South Carolina

Hobcaw Barony owner claims title to North Inlet

Standard
hobcaw-church

Image from south-carolina-plantations.com

I grew up in Georgetown, SC, and enjoyed visiting the beach with my family on Pawleys Island. Between the City of Georgetown and the beautiful “arrogantly shabby” Pawleys beach lies Hobcaw Barony, a gorgeous stretch of land that was developed as a winter hunting resort by Bernard Baruch.

Bernard Baruch is a name South Carolinians should cherish. Baruch was born in Camden in 1870 and became a Wall Street financier, stock investor, philanthropist, statesman and political consultant. After his success in business, he devoted time advising war-time Presidents Woodrow Wilson and Franklin Roosevelt. He was a personal friend of Winston Churchill.

Between 1905 and 1907, Baruch purchased a total of 69,690 acres of the former 18th century Hobcaw Barony, consolidating 69 plantations located on the peninsula known as Waccamaw Neck between the Winyah Bay and the Atlantic Ocean. Famous visitors included presidents, royalty and world leaders.

For an interesting and entertaining history of the plantation properties developed by wealthy northerners in Georgetown County for hunting purposes, I highly recommend Columbian David Hodges’ book Sunset Lodge in Georgetown: The Story of a Madam.  Hodges is a frequent visitor to Georgetown who conducted extensive interviews and research about Hazel Weisse, who moved to Georgetown in 1936, when the International Paper Company plant was being built, and established a brothel to entertain the builders. Despite being illegal, the business remained open for thirty-three years until Weisse retired in 1969.  Do yourself a favor, South Carolinians. Read this book.

But I digress.

Hobcaw Barony is a treasure. Baruch’s daughter, Belle, established a foundation to use the property as an educational and research preserve. The property includes 37 historic buildings representing the 18th and 19th century rice growing industry and the 20th century winter hunting resort. Tours of the property are open to the public. My brother, Alec Tuten, is one of the tour guides who will happily talk your ear off given half a chance.

The picturesque property reminds me of George Washington’s home at Mount Vernon but, sadly, little or no funding was established to maintain the buildings, so they are not preserved to the standards of Mount Vernon. The grounds, on the other hand, are beautifully maintained. For example, both Carolina and Clemson have established coastal and marine sciences programs at Hobcaw. Wetlands, forests and coastal ecosystems are studied. The entire property was named to the National Register of Historic Places in 1994. I recommend a visit to this little-known local gem!

An interesting lawsuit is now brewing in Georgetown County involving the property of Hobcaw Barony and adjacent North Inlet. The Baruch Foundation is claiming title to 8,000 acres of marsh at North Inlet, a vast marshland that has always been used by the public for recreational purposes. The lawsuit claims title to the property by virtue of a Kings Grant.

stay tuned

Local gossip indicates the Foundation simply intends to clean up title issues and does not intent to preclude the public from enjoying the property. But the complaint reads like a normal quiet title action of marshland property and the locals are nervous. An easement has been suggested to resolve the conflict, but this suggestion has been rebuffed by the Foundation.

Stay tuned to learn more about what will happen to this slice of God’s country.

Recent HOA foreclosure case leads to new rule in Beaufort County

Standard

Master imposes rule based on Chief Justice Beatty’s concurring opinion

foreclosure notice

This blog recently discussed the remarkable homeowners’ association foreclosure case, Winrose Homeowners’ Association, Inc. v. Hale, South Carolina Supreme Court Opinion 27934 (December 18, 2019.) You can read the earlier blog here.

The case focused on the inadequacy of the foreclosure sales price and the business model of a third party to leverage a nominal debt to secure an exorbitant return from homeowners who fear eviction. I believe the case will require HOA foreclosure attorneys to rethink their approach going forward.

In his concurring opinion, Chief Justice Beatty said he would go a step further than the majority opinion and adopt the equity method of determining an adequate sales price for residential property in a foreclosure. The equity method compares the winning bid price to the equity in the property. The alternative debt method compares the total debt on the property to its fair market value.

The majority opinion stated that our courts have not established a bright-line rule for what percentage “shocks the conscience”, but a search of our South Carolina’s jurisprudence reveals that our courts have consistently held a price below ten percent definitely does. In this case, the debt method would have resulted in a ratio of 53.9 percent, while the equity method would have resulted in a ratio of 4.9%.

The new rule of the Beaufort County Master-in-Equity Marvin Dukes focuses on a totally separate issue in the case. The homeowners, who were in default, did not receive a notice of the date and time of the foreclosure sale. Judge Dukes’ office disseminated a message to foreclosure attorneys requiring new wording in foreclosure orders.

The new required wording entitled “Special Default Foreclosure Order and Sale Notice Service Instructions” reads as follows:

“That, in addition to all notices to the property owner(s) which are required by the  SCRCP or other law, in a case involving property owner’s SCRPC 55 default, or any other case or circumstances where property owner(s) would not ordinarily receive a copy of the Order of Foreclosure and/or Notice of Sale, the party seeking foreclosure (Foreclosing Party) shall, within 5 (five) days of the execution of this Order cause this Order and Notice of Sale (if available) to be served by US Mail upon said property owner(s).

An affidavit of such service shall be filed with the Clerk of Court expeditiously.

In cases where the Notice of Sale is executed later in time than the Order, service shall be accomplished separately, and shall be sent no later than 5 (five) days from receipt by the Foreclosing Party.”

I suspect additional guidance will be coming from our courts about whether the Winrose case will have broad application in foreclosure cases or be limited to its facts. I’m confident foreclosure attorneys feel they need more information.

Motley Fool: “Zillow Plans to Do to Real Estate What Amazon Did to Retailing”

Standard

Zillow Offers is not available in South Carolina yet, but it may be a matter of time

zillow logo magnified

This blog has promised to keep South Carolina dirt lawyers informed about the growing phenomenon of home “iBuying”. Please take a look at two recent articles from Motley Fool linked here.

One of the articles, entitled “Zillow Plans to Do to Real Estate What Amazon Did to Retailing”, indicates Zillow is aggressively taking on the neighborhood real estate broker. The other article, entitled “Why Zillow Wants to Pay More for Homes” indicates iBuying is a scale game, meaning the number of homeowners who accept Zillow’s offer increases dramatically with relatively small increases in price.

Zillow has been planning for this game for years. It already has a massive amount of traffic on its site and has accumulated an enormous amount of data. Go take a quick look at the data Zillow is showing about your own home!

To date, according to Motley Fool, Zillow faces intense competition from Opendoor, which leads the iBuying industry, already serving more than 40,000 customers. But Zillow is working hard to catch up. Opendoor operates in 21 markets. Zillow is in 17 of those markets, four additional markets, and plans to open in five more by the middle of 2020.

In early 2017, Zillow dipped its toe into the process of selling homes by launching a product it called “Instant Offers”. The product was initially tested in Las Vegas and Orlando and was described as a method for homeowners to sell their homes for a discounted price without the traditional complications of repairing, listing, staging and allowing for open houses.

The process started with a homeowner providing basic information via Internet about the home (square footage, number of bedrooms and bathrooms, and remodeling information) and uploading photos. The Zillow product then connected the homeowner with investors who buy homes in the area, and, typically, an all-cash offer was made by one or more of the investors. The homeowner paid no fee for the service and was not obligated to accept any offers. Zillow touted the product as a method to alleviate the seller’s stress and to allow the seller to close in a shorter time frame.

Other companies, Opendoor and Offerpad were already operating in this space at the time of the Zillow launch. The launch was called another example of technology disrupting the process of closing real estate transactions.

Real estate agents, of course, met the news with alarm. They said sellers would be suckered into making mistakes that might cost them the education of their kids, vacations or just the ability to sleep better at night because they have more money in their bank accounts. An online petition was initiated, asking the National Association of Realtors to threaten Zillow with being removed from access to listings. The NAR responded that it could not sponsor or encourage such a boycott.

Zillow has always stated publicly that it is not in the business of getting rid of real estate agents. Its executives called Zillow a media company, not a real estate company, and said it sold ads, not real estate. Even the Instant Offers program encouraged sellers to use a realtor even while avoiding the traditional listing and sales process. The question then became the amount of commission the real estate agent would earn for reduced services. When real estate agents initially complained about Instant Offers, Zillow responded that 70% of its revenue came from working with real estate agents.

In early 2018, however, Zillow announced that it would begin buying homes directly from sellers and then turning around and selling them. With this announcement, Zillow began selling ads and houses. Two test markets were announced, Las Vegas and Phoenix. Zillow said that when it buys homes, it will make the necessary repairs and updates and list the homes as quickly as possible. Zillow said local real estate agents would represent Zillow in the transactions. Zillow also announced in a press release that the vast majority of sellers who requested an Instant Offer ended up selling their homes with agents.

So far, nothing is in the works for South Carolina as far as we know, but since it is just next door in Atlanta and Charlotte, how long can it be?

Stay tuned for more news on this topic. Real estate lawyers will need to figure out how to remain in the game whether properties are sold through the Internet or not!

This scam hits home!

Standard

Two fugitives arrested in Murrells Inlet

One smart agent avoided involvement by placing a temporary block on her trust account

Warren and Frances Berkle

WBTW TV News 13 in Myrtle Beach reported on November 22 that two fugitives were arrested in Murrells Inlet. Warren Berkle and Frances Berkle were reported to have been wanted in several states at the time of their arrest.

According to the report, the Berkles had been living under false names and living in a house in Murrells Inlet in connection with a lease to purchase arrangement. Police said they received a call from the homeowner who said she had gone through an eviction process because the two were behind in their payments. She said she was concerned that they were not who they said they were, and were possibly squatting in her house.

WBTW reported that Warren Berkle was stopped by police when he was leaving the neighborhood. He had an expired Florida license plate, no insurance, and a driver’s license that was not in his name. A background check indicated Berkle had a valid license in Maryland and was wanted for extradition. A check on Frances Berkle indicated she was wanted in Florida and Pennsylvania.

Horry County police charged Warren Berkle with forgery and obtaining a signature or property under false pretenses, among other offenses. Frances Berkle was being held without bail as a fugitive.

Warren Berkle had pleaded guilty in 1992 to conspiracy to sell worthless insurance policies and mail fraud, a multimillion-dollar scam. According to an article in the Baltimore Sun, prosecutors said around 800 insurance policies were sold and premiums were collected using false records and without licenses.

Our very astute agent had been contacted by Warren Berkle numerous times, seeking to wire funds into her trust account to accommodate a real estate transaction. Our agent had “such a bad feeling” about Mr. Berkle that she put a block on her trust account just a short time before he tried to wire funds into her account. This occurred after she told him she was not going to be able to work with him.  She said he seemed so insistent and so evasive when she asked questions that she could not trust him to do business with him.

We are so glad her fraud radar was working so well! She paid attention to clues that saved her from a disaster in her trust account!

SC Supreme Court rule change affects every lawyer with a trust account

Standard

Make one simple change to stay in compliance

change ahead sign

On October 23, our Supreme Court implemented several changes to the South Carolina Appellate Court Rules dealing with lawyer and judicial disciplinary rules enforcement procedures. If things go well in our respective practices, most of us will never have to study the rule changes.

But one change affects every lawyer with a trust account.

Rule 1.15(h) of the Rules of Professional Conduct has been amended to state that every lawyer maintaining a trust account must file a written directive requiring his or her financial institution to report to the Office of Disciplinary Counsel, rather than to the Commission on Lawyer Conduct, when any properly payable instrument is presented for payment against insufficient funds.

In other words, NSF checks must now be reported by your bank to the ODC.

The Court recognized in a footnote that these written directives will take time to update and that lawyers whose written directives currently require reporting to the Commission on Lawyer Conduct are not in violation of the rule. The Court stated that lawyers should update these directives at their earliest convenience.

Most dirt lawyers pay close attention to detail, and I would recommend paying attention to this one sooner rather than later.

SC DOR announces implementation of tax lien registry as of Nov. 1

Standard

Nov 1 smaller

SC tax liens will no longer be filed in individual Counties

This blog previously discussed tax lien legislation effective March 28, 2019 that will change the way titles are examined in South Carolina. The South Carolina Department of Revenue has announced that the change will be effective November 1.

The announcement indicates the statewide tax lien registry will have a similar look and feel to the Mississippi Department of Revenue Lien Registry, which can be accessed here.

The legislation, an amendment to South Carolina Code §12-54-122, is intended to allow the Department of Revenue (DOR) to implement a statewide system of filing and indexing tax liens centrally, that is, “accessible to the public over the internet or through other means”. Once the new system in in place, the clerks of court and registers of deeds will be relieved of their statutory obligation to maintain newly filed tax liens.

The new law states that it is not to be construed as extending the effectiveness of a tax lien beyond ten years from the filing date, as set out in South Carolina Code §12-54-120.

When the new system is implemented, the law requires a notice to be posted in each county where liens are generally filed providing instructions on how to access the DOR’s tax lien database.

We will keep you posted as more details become available. Title insurance company underwriters will certainly weigh in on this issue.

Rock Hill residential real estate lawyer arrested

Standard

businessman theif briefcase smaller

Thankfully, it has been ten years or more since we’ve heard word “defalcation” used in connection with a South Carolina real estate lawyer. Sadly, we have to use that word in 2019 because a Rock Hill lawyer was arrested on September 13 after funds allegedly went missing from a residential closing. That lawyer, Thomas Givens, was suspended by the South Carolina Supreme Court on September 25.

The closing took place on July 15, but the $166,000 mortgage payoff was never made. Two months later, Givens was arrested and charged with breach of trust over $10,000. The arrest warrant reads that Givens failed to make the mortgage payoff and does not have the funds.

We usually do not experience defalcations when the economy is good. With the economic downturn that began in 2007, we learned the difficult lesson that attorneys who are prone to dip into their trust accounts often manage to keep the balls in the air as long as closings continue to occur. They typically steal from one closing to fund another. They rob Peter to pay Paul.

Like a game of musical chairs, when the music (and closings) stop, bad actor attorneys no longer have closings to provide funds for prior transgressions, and the thefts come to light.

It is a very sad commentary, and one I hoped not to see again.

Matthew Cox, notorious fraudster, resurfaces

Standard

Check out the August issue of The Atlantic

matthew cox

Picture courtesy of The Atlantic, August 2019 issue

I’ll never forget the name, Matthew Cox or the telephone call that tipped us off that we had a serious mortgage fraud situation here in Columbia. Long before the housing bubble popped, an attorney called to let us know what was going on that day in the Richland County ROD office. Representatives of several closing offices were recording mortgages describing the same two residential properties in Blythewood, as if the properties had been refinanced multiple times in the same day by different closing offices.

At first, we thought our company and our attorney agent were in the clear because our mortgage got to record first. South Carolina is a race notice state, and getting to record first matters. Later, we learned that deeds to the so called borrower were forged, so there was no safety for anyone involved in this seedy scenario. Thousands of dollars were lost.

Next, we learned about the two fraudsters who had moved to Columbia from Florida through Atlanta to work their mischief here. The two names were Matthew Cox and Rebecca Hauck. We heard that Cox had been in the mortgage lending business in Florida, where he got into trouble for faking loan documents. He actually had the guts to write a novel about his antics when he lost his brokerage license and needed funds, but the novel was never published. With funds running low, Cox and his girlfriend, Hauck, moved to Atlanta and then Columbia to continue their mortgage fraud efforts.

We didn’t hear more from the pair until several years later, when we heard they had thankfully been arrested and sent to federal prison.

For a much more colorful account of these criminal activities and Cox’s attempt to write “true crime” stories from the Coleman Federal Correctional Complex in Florida, I refer you to the comprehensive and entertaining article written by Rachel Monroe in the August issue of The Atlantic magazine. Please enjoy the full text of the article here.

Ms. Monroe said she had been contacted by Matthew Cox by email telling her he was attempting to write a body of work that would allow him to exit prison with a new career. He described himself as “an infamous con man writing his fellow inmates’ true crime stories while immersed in federal prison.”

The crimes perpetuated by Cox and Hauck were made easier by the housing bubble itself. Everything was inflated and values were hard to nail down. And closings were occurring at a lightening pace. This excellent article made my heart skip a beat as I was reminded of those times. I hope all of us in the real estate industry have learned valuable lessons that will similar prevent mortgage fraud in the future. Those of us who made it through the economic downturn are certainly older and hopefully wiser!

South Carolina Supreme Court abolishes common law marriage

Standard

Maybe we’ll get a “Big Chill” sequel

marriage blocks resize

“The Big Chill” is one of my husband’s favorite movies, in fact, it’s up there with “Braveheart” and “Casablanca”. Several years ago, we celebrated a milestone birthday by inviting two couples who were friends from law school to the mountains for a “Big Chill Weekend” of eating great food, playing great music* and reminiscing about the old days. We did agree to eliminate drugs and spouse swapping from the Big Chill agenda.

Last week, the South Carolina Supreme Court abolished common law marriage in South Carolina.** This rule will be prospective only. Parties may no longer enter into a valid marriage in South Carolina without a license.

Hang on. I will explain how the movie and common law marriage in South Carolina connect for those too young to remember the news. (And the connection has nothing to do with our Big Chill weekend.)

When the movie was being filmed in the winter of 1982-83 in Beaufort, actor William Hurt was living with Sandra Jennings, a former dancer in the New York City Ballet. Ms. Jennings became pregnant with Mr. Hurt’s son, Alexander Devon Hurt, who was born in 1983. The couple lived together in New York and on the road from 1981 – 1984.

When the couple split, Ms. Jennings brought suit in New York claiming a share of Mr. Hurt’s substantial assets, based on the theory that they had established a common law marriage during the few months they lived in South Carolina. She sought a divorce. Child support was not an issue because Mr. Hurt was paying $65,000 per year to support the couple’s son. Common law marriages hadn’t been recognized in New York since 1933, so the claim was based on South Carolina law and the short time the couple lived together in Beaufort.

Ms. Jennings was not successful in the law suit, but litigation is very expensive and the story got lots of mileage in South Carolina. The standing line was that actors had to be careful in this state! Maybe the cast can finally return for a sequel.

The Supreme Court stated that the time has come to join the overwhelming national trend, despite our legislature’s failure, to abolish common law marriage. The court said, “The paternalistic motivations underlying common-law marriage no longer outweigh the offenses to public policy the doctrine engenders.”  I know some other outdated ideas I’d like to see abolished in South Carolina.

* Favorite lines from the movie which demonstrate, in part, why it’s a favorite: Michael:  “Harold, don’t you have any other music, you know, from this century?” Harold: “There is no other music, not in my house.”  There is no other music in the Manning house either.

Favorite movie trivia: The dead guy, the corpse being dressed for his funeral in the opening scenes, was played by none other than Kevin Costner. There were plans to have flash-back scenes to the characters’ college antics, but those scenes were later eliminated.

** Stone v. Thompson, South Carolina Supreme Court Opinion 27908 (July 24, 2019).

Dave Whitener’s “Palmetto Logs”

Standard

SC palmetto state

Two weeks ago, this blog paid tribute to the late, great Dave Whitener, a giant among real estate legal professionals in South Carolina. As suggested in that blog about Dave’s “Top Ten You Betters”, I also wanted to share with you Dave’s “Palmetto Logs”.

Several years before his death, Dave was asked to address the American Bar Association. The issue was whether a successful defense might be mounted if a federal agency attacked the rights now existing in South Carolina for lawyers, and only lawyers, to close real estate transactions. In that talk, Dave cited ten areas of defense that he called the Palmetto Logs. For non-South Carolinians, the palmetto log has traditionally been a symbol of protection for South Carolinians in time of war. South Carolina is nicknamed “The Palmetto State”.

Here are Dave’s suggested protections against an attack from outside our state for closings performed by licensed South Carolina attorneys:

Caselaw

  1. State v. Buyers Service, 292 S.C. 426, 357 S.E.2d 15 (1987). In this case, the South Carolina Supreme Court defined the practice of law in a residential real estate closing to include: certification of the title; preparation of the deed and loan closing documents, closing the transaction and overseeing recording.
  2. Doe v. Condon, 351 S.C. 158, 568 S.E.2d 356 (2002). In this case, the South Carolina Supreme Court reiterated and confirmed that the four protected areas set out in Buyer’s Service would also apply to residential refinances.
  3. Doe v. McMaster, 355 S.C. 306, 585 S.E.2d 773 (2003). In 2003, the South Carolina Supreme Court again reiterated its holding in Buyer’s Service.

Statutes and South Carolina Constitution

  1. C. Code §40-5-310 makes it a felony for an individual to participate in the unauthorized practice of law.
  2. C. Code §40-5-320 makes it a misdemeanor for a corporation or other entity to participate in the unauthorized practice of law.
  3. C. Code §37-10-102 gives a borrower the absolute right to choose the closing attorney in a residential loan closing. The statute provides for a $7,500 penalty if the disclosure is not given.
  4. South Carolina’s Constitution gives the S.C. Supreme Court the exclusive right to define the practice of law within South Carolina

Practical Considerations

  1. The low cost attributable to attorneys’ fees for residential closings in South Carolina. Dave believed the low cost would present a major difficulty if a federal agency argues that South Carolina’s practice is anti-competitive or increased prices.
  2. Major job losses would possibly result from the outsourcing of jobs to closing centers outside of South Carolina
  3. Major risks would be raised in turning over the duties now performed by experienced lawyers to unregulated and inexperienced lay persons.

I’m not sure whether Dave would say differently if he were here to analyze this topic for us today. I fear that the retirement of Chief Justice Jean Toal may have resulted in the loss of the South Carolina lawyer’s strongest advocate in the South Carolina Supreme Court. So far, the Palmetto Logs are holding strong, but some more recent cases from our Supreme Court give me some concern on this topic.

In any event, I am continually thankful for Dave Whitener and his influence, mentorship and friendship to South Carolina dirt lawyers!