 (2) (634 SE2d

123) (2006). With these principles in mind, we turn to SunTrust’s enumeration of

errors.

      1. The first issue before us is whether the class-action waiver in SunTrust’s

Rules and Regulations is enforceable. The trial court found that the class-action

waiver was unconscionable and therefore unenforceable. In three interrelated

enumerations of error, SunTrust argues that the trial court erred in finding that the

class-action waiver was unconscionable. On the other hand, Bickerstaff argues that

we need not reach the question of unconscionability because the class-action waiver

is unenforceable as a matter of law as it is a non-severable, integrated part of the

legally unenforceable jury trial waiver. SunTrust does not dispute that the jury trial




                                          10
waiver is unenforceable as a matter of law in Georgia,6 but maintains that the class-

action waiver is severable from the otherwise invalid provision. For the reasons that

follow, we agree with Bickerstaff.

      Our Supreme Court has held “that pre-litigation contractual waivers of the right

to trial by jury are not enforceable in cases tried under the laws of Georgia.” Bank

South, N.A. v. Howard, 264 Ga. 339, 340-341 (444 SE2d 799) (1994). SunTrust’s

class-action waiver is not an independent provision. Rather, it is a single sentence

contained in the unenforceable jury trial waiver provision. Nevertheless, SunTrust

maintains that the class-action waiver is severable based on the general severability

clause appearing at the beginning of the Rules and Regulations, which provides that

“[a] determination that any part of this agreement is invalid or unenforceable will not

affect the remainder of this agreement.” However, “[t]he concept of severability refers

to striking a distinct part [of a contract and allowing the remainder to stand], not to

excising certain language contained in a single provision.” AMB Property, L.P. v.

MTS, Inc., 250 Ga. App. 513, 515 (551 SE2d 102) (2001) (footnote omitted);see also


      6
       SunTrust notes that, although pre-litigation contractual jury trial waivers are
unenforceable in Georgia, such waivers are enforceable in other states where
SunTrust operates. That fact, however, is irrelevant to this appeal because it is
undisputed that Georgia law applies in this case.

                                          11
OCGA § 13-1-8 (a) (“A contract may be either entire or severable. In an entire

contract, the whole contract stands or falls together. In a severable contract, the

failure of a distinct part does not void the remainder.”). In other words, the

severability clause allows the remainder of the Rules and Regulations to stand if the

jury trial waiver, or any other provision, is voided or deemed unenforceable. The

severability clause, however, does not authorize SunTrust or the courts to excise a

single sentence (the class-action waiver) from a single integrated provision (the jury

trial waiver). AMB Property, 250 Ga. App. at 515. Accordingly, because the

class-action waiver is a non-severable part of the unenforceable jury trial waiver

provision, we agree with Bickerstaff that the class-action waiver is unenforceable as

a matter of law.7

      2. SunTrust argues on appeal that, even in the absence of the class-action

waiver, class certification under OCGA § 9-11-23 (b) (3) was inappropriate because

individual issues predominate over any common question of law or fact. For the



      7
        Although the trial court did not find this issue dispositive, “[u]nder the right
for any reason doctrine, [we] will affirm a judgment if it is correct for any reason,
even if that reason is different than the reason upon which the trial court relied.”
Maynard v. Snapchat, Inc., 346 Ga. App. 131, 137 (2) (816 SE2d 77) (2018) (citation
and punctuation omitted).

                                          12
reasons that follow, no abuse of discretion appears in the trial court’s decision to

certify the class.

       The requirements for class certification are set forth in OCGA § 9-11-23 (a)

and (b). “In determining the propriety of a class action, the first issue to be resolved

is not whether the plaintiffs have stated a cause of action or may ultimately prevail

on the merits but whether the requirements of OCGA § 9-11-23 have been met.”

Fortis Ins. Co. v. Kahn, 299 Ga. App. 319, 324 (2) (c) (683 SE2d 4) (2009) (citation,

punctuation and footnote omitted). Thus, in order to certify a class a trial court must

find that:

       (1) [t]he class is so numerous that joinder of all members is
       impracticable;


       (2) [t]here are questions of law or fact common to the class;


       (3) [t]he claims or defenses of the representative parties are typical of
       the claims or defenses of the class; and


       (4) [t]he representative parties will fairly and adequately protect the
       interests of the class.




                                          13
OCGA § 9-11-23 (a).8 Additionally, the trial court must determine that at least one

ground of OCGA § 9-11-23 (b) is satisfied. See Bickerstaff II, 299 Ga. at 461-462

(“Under Georgia law, a case may proceed as a class action if all prerequisites of

OCGA § 9-11-23 (a) are satisfied: numerosity, commonality, typicality, and

adequacy, and if at least one ground of OCGA § 9-11-23 (b) is satisfied.”) (citation

and punctuation omitted). In relevant part, OCGA § 9-11-23 (b) (3) provides that a

class action may be maintained if “[t]he court finds that the questions of law or fact

common to the members of the class predominate over any questions affecting only

individual members, and that a class action is superior to other available methods for

the fair and efficient adjudication of the controversy.”

      “Trial judges have broad discretion in deciding whether to certify a class, and

plaintiffs bear the burden of proving class certification is appropriate. Absent an

abuse of the trial judge’s discretion in certifying a class, such decision must be

affirmed.” J. M. I. C. Life Ins., 280 Ga. App. at 375 (2) (citations omitted).

“Moreover, we will not reverse factual findings in a trial court’s class certification

order unless they are clearly erroneous. Under the ‘clearly erroneous’ test, factual


      8
     SunTrust does not challenge the trial court’s finding that the prerequisites of
OCGA § 9-11-23 (a) were satisfied.

                                         14
findings must be affirmed if supported by any evidence.” Resource Life Ins. Co. v.

Buckner, 304 Ga. App. 719, 729 (3) (698 SE2d 19) (2010) (citation and punctuation

omitted).

      First, SunTrust asserts that class certification is improper under OCGA

§ 9-11-23 (b) (3) because the class-action waiver is enforceable, and, regardless,

whether the waiver is procedurally unconscionable is an individualized issue. We

disagree. As discussed in Division 1, the class-action waiver is unenforceable as a

matter of law.

      Second, SunTrust argues that whether its overdraft fees constitute interest

cannot be determined on a class-wide basis because the particular services involved

and costs incurred by SunTrust vary with each fee, and “[a] service charge is not

interest if it was based upon some service rendered, trouble encountered,

inconvenience sustained or risk assumed by [SunTrust], other than the advance of

money.” However, this argument is belied by SunTrust’s stipulation that it “would not

argue that class certification should be denied on the basis that the systems or

processes used to record an Overdraft and assess an Overdraft Fee . . . differ

materially from customer to customer.” Furthermore, “[t]he commonality requirement

does not require that all questions of law and fact be common to every member of the

                                         15
class. Rather, the rule requires only that resolution of the common questions affect

all or a substantial number of the class members.” Brenntag Mid South, Inc. v. Smart,

308 Ga. App. 899, 903-904 (2) (a) (ii) (710 SE2d 569) (2011) (citation and

punctuation omitted); J. M. I. C. Life Ins., 280 Ga. App. at 375 (2) (“a class action is

authorized if the members of the class share a common right and common questions

of law or fact predominate over individual questions of law or fact. The nature of the

right to be enforced may be in common, though the facts as to each member of the

alleged class may be different”) (citations and punctuation omitted). Moreover,

“[w]hat matters to class certification . . . [is] the capacity of a classwide proceeding

to generate common answers apt to drive the resolution of the litigation.” See Wal-

Mart Stores, Inc. v. Dukes, 564 U. S. 338, 350 (II) (A) (131 SCt 2541, 180 LEd2d

374) (2011) (citation and punctuation omitted).

      Here, the putative class members challenge the legality of SunTrust’s overdraft

fees, namely whether the overdraft fees constitute unlawful interest under Georgia

law. This question will be determined by examination of a common set of terms in

identical form contracts that apply to all members of the putative class, and we have

held that “claims arising from interpretation of form agreements are considered to be

‘classic cases’ for treatment as a class action.” Resource Life, 304 Ga. App. at 729 (3)

                                          16
(a) (citation and punctuation omitted). More importantly, the answer to this question

will not vary with each class member. Thus, a classwide proceeding in this case has

the capacity to generate common answers that will drive the resolution of this

litigation and renders a class action superior to other available methods for the fair

and efficient adjudication of the controversy. Dukes, 564 U. S. at 350 (II) (A).

      Third, SunTrust asserts that class certification is improper because, if the

overdraft fees constitute interest, then the term of each “loan” will have to be

determined on an individualized basis for purposes of calculating damages. In other

words, the “loan” begins on the date the overdraft is incurred and ends on the date the

overdraft and the overdraft fee(s) are repaid by the account holder (i.e. when the

account holder brings his or her account balance positive). Therefore, SunTrust is

correct that, if Bickerstaff prevails on his claim that the overdraft fees constitute

interest, the term of each loan will vary from customer to customer. However, it is

well established that “the need for individual damage calculations does not defeat

class certification, so long as the liability inquiry presented common legal issues.”

Earthlink, Inc. v. Eaves, 293 Ga. App. 75, 77 (1) (666 SE2d 420) (2008) (footnote

omitted). As discussed above, the common legal issue of whether SunTrust’s

overdraft fees constitute interest predominates and the answer to that question will

                                          17
determine SunTrust’s liability for all putative class members. Furthermore, SunTrust

stipulated that it maintains and can access information for each putative class

member’s account related to the date and amounts of any overdraft fees charged (“the

loan”) during the relevant class period, the date that such fees were paid (i.e. the date

the customer’s account had a positive balance and the loan was therefore “paid off”),

and any adjustments, credits, or refunds any class member may have received in

relation to the charged overdraft fees. Bickerstaff’s expert in data analysis stated in

his deposition that it would be possible to use this information to determine the term

of the loans for each customer. Thus, any individual factual variations concerning the

term of the loan(s) would not necessitate the application of a different set of legal

principles. Rather, “when the loan termination date is plugged in to the other

information [SunTrust] admits it keeps for all [account holders], it is simply a

formulaic administrative matter to determine both who is owed a refund and how

much each [account holder] is owed. The fact that there may be differences in the

damages for the members of the class does not prevent certification[.]” Resource Life,

304 Ga. App. at 731-732 (3) (a) (citation and punctuation omitted).

      Finally, SunTrust asserts that class certification is improper because each class

member’s ability to recover on the claims for conversion and money had and received

                                           18
will depend on an individualized inquiry as to whether the voluntary payment

doctrine bars recovery.9 This argument is unpersuasive. Bickerstaff’s claims for

money had and received and conversion seek to recover all payments under

SunTrust’s overdraft program deemed to be usurious, and it is well-established that

the voluntary payment doctrine does not apply to the recovery of usury. See, e.g., Dell

v. Kugel, 99 Ga. App. 551, 561 (8) (109 SE2d 532) (1959) (holding “[t]hat usury

[voluntarily] payed [sic] may be recovered back, under the laws of this State”)

(citation and punctuation omitted); Morgan v. Shepherd, 171 Ga. 33, 38-39 (3) (154

SE 780) (1930) (explaining that usury voluntarily paid can be recovered because “a

payment of usurious interest is regarded as obtained by taking advantage of the

necessities of the borrower, and is therefore excepted from the ordinary rule that one

who voluntarily pays money on an illegal demand can not maintain an action to

recover such payment”). Thus, if Bickerstaff is successful on his claim that

SunTrust’s overdraft fees constitute interest and are usurious, the voluntary payment


      9
       Under the voluntary payment doctrine, “[p]ayments 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 unless made under an urgent and
immediate necessity thereof or to release person or property from detention or to
prevent an immediate seizure of person or property.” OCGA § 13-1-13.

                                          19
doctrine will not bar recovery by the putative class members. Accordingly, this issue

does not preclude class certification.

      In light of the foregoing, we conclude the trial court did not abuse its discretion

in certifying the class.

      Judgment affirmed. Rickman and Coomer, JJ., concur.




                                          20
