Consumer Attorney Services, P.A., The McCann Law Group LLP, and Brenda L. McCann, Individually and as Owner and/or Officer of Consumer Attorney Services, P.A. v. State of Indiana
2017 Ind. LEXIS 210
| Ind. | 2017Background
- Consumer Attorney Services (CAS), a Florida corporation operated by attorney Brenda McCann, contracted with Indiana lawyers under “Partnership,” “Associate,” and “Of Counsel” agreements to provide foreclosure and loan-modification services; most client work and intake was handled by CAS centrally.
- Indiana homeowners complained to the Attorney General that they had little or no contact with Indiana-licensed attorneys and received only perfunctory legal services; no investigated homeowners obtained loan modifications.
- The State sued CAS, The McCann Law Group, and McCann under four Indiana consumer-protection statutes: the Credit Services Organizations Act (CSOA), the Mortgage Rescue Protection Fraud Act (MRPFA), the Home Loan Practices Act (HLPA), and the Deceptive Consumer Sales Act (DCSA).
- Defendants moved for summary judgment, asserting statutory exemptions for attorneys (and, they argued, law firms) under the CSOA and MRPFA and claiming those exemptions shielded them from the related HLPA and DCSA claims.
- The trial court denied summary judgment; the Court of Appeals partly reversed; the Indiana Supreme Court granted transfer and considered whether the statutory exemptions apply to law firms and to McCann.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CSOA attorney-exemption extends to law firms | Exemption should be read narrowly; firms are not exempt | Exemption covers any “person” (including corporations/firm) admitted to practice | Exemption applies only to individual attorneys acting as attorneys, not to law firms |
| Whether MRPFA attorney-exemption extends to law firms | MRPFA exempts only individual attorneys licensed in Indiana | Defendants: similar language implies firm exemption | MRPFA unambiguously exempts individual attorneys only, not firms |
| Whether HLPA and DCSA claims are exempt because underlying statutes (CSOA/MRPFA) exempt attorneys/firms | State: no independent exemption; cannot piggyback if primary statutes don’t exempt firms | Defendants: violations arise from regulated attorney activity so should be exempt | HLPA and DCSA exemptions do not apply because no firm exemption exists under CSOA/MRPFA |
| Whether Brenda McCann (not licensed in Indiana) is exempt | State: McCann not licensed in Indiana so cannot claim attorney exemptions | McCann: claimed entitlement to exemptions by association with CAS | McCann cannot claim any statutory attorney exemptions because she was not licensed in Indiana |
Key Cases Cited
- Indiana Restorative Dentistry, P.C. v. Laven Ins. Agency, Inc., 27 N.E.3d 260 (Ind. 2015) (standards for summary judgment review)
- ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192 (Ind. 2016) (use of statutory construction to discern legislative intent)
- Hays v. Ruther, 313 P.3d 782 (Kan. 2013) (construing similarly worded CSOA exemption to include law firms)
- Walczak v. Labor Works–Ft. Wayne LLC, 983 N.E.2d 1146 (Ind. 2013) (canon to avoid absurd statutory results)
- Klotz v. Hoyt, 900 N.E.2d 1 (Ind. 2009) (statutes in pari materia should be construed together)
- Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327 (Ind. 2013) (DCSA to be liberally construed to protect consumers)