Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Quicken Loans, Inc. v. Wilson

Court of Appeals of South Carolina

January 9, 2019

Quicken Loans, Inc., Appellant,
v.
Wayne D. Wilson; Calvin O. Wilson, III; any other Heirs-in-Law or devisees of Ezekiel (Ellen) T. Wilson, deceased, their heirs, personal representatives, administrators, successors and assigns, and all other persons entitled to claim through them; all unknown persons with any right, title or interests in the real estate described herein; also any persons who may be in a class designated as John Doe; any unknown minors or persons under a disability being a class designated as Richard Roe; and Park Sterling Bank, Respondents. Appellate Case No. 2016-001214

          Heard September 10, 2018

          Appeal From Barnwell County James Martin Harvey, Jr., Special Referee

          Benjamin Rush Smith, III, Allen Mattison Bogan, Carmen Harper Thomas, and Brian Montgomery Barnwell, all of Nelson Mullins Riley & Scarborough, LLP, of Columbia, for Appellant.

          Charles L. Dibble, of Dibble Law Offices, and Steven W. Hamm, of Richardson Plowden & Robinson, PA, both of Columbia, Daniel Webster Williams, of Bedingfield & Williams, of Barnwell, and C. Bradley Hutto, of Williams & Williams, of Orangeburg, all for Respondents.

          Carolyn Grube Lybarker and Kelly H. Rainsford, both of Columbia, for Amicus Curiae South Carolina Department of Consumer Affairs.

          SHORT, J

         Quicken Loans, Inc. (Quicken) filed this foreclosure action against Wayne D. Wilson; Calvin O. Wilson, III; any other Heirs-in-Law or devisees of Ezekiel (Ellen) T. Wilson, deceased, their heirs, personal representatives, administrators, successors and assigns, and all other persons entitled to claim through them; all unknown persons with any right, title or interests in the real estate described herein; also any persons who may be in a class designated as John Doe; any unknown minors or persons under a disability being a class designated as Richard Roe; and Park Sterling Bank (collectively, Respondent). Quicken appeals the special referee's order granting Respondent's motion for partial summary judgment, arguing the special referee erred in (1) holding Quicken violated the Attorney Preference Statute (the Act); (2) finding unconscionability is a remedy for a violation of the Act; (3) failing to find Respondent's counterclaim time-barred by the statute of limitations; (4) denying Quicken's jury trial demand and motion to amend the pleadings; and (5) relying on confidential information subject to a protective order in an unrelated case. We reverse.

         BACKGROUND FACTS

         On November 7, 2011, Calvin and Ezekiel (Ellen) T. Wilson applied to Quicken for a loan to be secured by a mortgage on their residence. Mr. Wilson died on September 20, 2013, and Mrs. Wilson died on November 17, 2014. Wayne D. Wilson is the personal representative of Mrs. Wilson's estate.

         Quicken telephonically takes information for the loan application from the borrower. Quicken's operating system prompts Quicken's banker to ask the borrower the following question, "Will the borrower select legal counsel to represent them in this transaction?" If the borrower responds, "no," the attorney preference form is prepopulated to read, "I/We will not use the services of legal counsel." There is no list of acceptable attorneys provided to the borrower in the event he does not have a preference. If the borrower responds, "yes," the system populates the form to read: "Please contact lender with preference." Quicken's system does not permit an attorney name to be entered at the time of the telephonic application. The system cannot generate an application package without asking the attorney preference question. Once the application is completed, it is sent electronically or by mail to the borrower. Any applications in which the form is prepopulated with "I/We will not use the services of legal counsel" is forwarded to Quicken's affiliate company, Title Source, Inc., which acts as the settlement agent in the transaction and subcontracts with attorneys to perform the settlement services.

         The Wilsons signed the prepopulated form, entitled "Attorney/Insurance Preference Check List," and declined services of legal counsel. This form appears nearly identical to the form promulgated by the South Carolina Department of Consumer Affairs (DOCA), except Quicken's form is prepopulated with responses. Similar to the DOCA form, Part 1 of the Quicken form states, "I(We) have been informed by the lender that I (we) have a right to select legal counsel to represent me (us) in all matters of this transaction relating to the closing of the loan." Unlike the DOCA form, however, Part 1(a) of the Quicken form is prepopulated to read, "I/We will not use the services of legal counsel." Under Part 1(b), the Quicken form, similar to the DOCA form, initially states, "Having been informed of this right, and having no preference, I asked for assistance from the lender and was referred to a list of acceptable attorneys. From that list I select: . . . ." Unlike the DOCA form, which provides blank lines to fill in an attorney's name and the borrower's signature, the Quicken form is prepopulated with the responses, "Not Applicable."

         Quicken presented the affidavit of Carlton D. Robinson, the closing attorney, who averred he explained it was his practice to explain the legal effect of the Attorney/Insurance Preference Checklist to borrowers, and he would not have proceeded with the closing if the Wilsons had any dissatisfaction with him representing them during the closing. The transaction was completed on December 14, 2011.

         Quicken filed this mortgage foreclosure action in March 2015. Respondent answered and counterclaimed, arguing Quicken waived its right to foreclose by using a prepopulated form for the loan and mortgage in violation of South Carolina common law and statutes.[1] Quicken filed an answer to the counterclaim, denying the allegations.

         Quicken moved for an order of reference to the special referee, which was granted on September 1, 2015. Quicken subsequently demanded a jury trial and moved to transfer the case to the general docket. Respondent moved for partial summary judgment, arguing it was entitled to judgment as a matter of law based on Quicken's use, at the closing of the loan and mortgage, of an attorney preference form that violated South Carolina law. Quicken cross-moved for summary judgment and responded to the motion, arguing (1) Respondent's claims were barred by the statute of limitations; (2) it complied with the statute governing the attorney preference form; (3) an alleged violation of the statute does not render the note and mortgage unconscionable; (4) Respondent could not establish unconscionability in any ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.