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SC Supreme Court may have eradicated HOA foreclosures

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Third party bid was held grossly inadequate

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On December 18, the South Carolina Supreme Court decided a case that will force homeowners’ association attorneys to carefully consider whether they will initiate foreclosure actions in the future*. This blog discussed the Court of Appeals case last April. You can read that blog here but the very short version is that the Court of Appeals did not upset any apple carts and left the foreclosure process status quo.

The facts are simple. Mr. and Mrs. Hale bought their home in Richland County in 1998 for $104,250. In the next 20+ years, they built up $60,000 in equity, and the property now has a fair market value of $128,000.

In 2011, the Hales fell behind on their homeowners’ association payments. The HOA initiated a foreclosure complaint seeking a sale of the property in exchange for $566.41 in principal and interest. The Hales defaulted.

Interestingly, after the affidavit of default was filed, the HOA sent the Hales a bill for $250, which they paid. Also interestingly, the law firm representing the HOA sent the Hales a notice that the lien had been satisfied.

Three months after the HOA filed the affidavit of default, the Master entered a default judgment, calculating the amount due to the HOA as $2,898.67, comprised of $250 in principal, $80.87 in interest, $542.80 in litigation costs and $2,025 in attorneys’ fees. The property was sold at auction two weeks later to a third party, Regime Solutions, LLC.

This is the Hale’s explanation of the facts in their motion to vacate the sale:

“When we were served with the lawsuit to take away our home, I put the papers in a drawer and forgot about them. Some time after that, we received a bill from the HOA asking for the $250.00. I paid that without a problem. In November, we received a letter from the law firm of (the HOA) telling us that the Lien had been Satisfied…I thought that everything was OK after that. The next thing I know, someone is knocking on my door telling me that they bought my home and that me and my family were being evicted.”

The Master denied the Hales’ motion and adopted the position that the “effective sales price” was $69,040, consisting of the successful bid plus the balance of the mortgage. In his order, Richland County’s Master-in-Equity, Joseph Strickland, stated that “the practice of homeowners’ association foreclosures would effectively be eradicated if (the Hale’s) position came to bear.”

The appeal was handled by the law office of my friend, Brian Boger, a Columbia lawyer and well-known champion of consumers’ rights. The appeal argued that the $3,036 bid “shocked the conscience” and violated equitable principles.

The Court of Appeals affirmed.  Chief Justice Lockemy dissented, saying:

“A buyer at a judicial sale in which a senior lienholder is not a party takes the property subject to that lien, but the buyer is not responsible for its payment. The evidence in this cases shows (the Hales) have continued to pay the mortgage for a home for which they have no title because they will suffer the severe consequences of default if they do not. The buyer (Regime) has paid nothing. I do not believe it proper to give a judicial sale buyer credit for assuming a debt which is not legally required to pay.”

The Supreme Court seemed truly troubled by Regime’s business model. In a footnote, the Court stated that Regime either allows the senior mortgagee to (re)foreclose on the property or quitclaims the property to the original homeowners for a hefty fee. The Court seemed to be disturbed by Regime’s failure to assume mortgages in the ordinary course of its business.

The Court discussed two methods to calculate whether a bid price is so grossly inadequate as to shock the conscience. The debt method is a ratio comparing the total debt on the property to the fair market value. Under the debt method, Regime would have paid 53.9% of the value of the property. The equity method is a ratio comparing the winning bid price to the equity in the property. Under the equity method, Regime would have paid 4.9% of the value of the property.

The Court stated that our courts have not established a bright-line rule for what percentage “shocks the conscience”, but that a search of our jurisprudence reveals our courts have consistently held a price below ten percent definitely does.

The Court stated that when the foreclosure purchaser assumes the mortgage, the debt method should be used. But the court rejected the blind application of the debt method because of the facts in this case. Under these facts, the Court stated, applying the equity method is the only logical option.

The Court expressed concern about the foreclosure proceeding itself, stating that it morphed in to “a proxy to capitalize on a small debt”. The Court said it was especially troubled by Regime’s participation in a foreclosure proceeding to accommodate its business model of leveraging a nominal debt to secure an exorbitant return from homeowners who fear the prospect of an eviction. The Court said, “We do not countenance the improper use of foreclosure proceedings by the HOA, its attorney or Regime.”

The decision should not be read as a shift toward providing relief to homeowners despite their own poor choices, according to the Court. The Court said the case would have turned out very differently if the HOA and Regime had pursued “foreclosure in the normal course and made affirmative efforts to assume the Hales’ mortgage”. And that under the “unique facts of this case”, the Hales have demonstrated Regime’s bid was grossly inadequate.

I am quite sure my foreclosure lawyer friends are deciding how to change their practices in light of this case. I’m not sure the Court is correct about the normal course of foreclosures. I also doubt that the facts in this case are unique.

Justice Beatty concurred in a separate opinion, stating that he would adopt the equity method generally. That approach would certainly provide more clarity. Justice Beatty also said, “homeownership is the quintessential American dream. Purchasing a home is the largest investment that most South Carolinians will make. To allow the hard-earned equity to be confiscated by a bidder’s minimal investment is unconscionable. This is especially troubling when the foreclosure sale is the result of an HOA lien.”

For many reasons, I am glad today that I am not a foreclosure lawyer!

*Winrose Homeowners’ Association, Inc. v. Hale, South Carolina Supreme Court Opinion 27934 (December 18, , 2019).

Eighth Circuit Court ruling makes loans disappear

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The decision could make significant changes in the secondary market

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I refer you to this article from Bloomberg that led me to read the Eighth Circuit Court of Appeals case decided last month, CityMortgage, Inc. v. Equity Bank, N.A.*.

In South Carolina and most other states, the bank has the power to pursue the borrower personally if it can’t sell the property that is subject to a mortgage for the full amount of the loan after a foreclosure. There are a handful of “non-recourse” states where it is not possible to pursue the borrower personally. But this case was decided under Missouri law, and Missouri is not one of those unusual states.

The article makes a point that’s news to me: non-recourse mortgages are standard in most countries other than the United States.

The case involved a repurchase demand under an agreement between CityMortgage and Equity Bank. Twelve loans were involved, six that had been foreclosed and six that had not. The surprising ruling relates to the six mortgage foreclosures. The Eighth Circuit affirmed the lower court, which had held that the six loans that had been foreclosed no longer existed.

The dissent got it right, however, by stating that the loans were not “liquidated” or “extinguished” by the mortgage foreclosures. The dissent states the obvious: a mortgage is a security interest in real property that serves as collateral for the borrower’s loan. When the mortgage is foreclosed, the underlying promissory note survives and the borrower continues to be liable for the resulting deficiency (absent further action such as a new agreement or a discharge in bankruptcy.)

The article correctly states that the Eighth Circuit transformed recourse loans into non-recourse loans by its ruling. The article also states that non-recourse loans may lead to higher interest rates and larger swings in housing prices.  Purchasers on the secondary market won’t pay as much for non-recourse loans, and, for that reason, this case could have a significant impact on the secondary market if other circuits follow the lead of the Eighth Circuit.

* No. 18-1312 (8th Cir. 2019)

A blog for Thanksgiving Week

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The top ten things this dirt lawyer is thankful for professionally…

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As a happy United Methodist (by virtue of my marriage almost 40 years ago to a P.K.* who refused to be baptized again at a Baptist church) I believe an attitude of thankfulness makes life better.

Our office recently started following author John Fisher’s** lead by starting every business meeting with a positive focus. We circle the table and express one thing we are thankful for either personally or professionally. It’s amazing how much better this exercise makes us feel about the business we are about to discuss.

So, professionally, here are the top ten things for which I’ll give thanks this Thursday:

  1. We live and work in a state where closing real estate transactions is the practice of law and where, by hard work and vigilance, we are in a position to protect the interests of our clients.
  2. We help our consumer clients achieve one of their biggest dreams, home ownership.
  3. We help our commercial clients purchase, lease, finance and refinance properties. These activities allow our clients to make money and allow our communities to thrive.
  4. We don’t ignore title problems. We find them, discuss them, cure them, obtain insurance over them, and, hopefully, make them better for the property owner and lender, and for the next lawyer.
  5. If things go well, everyone involved in the closing is “happy”.
  6. We generally, as a community of real estate lawyers, seek to get along with each other. (Don’t make me point out exceptions to this rule!) Older lawyers mentor younger lawyers. Lawyers ask each other for guidance and, generally, that guidance is given with a smile. We train lawyers and paralegals, we serve on committees, we speak at seminars, write papers and books, participate in the Bar’s and the law schools’ mentorship programs and handle pro bono matters. As lawyers, we try to be good citizens.
  7. Those of us who weathered the financial downturn that began in 2007 encourage those of us who have not that there is life on the other side.
  8. Technology has made our lives easier in the last few years, and improvements in technology will continue to make our lives easier.
  9. I am thankful for the team of dedicated professionals who work with me to take the best care possible of our title insurance agents (dirt lawyers and their staff members.)
  10. I am thankful for our network of attorney agents who ably handle real estate matters throughout the Palmetto State.

 

I know. I know. Many of you are shaking your heads and pointing out that I no longer work “in the trenches” and don’t see the problems that plague real estate lawyers in the form of the constantly changing environment, changing technologies, difficulties in hiring and retaining staff members, increased competition and encroachment into “our” part of the closing by third parties.  I do see those difficulties, I am sympathetic, and my team and I are constantly seeking improvements.

But, for Thanksgiving week, let’s pause for just a moment to be thankful!

 

*I’m guessing most South Carolinians know what a P.K. is, but, just in case you don’t, it’s an acronym for Preacher’s Kid, which I am told means the worst kid in church. My husband tells two stories to demonstrate:  (1) His father once spoke to him from the pulpit and threatened to have him sit with him during the sermon if he didn’t behave; and (2) There are unconfirmed rumors that my husband’s initials have been carved in various church pews across South Carolina.

**John Fisher is a New York medical malpractice attorney who has written two excellent books, The Power of a System and The Law Firm of Your Dreams. I am a huge fan of creating systems in law firms and highly recommend these books, even for dirt lawyers….make that especially for dirt lawyers.

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

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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.

Holy Statute of Frauds

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Can text messages create binding real estate contracts?

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South Carolina real estate practitioners, do you remember that old case from law school where a contract was created on a napkin?  That case made me imagine drunken parties in a bar passing a napkin back and forth as drinks came quicker and caution evaporated.

That simple case is seen in a new light, however, as courts across the country struggle to apply the ancient statute of frauds to the evolving world of electronic communications. Telegrams, faxes and emails have all been found to satisfy the statute of frauds in some situations.

We haven’t seen a South Carolina case on the topic of text messages and binding contracts, but The Southern District of New York and a Massachusetts Land Court recently found that text messages may be sufficient to serve as evidence of the existence of binding agreements between negotiating parties.

In the New York case, the plaintiff real estate broker relied on a series of text messages to show the existence of a binding fee agreement. The court held that the text messages satisfied the writing requirement of the statute of frauds but failed to satisfy the signature requirement.

The Massachusetts court, on the other hand, found that a series of text messages did satisfy the signature requirement of the statute of frauds because a signature of a sort was included within multiple text messages between the parties. Some of the texts contained typed names of the parties beneath the substantive messages.

Real estate practitioners should caution their clients in the use of texts and other non-traditional means of communicating. Advise clients to refrain from typing their names under text messages. Better yet, advise clients to include disclaimers to the effect that no agreement involving the subject matter is final until wet signatures are applied to a physical document.

And even better than that, caution clients that texting and negotiating real estate contracts may be almost as dangerous as texting and driving.

While text messaging can’t be surpassed, at least in 2019, when it comes to speed and efficiency, a new and different level of caution may be needed when engaging in negotiations through such seemingly informal means of communicating.

ProPublica publishes interesting heirs’ property story

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Check out the July 15, 2019 story by Lizzie Presser

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Image courtesy of ProPublica.org

Several of our staff members stay well informed about current events, and Cris Hudson, our IT professional, is no exception. Cris pointed me to this story published by ProPublica on July 15 entitled “Their Family Bought Land One Generation After Slavery”. The subtitle is “The Reels Brothers Spent Eight Years in Jail for Refusing to Leave it.” Cris told me I should blog about this story, so here goes.

ProPublica calls itself a “nonprofit newsroom that investigates abuses of power”. The story is about brothers, Melvin Davis and Licurtis Reels, who lived in Carteret County, on the central coast of North Carolina, on land they considered to be owned by dozens of their family members. The property consists of 65 marshy acres. Melvin Reels ran a club on the property and lived in an apartment above the club. He also had established a career shrimping in the river that bordered the land. Licurtis had spent years building a house near the river’s edge, just steps from his mother’s house.

Mr. Davis’ and Mr. Reels’ great grandfather, Mitchell Reels, bought the land just one generation removed from slavery. The land was said to contain the only beach in the county that welcomed black families. Mitchell didn’t trust the courts and didn’t leave a will, so, when he died in 1970, the property became heirs’ property.

In 2011, the brothers appeared before a judge to argue that they owned the waterfront portion of their property, which had purportedly been sold, without their knowledge or consent, to a developer. They were not allowed to argue their case that day. Instead, the judge sent them to jail for civil contempt. They were never charged with a crime nor given a jury trial, but they spent the next eight years fighting their case from jail.

As any practitioner who has handled quiet title suits for heirs’ property can attest, the suits can be expensive and complex. Nonprofit organizations, like The Center for Heirs’ Property Preservation, in South Carolina, assist in litigating these matters.

The story quotes Josh Walden of the Center who said that organization has worked to clear more than 200 titles in South Carolina the past decade, protecting land valued at nearly $14 million. Mr. Walden told the reporter that the center has mapped out a hundred thousand acres of heirs’ property in South Carolina and is careful to protect the maps from potential developers.

Back to the North Carolina story, a great uncle of Mitchell and Licurtis apparently obtained the waterfront property through an adverse possession action and began sending trespass notices to the brothers in 1982. The brothers could not believe the adverse possession action could have been “legal” since they had lived on the land their entire lives. Soon afterward, the great uncle sold the waterfront portion of the land to developers.

The family members knew that if the waterfront was developed, the tax values of their adjacent properties would skyrocket, and they would have difficulty paying the taxes and maintaining their properties. Tax sales have historically been the cause of the loss of many heirs’ properties.

(I got confused in one part of the story when the author talked about “nearby” Hilton Head. We drove from Hilton Head to Outer Banks once, and I promise you, the two locations are not “nearby”. We could have driven to Disney World in the same time frame.)

Like tax sales, partition actions have been a tool used to separate heirs from their properties. A developer can buy the share of one heir and then force a partition of the entire property. While South Carolina has passed partition legislation to protect against this danger, North Carolina has held out against this reform, according to the story.

The brothers continued to rot in jail after the judge indicated there was no time limit on civil conspiracy, and that the brothers had to move their houses from the properties to be released. The brothers refused and were locked in a hopeless clash with the law, according to the story.

Eight years later, the brothers appeared before a judge who agreed to release them but warned them that if they returned to their homes, they would return to jail. They have still not been able to return to the waterfront property.

I invite you to read the entire story for a history of heirs’ property in the South. It is indeed a sad tale of greed and legal wrangling to remove properties from heirs. The Reels’ story is just one example.

Connecticut codifies attorney closing requirement

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South Carolina licensed attorneys must close real estate transactions because our Constitution gives our Supreme Court the power to define the practice of law, and that Court, beginning with the 1987 seminal case, State v. Buyers Service, has defined the practice of law to include closing real estate transactions.

No explicit authority has required a similar result in Connecticut, but by custom, lawyers in Connecticut have routinely been involved in real estate closings. Beginning October 1, 2019, however, this long-standing practice will be required by statute as a result of the passage of Connecticut Senate Bill 320 (Public Act 99-88).

The new law defines “real estate closing” as follows:

  • a mortgage loan transaction, other than a home equity line of credit transaction or any other loan transaction that does not involve the issuance of a lender’s or mortgagee’s policy of title insurance in connection with such transaction, to be secured by real property, or
  • any transaction wherein consideration is paid by a party to such transaction to effectuate a change in the ownership of real property in Connecticut.

A violation of the new law will constitute a felony punishable by a $5,000 penalty or five years in jail.

It is interesting to me that a loan not involving title insurance does not require the involvement of an attorney. Why would a lender’s requirement of title insurance be determinative?  I can envision the argument that foregoing title insurance and thereby foregoing the requirement of the involvement of a licensed attorney would greatly decrease closing costs. Both are protective of the interest of the lender. It seems to me that either title insurance OR a closing attorney would be more desirable than neither.

It is also interesting that there is no differentiation between residential and commercial transactions in the new Connecticut statute. All the South Carolina cases in this area have involved residential facts, and at least one well-respected commercial lawyer in Columbia believes the Court may not have intended to include commercial transactions, where sophisticated parties are almost always involved. Most commercial transactional lawyers believe commercial transactions must follow the residential line of cases.  In Connecticut, it seems clear by the statutory definitions that lawyers are required for commercial closings.

Equity lines not being included under the purview of the new law seems counterintuitive. A consumer can get into as much or more trouble with an equity line as with any first or second mortgage.

And my final thought is that the statute doesn’t seem to define who the attorney must represent in the closing. The law states “no person shall conduct a real estate closing unless such person has been admitted as an attorney in this state.” South Carolina cases are clear that the protections are established for the consumer borrower.

In any event, I believe most South Carolina dirt lawyers would agree with me that we like the fact that Connecticut agrees with South Carolina and wish other states would follow suit!

Commercial lawyers: you’re not immune from fraud!

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This high-dollar scam was reported to our company

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Our company publishes an excellent newsletter entitled “Fraud Insights”. The Editor, Lisa Tyler, National Escrow Administrator, deals mostly with residential transactions. It’s unusual for her to report on a scam involving a commercial transaction, but the edition that hit my in-box today outlines the story of a chilling scam involving a commercial transaction in New York. Fortunately, the scammers were not successful despite their best efforts.

Here are the facts. On April 10, 2019, an attorney at a large, prestigious New York City law firm sent a settlement services office in Lake Success, New York, a payoff letter for a private mortgage. The payoff letter said $1.7 million should be wired to a bank account in New Jersey.

The afternoon before the closing, the settlement office received an email purportedly from the payoff attorney’s office with revised payoff instructions for a bank in the Netherlands.

The closing was postponed for reasons not involving the loan payoff. When the closing was rescheduled, the settlement office emailed the lawyer and his assistant inquiring about the change in the wiring instructions. The responding email confirmed that the change was legitimate.

Reviewing the emails carefully, the closer noticed the domain name for the lawyer’s office contained an extra “s” beginning with emails dated April 16. The attorney’s email signature was also partially cutoff beginning April 16.

Two hours before the closing, the attorney’s assistant purportedly sent the closer an email asking if the wire had been sent. The closer did not want to alarm her that her email had been compromised, so he responded that the closing was happening shortly, and he would be in touch. The closer then searched the law firm by Internet and called the main telephone number, asking for the assistant directly. She answered the phone and said the original payoff letter was the only payoff letter, and she had not sent the recent email. She was, of course, alarmed.

She said her attorney was in court and she would relay the distressing information to him immediately. She was asked to refrain from using email for that notification because the emails were clearly being watched. Regardless, she emailed the attorney. At that point, the scammers were tipped off that their scheme had been uncovered.

While the legal assistant and the closer were discussing the situation by phone, the closer received another email purportedly from the assistant demanding that he call the lender to confirm the payoff information. Immediately following that exchange, a man called the closer office to confirm the altered wiring instructions.

At this point, everyone involved with the closing knew for sure that they were dealing with attempted fraud. The closing took place, but the payoff was accomplished via bank check.

The closer said his office tries to remain on the cutting edge of technology and industry news. His sharp eye in pinpointing the email discrepancies kept the closing from being another cybercrime news story. Commercial lawyers may feel somewhat insulated from the rampant cyber fraud that plagues residential practices, but this cautionary tale is an example of penetration into a sophisticated law firm. Be careful out there!

Paying tribute to a giant of the SC Real Estate Bar

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Dave Whitener was a friend and mentor to us all

Have you ever tried to organize your old forms, seminar materials and documents only to start waxing nostalgic and ultimately getting absolutely nothing accomplished? That happened to me today.

I am sorely behind schedule writing an update to the Handbook for South Carolina Dirt Lawyers. I’m sure my name is “Mud” with Terry Burnett and Alicia Hutto, my good friends at the South Carolina Bar who are not very patiently waiting for results. I had a plan to get the update done in 2017 and again in 2018, but that never happened. I’ve been so busy with new initiatives at work that I didn’t even attempt to develop a plan to write an update in 2019. Now, I’m shooting for the date of my death or retirement, whichever comes earlier. Wish me luck!

Hugh Dave WhitenerBut today, I began to organize ancient materials in an attempt to breathe new life into this aged project. And I kept coming across the same name, my late, great friend, Dave Whitener. Why? Because Dave wrote and taught much of the subject matter I now need to address.

Dave was 70 years old when he died in 2014 after practicing commercial real estate and teaching law school in Columbia for many years. He was married to my friend, Tricia Wharton Whitener, who continues his good work today. Dave was not only an excellent practitioner and teacher, but he was also, as his obituary quips, “renowned as a raconteur whose stories made others happy”. He loved people and he loved the law. He loved talking to law students and lawyers and telling them memorable stories in an effort to keep them out of trouble.

Since keeping my fellow South Carolina dirt lawyers out of trouble is the mission of this blog, I’m finding that many of the lessons Dave taught are appropriate on my day of waxing nostalgic.

If a law student or lawyer called Dave with a disturbing current event that the caller said “rang a bell” from one of Dave’s ethics lectures, Dave would reply, “You’re hearing the dinner bell at the federal prison.” That would get the caller’s attention!  I thought of that quote when I came across a lecture from Dave entitled “Top Ten ‘You Betters’”.  I thought I’d share that list with this audience today because this particular top ten list will never go out of style for real estate practitioners.

Dave Whitener’s Top Ten “You Betters”

    1. You better not facilitate the unauthorized practice of law.
    2. You better do what you should be doing.
    3. You better know what you should be doing.
    4. You better be on time.
    5. Everything better be shown on the closing statement.
    6. Everything on the closing statement better be correct.
    7. You better communicate with your clients.
    8. You better understand the rules on conflicts of interest.
    9. You better remember that your trust account is sacred.
    10. You better train your staff properly.

 

 

I could editorialize about each item on the list, but I believe the simplicity of this list speaks volumes for today’s purposes. But if I were to write a chapter on each item on the list, my handbook would be complete.

stay tuned

Thank you, Dave, for your example. My next blog may be about Dave’s ten-point plan for defending the rights of South Carolina licensed practitioners to handle real estate closings. Watch this space! 

SC Court of Appeals provides lis pendens primer

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Termination on the merits is required for malicious prosecution claim

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A lis pendens is a handy tool for real estate lawyers. When litigation is brought affecting title to real estate, a lis pendens gives notice to third parties that sales, loans and construction draws should, most likely, come to a screeching halt until the issues affecting title are resolved.

Back in the days when I was in private practice, malicious prosecution claims arose relatively routinely when lis pendens were filed in cases where the title to real estate was not in question. That situation is the subject of a Court of Appeals case from early this year.*

The case involved Somerset Point at Lady’s Island, a subdivision in beautiful Beaufort County. The developer, Coosaw, and River City, one of the construction companies building homes in the subdivision, became involved in a dispute about design and construction standards. River City accused Coosaw of failing to enforce the standards with other builders, and Coosaw, in turn, accused River City of failing to comply with the standards.

River City brought suit in 2011 alleging causes of action for breach of fiduciary duty, breach of contract, and unfair trade practices. Coosaw counterclaimed and crossclaimed against River City for violating the design standards and sought a temporary injunction against continued construction. Coosaw also filed a lis pendens describing one property, Lot 16, in Somerset Point.

River City moved to strike the lis pendens on the ground that title to Lot 16 was not at issue. The master-in-equity agreed and struck the notice of lis pendens. On reconsideration, the master stated, in part, that striking the lis pendens would allow River City’s construction lender to resume providing construction draws and would allow River’s City’s project to be completed. Coosaw appealed but ultimately withdrew the appeal after River City’s sale of Lot 16 rendered the issue moot.

In late 2014, River City filed the lawsuit at issue, alleging causes of action for malicious prosecution and abuse of process based on Coosaw’s filing the lis pendens in the 2011 action. River City argued the cause of action for malicious prosecution was proper because the lis pendens had been terminated in its favor.

The Court of Appeals listed the elements of malicious prosecution to include termination of the proceedings in the plaintiff’s favor. River City argued that a lis pendens is an ancillary proceeding, and termination of an ancillary proceeding will support a malicious prosecution claim. The Court of Appeals held, however, that a lis pendens is not an ancillary proceeding but is simply a notice of the proceeding.

Citing earlier cases, the Court reviewed the law of lis pendens:

  • A lis pendens is a statutory doctrine designed to inform prospective purchasers or encumbrancers that a particular piece of property is subject to litigation.
  • A properly filed lis pendens binds subsequent purchasers or encumbrancers to all proceedings evolving from the litigation.
  • Generally, the filing of a lis pendens places a cloud on title which prevents the owner from freely disposing of the property before the litigation is resolved.
  • The lis pendens mechanism is not designed to aid either side in a dispute between private parties. Rather, the lis pendens is designed to protect third parties by alerting them of pending litigation that may affect title.
  • When no real property is implicated, no lis pendens should be filed.
  • A lis pendens is merely a form of pleading that does not provide any substantive right. It is simply a notice.

The Court held that the termination of a lis pendens to support a malicious prosecution cause of action must be a victory on the merits of the litigation, not a termination based solely on technical or procedural considerations. In the case at hand, the underlying merits remained pending after the termination of the lis pendens. The Court held that the subject action is, therefore, premature.

In short, the Court held that a maliciously filed lis pendens can act as the primary basis for a malicious prosecution claim, provided the plaintiff can establish a favorable termination of the lis pendens reflective of the merits of the underlying action.

*Gecy v. Somerset Point at Lady’s Island Homeowners Association, Inc., South Carolina Court of Appeals Opinion 5622 (January 30, 2019).