Boone v. Quicken Loans, Inc.
Boone v. Quicken Loans, Inc.
Opinion of the Court
We accepted this declaratory judgment matter in our original jurisdiction to determine if Respondents/Petitioners Quicken Loans, Inc. (Quicken Loans) and Title Source, Inc. (Title Source) have engaged in the unauthorized practice of law (UPL).
We referred this matter to a Special Referee to take evidence and issue a report containing proposed findings of fact and recommendations to the Court regarding the UPL issue, as well as on the issues of class certification and class relief. Following an evidentiary proceeding during which the parties submitted extensive testimony and documentary evidence, the Special Referee issued a report proposing various factual findings and recommending this Court declare that Quicken Loans and Title Source engaged in UPL but opining that neither class certification nor class relief were appropriate under the circumstances. Quicken Loans and Title Source took exception to the Special Referee’s proposed findings of fact and UPL recommendation. Homeowners took exception to Special Referee’s recommendation that class certification and class relief were unwarranted under the circumstances.
We find the record in this case shows licensed South Carolina attorneys were involved at every critical step of these refinancing transactions, as required by our precedents. We also find that requiring more attorney involvement would not
I.
Quicken Loans is a nationwide online mortgage lender that provides, among other things, residential mortgage loan refinances. Prior to expanding into the South Carolina market, Quicken Loans engaged South Carolina attorneys—with expertise in real estate transactions and knowledgeable of our UPL jurisprudence—to review the Quicken Loans refinance procedure. After reviewing the procedure, the attorneys opined that the procedure would not constitute UPL, as evidenced by the sufficient involvement of a South Carolina lawyer at each critical step. Buoyed by the supporting opinions of South Carolina lawyers, Quicken Loans moved forward with offering residential mortgage loan refinance services to South Carolina borrowers.
Under the Quicken Loans refinance procedure, the borrowers have already purchased the property and are simply seeking a new mortgage loan (presumably with more favorable terms) to replace the existing loan. The process begins with a potential borrower completing a loan application, which is typically done online. Thereafter, the borrower speaks on the telephone with a licensed mortgage banker employed by Quicken Loans. Each borrower is informed that he or she has the right to select legal counsel to represent him or her in the transaction and asked whether he or she has a preference as to a specific attorney.
For the transactions at issue in this case, Title Source turned to a non-attorney abstractor (Abstractor) to perform a title search and prepare a title abstract. In each of these transactions, Title Source initiated the title search by ordering a title abstract from Abstractor via email for each particular parcel of property to be refinanced. The scope of each title search was directed by Title Source in the email ordering the search; for loan refinances, no transfer of ownership takes place, so the title search includes two years back from the relevant vesting deed. Upon receiving a title abstract order from Title Source, Abstractor determined the county in which the property is located, then traveled to the relevant county land records office to locate and photocopy the pertinent documents on record, such as deeds, mortgages, mortgage assignments, loan modifications, tax documents, and personal judgments against the borrower(s). Thereafter, Abstractor prepared an “abstract” or index of the documents pulled from the public records, scanned and uploaded the abstract sheet along with the documents themselves, and electronically transmitted both the abstract and supporting documents back to Title Source through a web portal.
After Abstractor’s reports were transmitted to Title Source through the web portal, Title Source subsequently digitally transmitted those reports to David Aylor, a South Carolina attorney, who personally reviewed the title abstract and accompanying documents. If appropriate, based on his review of the documents, Aylor used an electronic template to generate and digitally sign title review certificates, verifying that he had reviewed the title documents and that the property owners held fee simple title to the property they were seeking to refinance.
Thereafter, Title Source and Quicken Loans coordinated to schedule the loan closings and prepare the closing package, including the HUD-1 settlement statement, note, mortgage, and closing instructions, which were reviewed by the closing attorney prior to closing. In reviewing the closing package documents, the closing attorney confirmed that the title work was certified by a South Carolina lawyer and that the closing documents were accurate and complied with the law, and if necessary, made corrections or refused to proceed with the closing until the discrepancies were resolved.
Thereafter, the closing attorneys met with the borrowers in person, explained the legal effect of the loan documents, answered any questions the borrowers had, and supervised the borrowers’ execution of the legal instruments.
Once the closing was finished, the attorney returned the executed documents to Title Source, along with detailed instructions on recording certain documents and disbursing loan proceeds. Upon the disbursement of funds, Title Source provided each closing attorney with a closing ledger, which the closing attorney used to confirm that disbursement of the funds was done in accordance with the HUD-I settlement statement. Following recordation in the proper county land records office, a certified copy of each recorded document is mailed to the closing lawyer for their review.
Nevertheless, at the conclusion of the evidentiary hearing, the Special Referee issued a report recommending this Court declare Respondents’ conduct to be UPL and issue an injunction against Respondents conducting real estate refinance transactions in South Carolina. In so finding, the Special Referee focused on the proper issue, that is, whether the supervision by the South Carolina attorneys was sufficient and “meaningful.”
Quicken Loans and Title Source take exception to the Special Referee’s recommendation that the Court find they engaged in UPL and contend the Report and Recommendation misconstrued this Court’s UPL precedents and omitted and ignored material facts demonstrating Respondents’ compliance with the law and protection of South Carolina consumers. Conversely, the Homeowners urge this Court to adopt the Special Referee’s finding that Quicken Loans and Title Source engaged in UPL; the Homeowners further contend they are also entitled to additional relief beyond the injunction recommended by the Special Referee.
II.
The South Carolina Constitution assigns to this Court the duty to regulate the practice of law. S.C. Const, art. V, § 4. “South Carolina, like other jurisdictions, limits the practice of law to licensed attorneys.” Brown v. Coe, 365 S.C. 137, 139, 616 S.E.2d 705, 706 (2005) (citation omitted). “[T]he policy
“The generally understood definition of the practice of law embraces the preparation of pleadings, and other papers incident to actions and special proceedings, and the management of such actions and proceedings on behalf of clients before judges and courts.” Crawford v. Cent. Mortg. Co., 404 S.C. 39, 45, 744 S.E.2d 538, 541 (2013) (quoting State v. Despain, 319 S.C. 317, 319, 460 S.E.2d 576, 577 (1995)) (internal quotation marks omitted). Further, this Court has recognized that “[t]he practice of law is not confined to litigation, but extends to activities in other fields which entail specialized legal knowledge and ability.” State v. Buyers Serv. Co., 292 S.C. 426, 430, 357 S.E.2d 15, 17 (1987). This includes the preparation of legal documents “when such preparation involves the giving of advice, consultation, explanation, or recommendations on matters of law.” Franklin v. Chavis, 371 S.C. 527, 531-32, 640 S.E.2d 873, 876 (2007).
However, “[o]ther than these general statements, there is no comprehensive definition of the practice of law.” Roberts v. LaConey, 375 S.C. 97, 103, 650 S.E.2d 474, 477 (2007) (citing Linder v. Insurance Claims Consultants, Inc., 348 S.C. 477, 487, 560 S.E.2d 612, 617-18 (2002)).
The absence of a precise definition is deliberate. This Court has resisted attempts to establish a bright-line definition of what constitutes the practice of law,
During the last three decades, this Court has explored many times what activities constitute the practice of law in the context of a residential real estate transaction. Almost thirty years ago, in the seminal case of Buyers Service, we first identified four steps in a residential real estate purchase transaction that constitute the practice of law and, therefore, must be performed or supervised by a South Carolina-licensed attorney: (1) the preparation of “deeds, notes[,] and other instruments related to mortgage loans and transfers of real property”;
The common thread running through our decisions is the desire to protect the public. We determined that UPL claims should be analyzed on a case-by-case basis “to strike a proper balance between the legal profession and other professionals which will ensure the public’s protection from the harms caused by the unauthorized practice of law.” In re Unauthorized Practice of Law Rules, 309 S.C. at 307, 422 S.E.2d at 125. As the Supreme Court of Georgia has observed regarding that state’s similar requirement that an attorney oversee real estate transactions, “[i]f the attorney fails in his or her responsibility in the closing, the attorney may be held accountable through a malpractice or [] disciplinary action. In contrast, the public has little or no recourse if a non-lawyer fails to close the transaction properly.” In re UPL Advisory Opinion 2003-2, 277 Ga. 472, 588 S.E.2d 741, 742 (2003).
Indeed, the complete lack of attorney involvement was what prompted this Court to find UPL had occurred in Buyers Service and in Matrix Financial Services Corp. v. Frazer, 394 S.C. 134, 714 S.E.2d 532 (2011). Buyers Service was a commercial title company that, along with a lender, performed entire real estate transactions with no attorney oversight. See Buyers Serv., 292 S.C. at 428-29, 357 S.E.2d at 16-17. The Court determined Buyers Service had committed UPL by settling the transactions—including ordering and filling out legal instruments relating to the transfer of real property, such as mortgages and deeds; performing title searches and creating abstracts to determine ownership of property; giving legal advice, including as to how purchasers could acquire fee
As protection of the public is, and has always been, the lodestar of our context-dependent approach to determining whether an activity constitutes the practice of law, this Court has refused to require attorney involvement it did not find necessary to protect the public. For instance, even though the Court has determined that, in the context of a real estate transaction, the disbursement of loan proceeds must be supervised by an attorney, the Court nevertheless refused to “specify the form that supervision must take.” Richardson, 371 S.C. at 18, 636 S.E.2d at 868. Rather than requiring loan proceeds to pass through a closing attorney’s trust account, we instead left it up to the supervising attorneys to decide how best to satisfy their obligations to their clients. Id. Additionally, we have held that attorney supervision over loan modifications is not required because the cost to consumers would be greater than any benefit, given the “the existence of a robust regulatory regime and competent non-attorney professionals” involved in the loan-modification process. Crawford, 404 S.C. at 47, 744 S.E.2d at 542.
Likewise, in Doe v. McMaster, we found a lawyer’s association with a lender and title company did not violate “the proscription against the unauthorized practice of law.” 355 S.C. 306, 316, 585 S.E.2d 773, 778 (2003). McMaster was a
As a result, in evaluating whether challenged conduct constitutes the unauthorized practice of law, this Court carefully considers the specific constellation of facts presented and
A. Title Search and Certification
First, for every transaction challenged in this lawsuit, a South Carolina attorney issued a title review certifícate saying he had carefully reviewed the records for the subject property and made a determination as to the ownership of that property. The express purpose of issuing the certificate was “to affirm that the residential title work and search were conducted under the supervision of a South Carolina attorney.” Id. We do not believe the effectiveness of the title certificates is altered by the fact that a non-lawyer created the abstract reviewed by the attorney, for we have held that “if a licensed attorney reviews the title abstractor’s report and vouches for its legal sufficiency by signing the report, title abstractors would not be engaged in the unauthorized practice of law.” Ex parte Watson, 866 S.C. 432, 436, 589 S.E.2d 760, 762 (2003). Moreover, Aylor, the attorney who issued the title certificates in this case, testified that he always personally reviewed the abstractor’s report and only issued a title certificate if he was confident of its legal sufficiency. Aylor said he took steps to ensure he complied with all applicable laws, including South Carolina’s rules on UPL.
B. Preparation of Instruments
Next, although Quicken Loans and Title Source were primarily responsible for preparing the loan documents uti
C. Closing the Transaction
As to the closings, we find the record shows all of the loans were closed with appropriate attorney supervision. See Buyers Service, 292 S.C. at 433-34, 357 S.E.2d at 19 (stating that real estate closings must be supervised by an attorney). Each closing attorney signed a Closing Attorney’s Statement, indicating he or she had reviewed all of the relevant closing documents including the HUD-1 settlement statement, note, mortgage, and legal description prior to closing. Each attorney also stated that he or she reviewed and explained the documents to the borrowers, answered any questions the borrowers asked, and supervised the borrowers’ execution of the documents. Because a licensed attorney who had previously reviewed the closing documents for accuracy and legal sufficiency was physically present at each closing to answer questions and to instruct borrowers in the manner in which to execute the closing documents, there is no basis for a finding of UPL with respect to this step of the challenged transactions. Id.] In re Lester, 353 S.C. 246, 247, 578 S.E.2d 7, 7 (2003).
D. Recording and Disbursement
Finally, we find the record shows lawyers authorized and supervised the recording of all necessary documents and the disbursement of funds. See Richardson, 371 S.C. at 18, 636 S.E.2d at 868; Buyers Service, 292 S.C. at 434, 357 S.E.2d at 19. Each closing attorney testified he or she monitored the disbursement and recordation process to ensure the refinance transaction was properly completed in compliance with South Carolina law. Further, the evidence shows that in each loan transaction here, the closing attorney authorized
III.
Given the extensive evidence of attorney involvement summarized above, we declare Respondents’ conduct not does not constitute UPL. It appears Quicken Loans, Title Source, and those acting on their behalf took appropriate steps to ensure their actions complied with our state’s UPL rules, including soliciting opinions from other South Carolina attorneys as to what lawyers must do during real estate transactions to avoid violating South Carolina’s UPL rules. The record further reveals Title Source expected the South Carolina attorneys it engaged to take the steps needed to comply with South Carolina law. We do not suggest that such expectations are dispositive. Rather, these expectations must translate into actual compliance with the law. Here, we are firmly persuaded
Likewise, other courts have declined to require more robust attorney involvement under almost identical facts. For example, the Supreme Judicial Court of Massachusetts held that a title insurance company which contracted with lenders to coordinate settlement services in residential mortgage refinance transactions did not engage in UPL by ordering title examinations and abstracts from non-attorney third parties or by preparing HUD-1 and other settlement-related documents. Real Estate Bar Association for Massachusetts, Inc. v. National Real Estate Information Services, 459 Mass. 512, 946 N.E.2d 665, 677-79 (2011). In so finding, the court emphasized that both the title examination and the closing documents were reviewed by licensed Massachusetts attorneys prior to closing and that neither the title company nor the lender directed “the attorneys how to conduct the closing or fulfil their legal, professional, and ethical obligations.” Id. at 530, 946 N.E.2d at 682. So long as a licensed attorney interpreted the legal status of title, reviewed the settlement documents prior to closing, and remained free to exercise independent judgment in fulfilling their professional and ethical obligations, the title insurance company’s involvement in coordinating the refinance process did not constitute UPL. As to the issue of whether the title insurance company’s activities in contracting with licensed Massachusetts attorneys to attend real estate closings constituted UPL, the court noted that “[w]hen a third party interposes itself between an attorney and a client, the key question is who exercises and retains control over the attorney.” Id. at 531, 946 N.E.2d at 682-83. The court acknowledged that a third party “may facilitate the creation of a relationship between an attorney and client, and also may pay the legal bills of the client.... However, there must be a
Moreover, under the residential mortgage refinance process presented here, we believe a finding that Respondents’ conduct constituted UPL would mark an unwise and unnecessary intrusion into the marketplace. We believe this is especially so, as the attorney involvement and supervision serve the goal of protecting the public. Once it is determined that sufficient attorney involvement is present and further that the interest of the public is protected, this Court should stay its hand and let the marketplace control. Indeed, there is no allegation here of fault in connection with any title search, closing, disbursement or otherwise—Homeowners do not allege they were harmed in any way by the Quicken Loans model. To the contrary, one homeowner testified she and her husband had no problems with their loan from Quicken Loans and they would refinance with Quicken Loans again if Quicken Loans were able to offer them a better interest rate.
Simply put, we believe requiring more attorney involvement in cases such as this would belie the Court’s oft-stated assertion that UPL rules exist to protect the public, not lawyers. See, e.g., Crawford, 404 S.C. at 45, 744 S.E.2d at 541 (“The unauthorized practice of law jurisprudence in South Carolina is driven by the public policy of protecting consumers.”). In this context, where there is already “a robust regulatory regime[
DECLARATORY JUDGMENT ISSUED.
. In re Unauthorized Practice of Law Rules Proposed by the South Carolina Bar, 309 S.C. 304, 422 S.E.2d 123 (1992).
. Specifically, Homeowners requested that certain class members' mortgage liens filed after August 8, 2011, (the date this Court refiled its decision in Matrix Financial Services Corp. v. Frazer, 394 S.C. 134, 714 S.E.2d 532 (2011)), be declared void and that Quicken and Title Source be required to disgorge all fees collected during the refinancing process, together with prejudgment interest.
. See S.C. Code Ann. § 37-10-102 (2015) (requiring mortgage lenders to ascertain a borrower’s preference as to the legal counsel they wish to employ to represent them in connection with closing the loan transaction).
. Abstractor testified that occasionally, she would receive follow-up inquiries seeking clarification or requests for additional documents, and in those cases, she would revisit the county courthouse to clarify or to obtain the requested documents) and upload those through the Title Source web portal.
. Aylor testified that in reviewing the documents in title abstracts, he would sometimes encounter a problem which required him to contact
. Likewise, other states have also eschewed a rigid definition of what constitutes the practice of law in favor of a case-by-case approach. As the Massachusetts Supreme Judicial Court has explained:
We believe it is impossible to frame any comprehensive and satisfactory definition of what constitutes the practice of law. To a large extent each case must be decided upon its own particular facts, But at least it may be said that in general the practice of directing and managing the enforcement of legal claims and the establishment of the legal rights of others, where it is necessary to form and to act upon opinions as to what those rights are and as to the legal methods*461 which must be adopted to enforce them, the practice of giving or furnishing legal advice as to such rights and methods and the practice, as an occupation, of drafting documents by which such rights are created, modified, surrendered[,] or secured are all aspects of the practice of law.
In re Shoe Mfrs. Protective Ass'n, 295 Mass. 369, 3 N.E.2d 746, 748 (1936) (reaffirmed by Real Estate Bar Ass'n for Massachusetts, Inc, v. Nat’l Real Estate Info. Servs., 459 Mass. 512, 517-18, 946 N.E.2d 665, 674 (2011)).
. Buyers Serv., 292 S.C. at 430, 357 S.E.2d at 17.
. Id. at 434, 357 S.E.2d at 19. Specifically, as to the fourth step, we explained,
We do not consider the physical transportation or mailing of documents to the courthouse to be the practice of law. However, when this step takes place as part of a real estate transfer, it falls under the definition of the practice of law as formulated by this court ... It is an aspect of conveyancing and affects legal rights. The appropriate sequence of recording is critical in order to protect a purchaser’s title to property.
. Consistent with our approach, many other states also recognize the primacy of consumer protection in residential real estate conveyances and employ a similar analysis in determining the appropriate level of attorney involvement in mortgage transactions. See, e.g., In re First Escrow, Inc., 840 S.W.2d 839, 843-44 (Mo. 1992) (recognizing "the need to balance the protection of the public against a desire to avoid unnecessary inconvenience and expense” and "the duty to strike a workable balance between the public’s protection and the public’s convenience”); Bennion, Van Camp, Hagen & Ruhl v. Kassler Escrow, Inc., 96 Wash.2d 443, 635 P.2d 730, 733 (1981) (holding lay persons performing tasks relating to real estate transactions were engaged in the unauthorized practice of law and explaining “[i]t is the duty of the court to protect the public from the activity of those who, because of lack of professional skills, may cause injury whether they are members of the bar or persons never qualified for or admitted to the bar.” (quotation marks and citation omitted)).
. The Court noted that after the proceedings against Buyers Service began, the company started using an attorney to review the closing documents. Buyers Serv., 292 S.C. at 429, 357 S.E.2d at 16. However, the attorney answered only to Buyers Service and never met with the purchaser. Id. at 429, 357 S.E.2d at 17.
. McMaster, 355 S.C. at 313, 585 S.E.2d at 776.
. Id. at 310, 585 S.E.2d at 775. According to the stipulated facts the lawyer also authorized the lender to disburse funds. See id.
. Aylor's contract with Title Source also states that Aylor would be responsible for complying with South Carolina’s rules regarding UPL, specifically mentioning this Court’s rulings in Buyers Service and McMaster.
. To the extent this Court’s decision in In re Breckenridge, 416 S.C. 466, 787 S.E.2d 466 (2016), may be read to require the closing attorney utilize his or her own trust account to control the disbursement of loan proceeds, we hereby modify that decision. In doing so, we reaffirm our holding in Richardson that, in the context of a residential real estate loan closing, the disbursement of loan proceeds constitutes the practice of law and must be supervised by an attorney, Richardson, 371 S.C. at 18, 636 S.E.2d at 868. The attorney supervision required under Respondents' refinance model satisfies the Richardson standard.
. Quicken is subject to regulation by, among other things, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank),
Case-law data current through December 31, 2025. Source: CourtListener bulk data.