King v. First Capital Financial Services Corp.

State: Illinois

Court: 3rd District Appellate

Docket No: 3-02-0488 Rel

Case Date: 09/26/2003

No. 3--02--0488

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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

WILLARD J. KING, JR., and
SHEILA KING

Plaintiffs--Appellees,

FIRST CAPITAL FINANCIAL
SERVICES CORP. d/b/a FCF
Funding

Defendant--Appellant.

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Appeal from the Circuit Court
for the 14th Judicial Circuit,
Rock Island County, Illinois

No. 01--L--189

Honorable Lori Lefstein,
Judge, Presiding

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PRESIDING JUSTICE McDADE delivered the opinion of the court:

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Defendant, First Capital Financial Services Corp. (FirstCapital), seeks, by interlocutory appeal, review of a decision ofthe circuit court of Rock Island County denying its motion todismiss two counts of plaintiffs' complaint charging defendantwith the unauthorized practice of law. The appeal asks (1)whether a lender that prepares documents for use in loantransactions in which the lender is involved and charges theborrower for the preparation of those documents is engaged in theunauthorized practice of law, and (2) assuming arguendo that theanswer to the first issue is "yes," whether a private cause ofaction exists for the lender's unauthorized practice of law. Wefind that the challenged actions are not the unauthorizedpractice of law. Having so found, we do not reach the secondcertified question. The matter is remanded to the circuit courtfor further proceedings consistent with this opinion.

BACKGROUND

On December 29, 2000, the plaintiffs, Sheila and WillardKing, 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 administrativefees, one of which was $225 for "document preparation." The feewas charged by First Capital in order to recoup costs incurred inthe preparation of "the note and related documents."

After they received the mortgage, the plaintiffs filed afour-count complaint against First Capital, alleging: (1) anindividual claim that First Capital violated the Truth in LendingAct (15 U.S.C.