Miller v. Vance
| Decision Date | 18 May 1984 |
| Docket Number | No. 483S146,483S146 |
| Citation | 463 N.E.2d 250 |
| Parties | Charles E. MILLER, Kay F. Miller, Appellants (Plaintiffs below), v. Richard G. VANCE, Vicki J. Vance, Madison County Bank and Trust Company, Anderson Banking Company, Floyd Jackey, Betty A. Vance, James L. Robinson, June L. Robinson, Dewain McCarroll, Cynthia D. McCarroll, Appellees (Defendants below). |
| Court | Indiana Supreme Court |
James E. Freeman, Jr., Jonathan R. Builta, Sansberry, Dickmann, Dickmann & Freeman, Anderson, for appellants.
Stephen R. Hardacre, Busby, Austin, Cooper & Farr, Anderson, for Anderson Banking Co.
John E. Eisele, Anderson, for Madison County Bank & Trust Co.
In September, 1980, the plaintiffs-appellants, Charles and Kay Miller, took two mortgages on certain real estate owned by Richard and Vicki Vance to secure pre-existing debts owed them by the Vances. The Millers took the mortgages with the knowledge that there were already three underlying mortgages on the Vances' property. The primary mortgage was held by Anderson Banking Company (ABC) and had been recorded on December 6, 1972. A second mortgage was held by the Madison County Bank and Trust Company (MCBT) and was recorded on November 27, 1978, but covered only a one-half undivided interest in the property. A third mortgage was held by Floyd and Margaret Jackey and was recorded on October 25, 1979, and also covered only a one-half undivided interest in the property.
The Millers brought a complaint to foreclose their mortgages on Vances' property on September 19, 1980, three days after their mortgages were recorded. They did not question the validity or priority of the Jackeys' mortgage, but they argued that the mortgages of ABC and MCBT were void and unenforceable because both mortgages were prepared by bank employees who were not attorneys. The trial court entered a judgment upholding the validity and priority of the two banks' mortgages and the Millers now appeal from that judgment.
This Court has exclusive jurisdiction in this case since the basic question concerns the alleged unauthorized practice of law by the bank employees in filling out the mortgage forms, and this Court is charged with the duty of supervising and controlling the practice of law in this state. Ind. Const. Art. 7 Sec. 4; Ind.R.Ap.P. 4(A)(3); State v. Indiana Real Estate Association, Inc., (1963) 244 Ind. 214, 191 N.E.2d 711; Miller v. Credit Bureau, (1973) 156 Ind.App. 341, 296 N.E.2d 673.
The Millers now allege that the preparation of a mortgage instrument by a bank employee who is not an attorney constitutes the unauthorized practice of law. This Court has not attempted to provide a comprehensive definition of what constitutes the practice of law because of the infinite variety of fact situations which must each be judged according to its own specific circumstances. However, we have stated that one of the basic elements in the practice of law is the giving of legal advice:
Matter of Perrello, (1979) 270 Ind. 390, 398, 386 N.E.2d 174, 179.
Furthermore, we have found the filling in of blanks in legal instruments is not generally considered to be the practice of law:
State v. Indiana Real Estate Assn., Inc., 244 Ind. at 220, 191 N.E.2d at 715.
We specifically considered the situation of real estate brokers and agents and found that their filling in of the blanks of many legal instruments used in real estate transactions, with the single express exception of the execution of deeds, did not constitute the practice of law. Id., 244 Ind. 226, 191 N.E.2d 717. However, in another case, we found that a layman who was paid to negotiate for another the settlement of a claim for loss or damages and was not an employee or agent of an insurance company was engaged in the unauthorized practice of law. Professional Adjusters, Inc. v. Tandon, (1982) Ind., 433 N.E.2d 779.
In the instant case, appellants ask us to consider the situation of lay employees of banks who prepare mortgage instruments used by the banks and their client mortgagors. They argue that this Court has limited the types of legal instruments which may be executed by real estate brokers to those specifically enumerated in State v. Indiana Real Estate Association, Inc. and that we stated that the execution of legal instruments other than those listed was limited to members of the legal profession. They point out that mortgages were not among the documents which we specifically stated could be prepared by real estate brokers and agents.
We find these arguments are not applicable to the facts of this case, as we are here dealing with bank employees rather than real estate agents. Furthermore, our opinion contained certain qualifying language:
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