Pre-populated form indicating no attorney preference was OK, court says

A mortgage lender that pre-populated a refinancing form to say that the borrowers would not be using the services of legal counsel nevertheless complied with the South Carolina Attorney Preference Statute because it did so based on the borrower’s answers to the lender’s questions, and the borrowers signed the form, a federal judge has ruled.

Thelma and Vance Boone applied with Quicken Loans to refinance their home mortgage in 2012. Thelma provided information by phone to a Quicken mortgage banker for purposes of completing the application. As a result of that information, Quicken generated application documents in which the choice “I/We will not use the services of legal counsel” was pre-selected. The Boones then signed the document. They later met with an attorney selected by Quicken who represented them at the closing.

In 2015, the Boones sued Quicken, alleging that the company violated the SCAPS, which provides that whenever a loan secured by real estate is obtained for a family or personal purpose, the creditor must before closing ascertain the borrower’s preference as to the legal counsel employed to represent the debtor in all matters relating to closing the transaction. The case was removed to federal court, and in a Feb. 9 decision, Judge Michelle Childs granted Quicken’s motion for summary judgment.

Childs noted that South Carolina’s courts had never addressed this precise issue, but found that based on a plain reading of the statute that Quicken did ascertain the Boones’ attorney preference in compliance with the SCAPS. A Quicken agent expressly asked Thelma if the couple would be selecting legal counsel, and after being told that the couple did not have a counsel of preference, it sent them a preference checklist indicating that they had a right to select legal counsel to represent them in the transaction.

“In this regard, Plaintiffs’ assertion of no preference is their preference,” Childs wrote.

Charles Hutto of Williams and Williams in Orangeburg, Daniel Williams of Bedingfield and Williams in Barnwell, and Steven Hamm and Jo Anne Wessinger Hill of Richardson Plowden and Robinson in Columbia represented the Boones. Allen Bogan, Benjamin Smith, Carmen Harper Thomas and Graham Billings of Nelson Mullins Riley and Scarborough in Columbia represented Quicken Loans.

The 11-page decision is Boone v. Quicken Loans, Inc. (Lawyers Weekly No. 002-035-18). An opinion digest is available online at sclawyersweekly.com.

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