Commissioner of Financial Regulation v. Brown, Brown & Brown, P.C., et al. (Ct. of Appeals)

Filed: August 19, 2016

Opinion by: J. McDonald

Holding: A Virginia-based law firm and its managing partner were not covered by the attorney exemption to the Maryland Credit Services Business Act (“MCSBA”), which regulates the “credit services business,” because they regularly and continually engaged in the credit services business by consulting with several hundred Maryland homeowners confronted with the possibility of foreclosure and entered into paid agreements with 57 of them to renegotiate their mortgage loans over the course of nine months.

Facts: A small Virginia law firm accepted hundreds of referrals of Maryland homeowners from a Virginia-based consulting business that advertised in Spanish-language media and accepted fees to analyze a homeowner’s mortgage status. The law firm and its sole shareholder and managing partner, licensed in Virginia and D.C., but not Maryland, employed in succession two Maryland attorneys to meet with Maryland clients. The first of these Maryland attorneys (the "Maryland attorney") estimated that the majority of his workload was related to the Maryland homeowners by the time he left the firm. When the Maryland attorneys were unavailable, the managing partner or another D.C. attorney met with the homeowners.

The homeowners, mostly native Spanish-speakers who spoke little or no English, entered into retainer agreements with the law firm, paying up to $7,500 up front in exchange for negotiations with the lender to modify their loan, foreclosure defense, and possible litigation. The law firm made little effort to actually renegotiate the loans and did not obtain a loan modification for any of the homeowners.  One couple, who paid fees to the consulting company and the law firm and eventually lost their home in a foreclosure, lodged a Complaint with Commissioner of Financial Regulation.

The Commissioner investigated and issued a cease and desist order forcing the law firm to terminate its agreements with Maryland homeowners. The Maryland attorney settled but the law firm and its managing partner requested a contested hearing. The Commissioner referred the matter to an Administrative Law Judge ("ALJ"), who issued a proposed decision concluding that they had willfully violated the statute and recommending a final cease and desist order and monetary penalties. The Deputy Commissioner, the final decision-maker, adopted the ALJ’s holdings. The law firm and its managing partner requested an exceptions hearing. The Deputy Commissioner then issued a final order finding that they violated the statute and that the agreements were void, issued a cease and desist, and held them jointly and severally liable for a civil monetary penalty of $114,000 and $720,600 in treble damages. The law firm and its managing partner appealed in the Circuit Court for Baltimore County, which reversed the Commissioner’s decision, holding that their activities did not constitute “credit services business.” The Court of Special Appeals affirmed.

The question on appeal was whether the law firm and its managing partner conducted “credit services business” under the MCSBA, and if so, whether the attorney exemption applied. If they did conduct such services and the exemption did not apply, then they should have obtained a license and complied with the statute's other various requirements. It is undisputed that they did not do so.

Analysis: The MCSBA applies to any person (including legal or commercial entities) who, with respect to the extension of credit by others, sells, provides, or performs (or represents that it will do so) in exchange for consideration the enumerated services, which include obtaining a credit extension for a consumer and providing advice or assistance regarding obtaining a credit extension or improving his or her credit record. CL § 14-1901. A credit extension is defined as “the right to defer a payment of debt, or to incur debt and defer its payment, offered or granted primarily for personal, family or household purposes.” CL § 14-1901.

Providing these services qualifies one as a “credit services business.” Ten categories of individuals are exempted from the definition of “credit services business.” One category includes individuals who meet the following three conditions: is licensed as an attorney in Maryland, renders services within the course and scope of legal practice, and does not engage in the credit services business on a regular and continuing basis.

Here, the law firm and its managing partner accepted thousands in fees in exchange for renegotiating the terms of mortgage loans, which means seeking a modification of principal or interest or repayment term, and inevitably means seeking some form of deferral. Thus, renegotiating the terms of a distressed home mortgage loan means obtaining a credit extension for personal, family or household purposes, as defined under CL § 14-1901(e)(1),(f). As such, the law firm and its managing partner met the general definition under the statute. An analysis of the legislative history of the statute confirms that it is intended to provide broad protection to the consumers of credit services, and is not limited to merely credit repair agencies or lenders, as the law firm and its managing partner had argued.

As to the attorney exemption, the law firm and its managing partner did offer services on a “regular and continuing basis.” Though this term is undefined, the consultations and agreements were a very significant part of the law firm’s business and accounted for most of the work of its Maryland-licensed attorney by the time he left the law firm. The Court found hundreds of consultations and 57 agreements over the course of nine months to be significant. Notably, the Court pointed out that the ALJ had suggested that in less stark cases, there may be situations where “there is a significant question at what point an attorney who frequently provides such services has crossed the line into providing ‘regular and continuing’ credit services.” Nonetheless, the Court noted that this case sharply contrasts with that of an attorney providing occasional services to an individual client, for example. Ultimately, the mere fact that one is an attorney does not automatically qualify one for the exemption.

The Court affirmed the Commissioner’s holding that the MCSBA applied to the law firm and its managing partner's activities and that the attorney exemption did not apply because they conducted their activities on a regular and continuing basis. Because the issue of whether their violations were or were not willful was not argued on appeal, the Court remanded to the Circuit Court on that issue. 

The full opinion is available in PDF.