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King v. First Capital Financial Services Corp.

September 26, 2003

WILLARD J. KING, JR., AND SHEILA KING, PLAINTIFFS--APPELLEES,
v.
FIRST CAPITAL FINANCIAL SERVICES CORP. D/B/A FCF FUNDING DEFENDANT--APPELLANT.



Appeal from the Circuit Court for the 14th Judicial Circuit, Rock Island County, Illinois No. 01-L-189 Honorable Lori Lefstein, Judge, Presiding

The opinion of the court was delivered by: Presiding Justice McDADE

UNPUBLISHED

Defendant, First Capital Financial Services Corp. (First Capital), seeks, by interlocutory appeal, review of a decision of the circuit court of Rock Island County denying its motion to dismiss two counts of plaintiffs' complaint charging defendant with the unauthorized practice of law. The appeal asks (1) whether a lender that prepares documents for use in loan transactions in which the lender is involved and charges the borrower for the preparation of those documents is engaged in the unauthorized practice of law, and (2) assuming arguendo that the answer to the first issue is "yes," whether a private cause of action exists for the lender's unauthorized practice of law. We find that the challenged actions are not the unauthorized practice of law. Having so found, we do not reach the second certified question. The matter is remanded to the circuit court for further proceedings consistent with this opinion.

BACKGROUND

On December 29, 2000, the plaintiffs, Sheila and Willard King, secured a mortgage loan from the defendant, First Capital, for the purpose of buying a new home. The mortgage was for $86,000, and the loan also contained a number of administrative fees, one of which was $225 for "document preparation." The fee was charged by First Capital in order to recoup costs incurred in the preparation of "the note and related documents."

After they received the mortgage, the plaintiffs filed a four-count complaint against First Capital, alleging: (1) an individual claim that First Capital violated the Truth in Lending Act (15 U.S.C. §1601 et. seq. (2000)) by failing to properly disclose the finance charges on the mortgage; (2) a class claim that First Capital engaged in the unauthorized practice of law by preparing the mortgage documents and charging the document preparation fee; (3) a class claim that First Capital violated the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et. seq., (West 2000)), by engaging in the unauthorized practice of law without giving notice to the Kings of that fact; and (4) a class claim that the defendant is required to repay the document preparation fee under a theory of money had and received.

First Capital filed a motion under section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 2002)) to dismiss the three class claims grounded in the alleged unauthorized practice of law. The court granted the motion to dismiss count II of the complaint, ruling that the statute prohibiting the unauthorized practice of law does not confer a private right of action. The court denied the motion to dismiss the other two claims, finding that, if unauthorized practice of law could be shown, actions for consumer fraud and money had and received could be alleged. The defendant took an interlocutory appeal from the decision of the trial court and maintains that all three of the plaintiffs' class counts should have been dismissed.

ANALYSIS

The court should grant a section 2--615 motion to dismiss when the allegations in the complaint, viewed in the light most favorable to the plaintiff, fail to support a cause of action upon which relief can be granted. Board of Directors of Bloomfield Club Recreation Ass'n v. Hoffman Group, Inc., 186 Ill. 2d 419, 424, 712 N.E.2d 330, 333 (1999). This court will review the trial court's ruling on a section 2--615 motion de novo. Bloomfield, 186 Ill. 2d at 424, 712 N.E.2d at 333.

The trial court certified two questions on appeal: first, whether the act of preparing mortgage documents and charging a fee for that preparation amounted to the unauthorized practice of law when done by a non-attorney, and second, if the defendant's action constituted the unauthorized practice of law, did plaintiffs have the right to seek a private remedy for the activity. For the following reasons, we find that First Capital did not engage in the unauthorized practice of law.

This case is similar to our decision in First Federal Savings & Loan Ass'n of Bureau County v. Sadnick, 162 Ill App. 3d 581, 515 N.E.2d 1354 (1987). In that case, the plaintiff entered into a mortgage with the defendant, a savings and loan, and the defendant prepared the mortgage document. When the defendant attempted to foreclose on the property, the plaintiff filed suit, alleging that the mortgage was invalid because the defendant had engaged in the unauthorized practice of law in creating the documents without the assistance of a lawyer. Sadnick, 162 Ill. App. 3d at 581, 515 N.E.2d at 1355.

This court disagreed with the plaintiff. Relying on Chicago Bar Ass'n v. Quinlan & Tyson, Inc., 34 Ill. 2d 116, 214 N.E.2d 771 (1966), the court held that since the defendant had prepared the documents for use in its own business, it was not engaged in the unauthorized practice of law but, rather, was acting pro se. Sadnick, 162 Ill. App. 3d at 583, 515 N.E.2d at 1356. The court found it relevant that the defendant had prepared the documents for its own protection in the transaction, that it had not held itself out as a legal representative or advisor, and that it had not prevented the plaintiff from seeking his own counsel to review the documents. Sadnick, 162 Ill. App. 3d at 583, 515 N.E.2d at 1356.

Sadnick is dispositive of the present case. Nevertheless, the plaintiffs attempt to distinguish the case, pointing out that the defendant here, unlike that in Sadnick, charged a fee for the preparation of the documents. The plaintiffs assert that the effect of the fee is to transform otherwise legal activity into the unauthorized practice of law.

We reject that argument. As the supreme court in Quinlan & Tyson recognized with regard to unauthorized practice, it is "the character of the acts themselves that determine the issue." Quinlan & Tyson, 34 Ill 2d at 120, 214 N.E.2d at 774. The court noted that whether a defendant charges a fee for the act is not decisive of whether it is unauthorized practice. Quinlan & Tyson, 34 Ill 2d at 120, 214 N.E.2d at 773. In Quinlan & Tyson, the documents were prepared by defendant, not for its own use but for others to use with their clients. The court found defendant's acts were not pro se. In this case, as in Sadnick, the documents prepared by First Capital were solely for its own use and the acts ...


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