Perkins v. CTX Mortgage Co.

137 Wash. 2d 93

• Court: Washington Supreme Court
• Decided: January 7, 1999
• Docket: No. 64581-7
• Status: Published

Opinions

Durham, C.J.

At issue is whether a mortgage lender engages in the unauthorized practice of law by charging a fee for the production and completion of residential home loan documents. The trial court dismissed the Plaintiffs’ class action, concluding that charging a fee for the production of such documents is not the unauthorized practice of law where lay employees participating in such document preparation do not exercise any legal discretion. We agree and affirm.

Ed and Jeanne Perkins borrowed money from CTX Mortgage Company (CTX) to purchase their home. CTX charged a $250 “document preparation” fee. The fee is not charged with respect to any particular document.¹ Instead, it is charged to offset the overhead associated with the preparation of the extensive documentation necessary to process and complete loan transactions. CTX prepared various legal and nonlegal documents necessary to process and complete the Perkinses’ loan.² In preparing these documents, CTX attorneys performed all tasks requiring the exercise of legal judgment. For example, CTX attorneys selected the loan products, created the documents necessary for each loan product, and supervised the programming of CTX’s central computer, which generates form templates in the branch offices. At the branch offices, lay employees entered customer information such as Social Security numbers, employer information, and bank account numbers in response to computer prompts depending on the type of loan the Perkinses had selected. Lay employees also entered the loan amount, interest rate, down payment, and other factual data. Attorneys prepared the other documents requiring the exercise of legal judgment. For example, the Perkinses’ attorneys prepared the purchase and sale agreement, the earnest money agreement, the HUD-1, the excise tax affidavit, the warranty deed, and the escrow instructions.

The Perkinses filed a class action in King County Superior Court on behalf of CTX borrowers who were or would be charged a document preparation fee. They sought a declaratory judgment that CTX engaged in the unauthorized practice of law by charging such a fee for the preparation of loan documents. They further argued that such unauthorized practice of law violated the Consumer Protection Act, RCW 19.86 (CPA). The trial court certified the class as consisting of CTX borrowers who had paid a fee for loan documents prepared by CTX and all such future borrowers. After discovery, both parties moved for summary judgment, which was granted in favor of CTX, dismissing the Per-kinses’ claims. The Perkinses moved for reconsideration, which was denied, before appealing to the Court of Appeals. CTX moved for direct review by this court, which was granted.

I

The Perkinses contend that CTX engaged in the practice of law by selecting and completing the various documents necessary to process the Perkinses’ residential home loan. This cannot be seriously disputed. The practice of law includes the selection and completion of legal instruments by which legal rights and obligations are established. Washington State Bar Ass’n v. Great W. Union Fed. Sav. & Loan Ass’n, 91 Wn.2d 48, 54-55, 586 P.2d 870 (1978) (Great Western); see also In re Discipline of Droker, 59 Wn.2d 707, 370 P.2d 242 (1962); Washington State Bar Ass’n v. Washington Ass’n of Realtors, 41 Wn.2d 697, 251 P.2d 619 (1952) (WSBA v. WAR). It is established that the selection and preparation of promissory notes and deeds of trust is the practice of law. Great Western, 91 Wn.2d at 55. CTX and amicus Washington Mortgage Lenders Association would have us focus only on the data inputting tasks that lay employees perform. However, CTX’s attorneys created the loan documents and helped program CTX’s computer system to select the appropriate document templates. Regardless of how CTX allocates tasks between attorney employees and lay employees, CTX employees select and complete those legal documents incident to residential home financing. Thus, CTX engaged in the practice of law by selecting and preparing the various legal documents involved in this case. The question then becomes whether such activities are authorized.

II

Both the Perkinses and the Washington State Bar Association (WSBA) contend that mortgage lenders are authorized to prepare the legal instruments necessary to complete loan transactions as long as they do so without charge. But they argue that CTX’s otherwise permissible loan document preparation became unauthorized upon the charging of a fee.³ This preoccupation with the fee is misplaced. We have firmly rejected the notion that a lay person’s authority to prepare legal instruments turns on whether a fee is charged.

In Great Western, the unanimous court held that a bank, by selecting and completing legal documents, including promissory notes and deeds of trust, engaged in the unlawful practice of law where a lay employee filled out the documents and the bank charged a fee for the service. After resolving that the bank had engaged in the practice of law, the court considered whether such actions were unauthorized.

[W]e have recognized that a party to a legal document may select, prepare or draft that document without fear of liability for unauthorized practice. This exception to our general prohibition against the practice of law by laypersons is analogous to the “pro se” exception for court proceedings. Both exceptions are founded upon the belief that a layperson may desire to act on his own behalf with respect to his legal rights and obligations without the benefit of counsel.

The “pro se” exceptions are quite limited and apply only if the layperson is acting solely on his own behalf. Moreover, a layperson who receives compensation for such legal services may not rely upon the “pro se” exception. The receipt of compensation is conclusive evidence that the layperson is not merely acting for himself but has assumed the additional burden of acting for another.

Great Western, 91 Wn.2d at 56-57 (citations omitted) (emphasis omitted). Thus, the court held that by charging a fee, Great Western “removed itself from the protection afforded by our ‘pro se’ exception to the general prohibition against the unauthorized practice of law.” Great Western, 91 Wn.2d at 57-58. The Perkinses contend that Great Western is squarely on point. However, our next unauthorized practice of law case cogently explains how the fee issue in Great Western was irrelevant to the unauthorized practice of law question.

In Hagen & Van Camp, P.S. v. Kassler Escrow, Inc., 96 Wn.2d 443, 635 P.2d 730 (1981), a law firm sued to enjoin an escrow company from preparing earnest money agreements and other acts as the unauthorized practice of law. The unanimous court rejected the proposition that, by not charging a fee, the escrow company’s actions were authorized under Great Western.

Petitioner relies heavily upon the fact that no additional charges were made for the services. Petitioner relies on the holding in Great Western to support this aspect of its argument. Such reliance is misplaced. Great Western did charge a fee so the court expressly limited its holding in the case to a situation where a fee is charged. The fact of compensation is irrelevant, however, except as to provide evidence of the fact that a lay person is acting for another. We have clearly held that it is the nature and character of the service rendered rather than the fact of compensation for it that governs.

Kassler Escrow, 96 Wn.2d at 451 (citations omitted) (emphasis added).

Notwithstanding this unambiguous language, both the Perkinses and amicus WSBA rely on our next and last unauthorized practice of law case, Cultum v. Heritage House Realtors, Inc., 103 Wn.2d 623, 694 P.2d 630 (1985), as further support for the proposition that charging a fee for the preparation of legal documents by lay persons is unauthorized.

In Cultum, a real estate agent prepared an earnest money agreement setting forth the buyer’s offer to purchase a home. The buyer asked the agent to insert a structural inspection contingency clause. The agent inserted the standard clause used by her employer. Both the clause and the preprinted earnest money agreement were drafted by lawyers. After the inspection revealed some minor problems, the buyer sought to rescind the offer pursuant to the inspection contingency based on her subjective dissatisfaction. The seller refused to rescind and construed the inspection contingency to require major structural defects based on an objective standard before it could be invoked. The buyer finally recovered her earnest money and sued the real estate company, seeking among other things an injunction against their alleged unauthorized practice of law.

The court held that, although the real estate agent engaged in the practice of law, her actions were not unauthorized. The court was divided four to four, however, on the rationale. The lead opinion ruled narrowly:

It should be emphasized that the holding in this case is limited in scope. Our decision provides that a real estate broker or salesperson is permitted to complete simple printed standardized real estate forms, which forms must be approved by a lawyer, it being understood that these forms shall not be used for other than simple real estate transactions which arise in the usual course of the broker’s business and that such forms will be used only in connection with real estate transactions actually handled by such broker or salesperson as a broker or salesperson and then without charge for the simple service of completing the forms.

Cultum, 103 Wn.2d at 630 (emphasis added). The Perkinses emphasize the “without charge” language without discussion, apparently assuming that a charge would render the action unauthorized. Br. of Appellants at 22. Amicus WSBA similarly suggests that the Cultum court relied on the fact that there was no separate charge levied. Br. of Amicus Curiae WSBA at 13. Both the Perkinses and the WSBA are mistaken.

The lead opinion necessarily confined its holding to the facts of the case. The realty company did not charge a fee; therefore, the court could only have speculated in dictum whether the charging of a fee would have rendered the realty company’s actions unauthorized. The court, therefore, properly left open the question of. whether a fee would have changed the result.

Moreover, any suggestion in the lead opinion that the fee issue was dispositive failed to carry a majority. Granted, four justices reasoned that “[t]he fact that brokers and salespersons will complete these forms at no extra charge, whereas attorneys would charge an additional fee, weighs heavily toward allowing this choice.” Cultum, 103 Wn.2d at 628-29. However, the other four justices agreed in the result only and disagreed with the lead opinion’s rationale. “[T]he fact that the agreement is completed without charge is irrelevant.” Cultum, 103 Wn.2d at 634 (Brachtenbach, J., concurring). Thus, Cultum does not stand for the proposition that charging a fee for the lay preparation of legal documents amounts to the unauthorized practice of law.

The rule remains that “[t]he nature and character of the service rendered, rather than the fact of compensation for it, should govern its classification and relation to the public interest.” WSBA v. WAR, 41 Wn.2d at 699; see also Great Western, 91 Wn.2d at 54 (“It is the nature and character of the service performed which governs whether given activities constitute the practice of law.”). CTX is not asserting its actions are authorized under the pro se exception; therefore, it unnecessary to look to the document fee to rebut a claim that CTX was acting solely on its behalf. Thus, whether CTX charged a fee is irrelevant to the question of whether they have engaged in the unauthorized practice of law. Instead, the essential inquiry is whether a mortgage lender is authorized to prepare the legal documents that are ordinarily incident to its financing activities when lay employees participating in such document preparation do not exercise any legal discretion.

Ill

CTX argues that its activities are authorized because lay employees do not exercise any legal discretion during their participation in the document preparation process. Thus, there is no risk of public harm from incompetent lawyering. We are persuaded that this position is consistent with our historical approach to the unauthorized practice of law.

Admittedly, we have often spoken broadly in condemning the practice of lay persons selecting and completing pre-printed form legal documents. However, this broad language must be considered in light of the particular circumstances at issue in those cases. Our underlying goal in unauthorized practice of law cases has always been the promotion of the public interest. Consequently, we have prohibited only those activities that involved the lay exercise of legal discretion because of the potential for public harm.

In WSBA v. WAR, this court rejected a broker’s argument that he had merely filled in the blanks in form legal documents, stating:

The representation of qualification and competence to do work of a legal nature and to advise upon that subject ... is implicit in the preparation of any legal document by the selection and completion of a blank form ....

WSBA v. WAR, 41 Wn.2d at 701. Despite this broad language, however, the court ruled very narrowly, enjoining the broker from doing only the type of work he performed with one particular deed. WSBA v. WAR, 41 Wn.2d at 701. In that deed he had drafted and inserted an ambiguous clause regarding mortgages to which the property was subject. WSBA v. WAR, 41 Wn.2d at 698. The concurrence pointed out that by limiting its holding, the majority tacitly approved of the broker’s other activities in which he filled in the names of parties and other objective information. WSBA v. WAR, 41 Wn.2d at 702 (Donworth, J., concurring). This result is not surprising given that the court’s guiding principle was to protect against “[t]he probability of injurious consequences from the acts of the unskilled.” WSBA v. WAR, 41 Wn.2d at 699. The potential harm of allowing lay persons to draft clauses was manifested in the uncertainty regarding the number and value of mortgages to which the property was subject. In contrast, the court allowed the mere inputting of objective data because of the unlikelihood that such action would significantly prejudice individuals’ legal interests.

In In re Discipline of Droker, 59 Wn.2d 707, 370 P.2d 242 (1962), the court held that lay employees of an escrow company engaged in the unauthorized practice of law by completing form legal documents. The court observed that “the preparation of a legal form is doing work of a legal nature, and if done by a . . . layman, may be enjoined.” Broker, 59 Wn.2d at 719. Yet, the lay employees went far beyond entering objective data into these forms. The employees drafted escrow instructions, selected the forms they deemed appropriate for various transactions, drafted earnest-money receipts, drafted clauses modifying form legal documents, and explained to buyers and sellers the meaning and effect of the documents they drafted. Droker, 59 Wn.2d at 719. It is self-evident that the public policy concern of guarding against incompetent lawyering is well served by our prohibiting such activities by lay persons.

In Great Western, this court held that a bank had engaged in the unauthorized practice of law by permitting a lay employee to select and complete form legal documents involved in closing both the real estate loan between it and the buyer, and the sale between the buyer and the seller. The court concluded that “the selection and completion of form legal documents, or the drafting of such documents, including deeds, mortgages, deeds of trust, promissory notes and agreements modifying these documents constitutes the practice of law.” Great Western, 91 Wn.2d at 55. Yet, the lay employee at issue went well beyond the mere inputting of data. She modified the form deeds of trust and promissory notes, and closed both the loan and the sale between the purchaser and seller. Great Western, 91 Wn.2d at 50. The court observed that “[t]he services at issue here are ordinarily performed by licensed attorneys, involve legal rights and obligations, and by their very nature involve the practice of law.” Great Western, 91 Wn.2d at 55. The court’s decision rested firmly on the public interest rationale.

It is our duty 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.

Great Western, 91 Wn.2d at 60-61 (citation omitted). This same public policy language guided our two subsequent unauthorized practice of law cases. See Hagen & Van Camp, P.S. v. Kassler Escrow, Inc., 96 Wn.2d 443, 447, 635 P.2d 730 (1981); Cultum v. Heritage House Realtors, Inc., 103 Wn.2d 623, 627, 694 P.2d 630 (1985).

The deciding principle in each of these cases is our duty to protect the public from the potential harm of the lay exercise of legal discretion. But we have never prohibited the mere clerical entry of data into a printed legal form.⁴ Indeed, we have tacitly authorized lay persons to fill in the names of parties, the legal descriptions of properties, and other similar information* ⁵and have expressly left open whether mere scrivening would constitute the unauthorized practice of law.⁶

Most recently, we have even authorized nonlawyers to exercise some legal discretion by allowing them to insert lawyer-drafted clauses into lawyer-drafted real estate forms. Cultum, 103 Wn.2d at 630. The Cultum lead opinion was persuaded that the strong public interest in convenience and limiting costs weighed in favor of allowing real estate professionals to prepare the legal instruments necessary for conveyancing. Cultum, 103 Wn.2d at 628. Likewise, the concurrence’s pragmatic concern that certain real estate practices are ££fact[s] of life in the real world” implicitly recognizes the logistical and financial burden on the public that would result from imposing lawyers on every stage of real estate conveyancing. Cultum, 103 Wn.2d at 636 (Brachtenbach, J., concurring). Thus, our decision should also be guided by the public interest in convenience and low cost.

The resolution of this case, therefore, depends on balancing the competing public interests of (1) protecting the public from the harm of the lay exercise of legal discretion and (2) promoting convenience and low cost. Washington unauthorized practice of law cases are replete with instances of lay exercise of legal discretion causing public harm.⁷ Yet, when the role of lay persons in selecting and completing form legal documents is reduced to entering objective data, the lay person’s actions are unlikely to result in the uncertain legal rights with which this court has been concerned. Thus, the risk of public harm is low. Indeed, the Perkinses have never alleged that their loan documents were deficiently drafted or that their legal rights were prejudiced in the least.

Moreover, permitting mortgage lenders to prepare loan documents in the way the CTX does relieves borrowers of the cost and inconvenience of having attorneys prepare their loan documents. Ironically, were the Perkinses to prevail, future borrowers would bear the additional cost of having attorneys prepare their loan documents, which would likely exceed that portion of the Perkinses’ document preparation fee attributable to legal documents.

Thus, we hold that, whether or not a fee is charged, lenders are authorized to prepare the types of legal documents that are ordinarily incident to their financing activities when lay employees participating in such document preparation do not exercise any legal discretion. Moreover, even though the Perkinses have not alleged any harm, in order to fully safeguard the public interest we further hold that lenders must comply with the standard of care of a practicing attorney when preparing such documents. See Cultum, 103 Wn.2d at 631; Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 586-87, 675 F.2d 193 (1983). Our result necessarily disposes of the CPA claim. The trial court dismissal of the Perkinses’ class action is affirmed.

Doluver, Smith, Guy, Johnson, Talmadge, and Sanders, JJ., concur.

1 Decl. of Larry J. Smith Re Exs. in Supp. of Def s Summ. J. Mot. at Ex. A-19 (this declaration is designated part of the Clerk’s Papers, but was transmitted as an original without Clerk’s Papers indexing numbers).

2 CTX prepared the following documents: (1) Uniform Residential Loan Application; (2) Truth in Lending Disclosure Statement; (3) Adjustable Rate Mortgage Truth in Lending Disclosure; (4) Authorizations to Verify Employment, Income, Asset Balances and Credit History; (5) Good Faith Estimate of Charges; (6) Request for Verification of Deposit; (7) Request for Verification of Employment; (8) Request for Verification of Rent or Mortgage Account; (9) Appraisal Order Form; (10); Request for Verification of Deposit; (11) Tax Information Sheet; (12) Interoffice Communication; (13) Underwriting Action; (14) Assignment of Lien to Texas Commerce Bank; (15) Assignment of Lien to Fleet Real Estate Funding Corp.; (16) Assignment of Lien (Fleet Real Estate to the Federal National Mortgage Association (FNMA); (17) Mortgage Loan Closing Instructions; (18) Adjustable Rate Note; (19) Adjustable Rate Rider; (20) Deed of Trust; (21) Property Appraisal Disclaimer; (22) Borrower’s Affidavit and Agreement; (23) Borrower’s Agreement to Correct Errors and Omissions; (24) Signature Certifications; (25) Identity Certificates; (26) Seller’s and/or Purchaser’s Statement; (27) Truth in Lending Disclosure Statement; (28) Calculation of Amount Financed for Truth in Lending Disclosure; (29) Request for Taxpayer Identification Number and Certification; (30) Occupancy Affidavit and Financial Status; (31) Errors and Missing Document Report; (32) Letter Regarding Physical Defects Corrected; (33) First Payment Letter; (34) Conventional Delivery Transmittal; (35) Hazard/Flood Insurance Endorsement Letter; (36) Fleet Funding Delivery Transmittal; (37) Transmittal Summary to FNMA.

3 Br. of Appellant at 9 (“What converts the practice from authorized under the pro se exception (as CTX is a party to the loan and authorized to prepare its own documents) to the unauthorized practice of law is the charging of a fee to the plaintiffs of $250.00.”) (emphasis omitted); Br. of Amicus Curiae WSBA at 18. (“CTX Could Use Non-Lawyer Employees To Complete Legal Documents Under The Pro Se Exception If CTX Did Not Charge A Fee For Legal Services.”) (emphasis omitted).

4 The dissent argues that Cultum v. Heritage House Realtors, Inc., 103 Wn.2d 623, 694 P.2d 630 (1985) demonstrates that the entry of customer information into standardized legal forms requires the exercise of legal discretion. Dissent at 110. Yet, in Cultum, a real estate agent did not merely enter customer information into a standardized earnest money agreement. Rather, the agent inserted an inspection contingency clause, which purported to establish the legal basis upon which the purchaser could rescind the agreement.

5 Washington State Bar Ass’n v. Washington Ass’n of Realtors, 41 Wn.2d 697, 702, 251 F.2d 619 (1952) (Donworth, J., concurring).

6 Washington State Bar Ass’n v. Great W. Union Fed. Sav. & Loan Ass’n, 91 Wn.2d 48, 60, 586 F.2d 870 (1978) (Great Western). Despite the Ferkinses’ suggestion that Great Western rejected the “scrivener defense,” Br. of Appellants at 14, the court expressly declined to address this amicus argument because “[t]he unchallenged findings of fact demonstrate that Great Western did in fact select the deed form and thus did not act merely as a ‘scrivener.’ ” Great Western, 91 Wn.2d at 60.

7 See Cultum, 103 Wn.2d at 626 (buyer’s earnest money refund delayed because real estate agent prepared ambiguous contingency clause); Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 591-92, 675 F.2d 193 (1983) (seller unable to execute against property upon buyer default because escrow agent prepared unsecured promissory note); Hogan v. Monroe, 38 Wn. App. 60, 62, 684 F.2d 757 (1984) (lessors’ repossession rights inadequately protected by lease-option agreement drafted by real estate agent); Hecomovich v. Nielsen, 10 Wn. App. 563, 518 F.2d 1081 (seller unable to recover personalty upon buyer default because real estate agent failed to provide for personalty in real estate sales contract), review denied, 83 Wn.2d 1012 (1974).