We have a new attorney preference case

Standard

…and dirt lawyers are not going to like it

The South Carolina Court of Appeals ruled recently in favor of Quicken Loans, Inc. in a foreclosure case where the defendants argued the lender was not entitled to foreclose because it had violated the attorney preference statute during the application process.* My friend and classmate, Special Referee James Martin Harvey, Jr., had granted partial summary judgment in favor of the defendants, and Quicken appealed.

quickenloans-logo-stack

Quicken telephonically takes information for loan applications from borrowers, according to the recited facts. Quicken’s system prompts Quicken’s banker to ask the borrower: “Will the borrower select legal counsel to represent them in this transaction.” If the borrower responds “no”, the attorney preference form is populated to read, “I/We will not use the services of legal counsel.”  No list of acceptable closing attorneys is provided to borrowers who answer “no” to this question, and the file is sent to Quicken’s affiliate company, Title Source, Inc., which acts as settlement agent in the transaction and subcontracts with attorneys to perform the settlement services.

If the borrower answers “yes”, Quicken’s system populates the attorney preference form to read, “Please contact lender with preference.” The system does not allow an attorney’s name to be entered at this stage of the application process.

The borrowers in this case declined legal representation during the initial telephonic application process.

The Court of Appeals indicated the form used by Quicken is identical to the form promulgated by the South Carolina Department of Consumer Affairs (DOCA) except that Quicken’s form is prepopulated with responses. Like the DOCA form, Quicken’s form states, “I/We have been informed by the lender that I (we) have a right to select legal counsel to represent me (us) in all matters in this transaction relating to the closing of the loan.” Unlike the DOCA form, however, Part 1(a) of the Quicken form is prepopulated to read, “I/We will not use the services of legal counsel.”

Under Part 1(b) the Quicken form, like the DOCA form, initially states, “Having been informed of this right, and having no preference, I asked for assistance from the lender and was referred to a list of acceptable attorneys. From that list I select…” Unlike the DOCA form, which provides blank lines to fill in an attorney’s name and the borrower’s signature, the Quicken form is prepopulated with the response, “Not Applicable.”

Quicken produced the affidavit of closing attorney Carlton D. Robinson, who said it was his practice to explain the legal effect of the attorney preference to borrowers and that he would not have closed if the borrowers had expressed any dissatisfaction with having him act as closing attorney.

The Attorney Preference Statute (S.C. Code §37-10-102(a) provides that when the primary purpose of a loan secured by real estate is for personal, family or household purpose, the creditor must ascertain prior to closing the preference of the borrower as to the legal counsel employed to represent the borrower in the closing. The purpose of this statute is to protect consumers.

DOCA filed an Amicus Brief arguing that Quicken had violated the statute. The Court of Appeals held that Quicken complied with the statute because an agent of Quicken asked the borrowers if they would be using preferred legal counsel and only populated the form after the borrowers responded that they did not have counsel of preference. Quicken sent the form to the borrowers, who signed and returned it without asking further questions.

Will the Supreme Court agree with the Court of Appeals given the opportunity? My guess that the current Justices will agree. My guess would have been different before the retirement of Chief Justice Jean Toal. Will the legislature tighten the language of the statute? That is always a possibility, but we have heard nothing on that front to date. I hate to be the bearer of such bad news for South Carolina real estate practitioners.

*Quicken Loans, Inc. v. Wilson, South Carolina Court of Appeals Opinion No. 5613, January 9, 2019.

Advertisements

We hope you have a wonderful holiday season!

Standard

And if the holidays make you blue, please ask for help!

blue christmas

Our office pledges to give our agents all the CLE they need free of charge, that is, if they are South Carolina practitioners and only practice real estate law. Don’t ask us for litigation education…we don’t know anything about litigation! We have an impressive calendar of webinars and “brunch and learns”, and we have one grand “annual seminar” where all of our agents are invited to one place to network, to be wined and dined by us, and to learn the latest and greatest issues affecting the practice of real estate law.

We typically hold this seminar in October or November, well before year-end. For 2018, we planned our grand finale in Myrtle Beach in early October, the Monday after the horrible flood that affected our coast and Pee Dee area.

The hotel kept telling us that Myrtle Beach was fine!  Our speakers flying in from other states would have no problem with air or ground transportation. Our agents, however, coming from all over South Carolina, would have been hard pressed to get to Myrtle Beach from the South because Georgetown was flooded or from the West or North, where the Pee Dee was almost entirely unpassable.

So, we punted!  We convinced the hotel to let us reschedule and had a great cocktail party on Sunday, December 16 and an all-day seminar on Monday, December 17. We were thrilled when our agents responded and attended one week prior to Christmas vacation. And we thoroughly enjoyed celebrating with the lawyers and their staff members who work with us all year long.

We were able to hug our agents and wish for them the best during the holiday season in person, which was great fun for us!

Why am I going on and on about seminars and lawyers and holidays?  I have been impressed this year with the fact that some people, and especially some lawyers, don’t enjoy this time of year, and I wanted to encourage everyone, especially, every lawyer, who needs help to get help now.

You may have read a recent heartbreaking news story in American Lawyer where a lawyer’s widow blamed “biglaw” for her husband’s suicide. She admitted that her husband had a deep, hereditary mental health disorder and lacked essential coping mechanisms. But she said she believed his high-pressure job and culture where it is shameful to ask for help, shameful to be vulnerable, and shameful not to be perfect, created a perfect storm.

And our church held a “Blue Christmas” service in early December. This service brought home to me the sad point that many people are unusually sad during the holidays.

This story and this service encouraged me to read statistics on lawyer suicide, and I learned that there is apparently an epidemic. In a period of 18 months in South Carolina, six lawyers committed suicide. We, as lawyers, are supposed to be problem solvers. We are supposed to be strong. We are not supposed to have problems. But lawyers do have these problems. I read one statistic that indicated lawyers are 3.6 times more likely to suffer from depression than non-lawyers.

In order to pass our “character and fitness” check to become lawyers and in order to keep our licenses for the long haul, we tend to hide our mental health problems. Having problems and hiding the problems can create perfect storms in our own lives.

I encourage any lawyer who is particularly unhappy this time of year to call South Carolina Bar’s Lawyers Helping Lawyers toll free helpline at (866) 545-9590 or contact any Lawyers Helping Lawyers member directly.

And I refer everyone to Stuart Mauney’s excellent article, “The Lawyers’ Epidemic: Depression, Suicide and Substance Abuse”, which is located on the Bar’s website. This article outlines the problem and the symptoms and explains how important asking for help can be. This article is valuable to all of us because if we don’t suffer ourselves, we probably know someone who does. I am going to keep a copy of it at my desk for future reference.

I wish for all of you very happy holidays and a happy, healthy and prosperous 2019!

Good news during Thanksgiving week for real estate agents…and us!

Standard

thanksgiving 2

Many real estate lawyers rely on their local real estate agent friends for the bulk of their residential closing business. When business is good for them, it’s good for us! Two recent stories in national publications are good signs for all of us.

First, an article from Housing Wire dated November 12, which you can read here, indicates more Americans are using real estate agents than ever before, including Millennials. The article cites a Harris Insights housing consumer study, which shows a full 90% of consumers use real estate agents to buy and sell their homes. These numbers are higher than those shown in previous similar studies, up 5 points from 2014 and 9 points from 2001.

We have all assumed that Millennials, ages 18 – 34, are replacing real estate agents with technology, but this study found the 91% of them use real estate agents in their transactions. According to this article, that number is higher among the Gen X group, ages 35 – 44, at 94%.

Surprising to me, this study indicates the older generations are more likely to cut real estate agents out of their transactions. Only 81% of consumers ages 55 and older indicate they use real estate agents in their transactions. And, apparently, more educated consumers enjoy the use of real estate agents in buying and selling their homes. High school graduates reported 83% use, while college educated consumers reported 94%. Higher income earners were also more likely to use real estate agents (98% of $75,000 – $100,000 earners vs. 79% of $50,000 or less earners.)

Read the article and the underlying study for more insight.

The second article that caught my attention is from Realtor Magazine on November 7. This article, entitled “Big Night of Midterm Wins for Realtors®”, reported that candidates across the country at federal, state and local levels won elections with the promise to benefit the real estate industry’s goals of strong communities and healthy residential and commercial property markets.

This article reports that the National Association of Realtors® supported hundreds of candidates they considered to be real estate champions, regardless of party affiliations.

It’s budget time for me, and our company is predicting a slight softening of residential and commercial markets in 2019. This positive news for our real estate agent partners makes me feel better about the year to come!

Here’s wishing everyone a very happy Thanksgiving with family and friends!

A scary Halloween story to keep real estate attorneys up at night!

Standard

This South Carolina man’s criminal conviction will stop you in your tracks!

pumpkin

BOO!

A South Carolina man made a name for himself this year in Washington, DC, and not in a good way. Robert McCloud, a 39-year old former resident of Warrenville, in Aiken County, was sentenced in federal court in Washington, DC, to 18 months in prison followed by three years of supervised release including six months of home confinement. He also forfeited almost $60,000 and will be required to pay restitution in an amount to be determined later. Finally, he will be required to perform 150 hours of community service.

The charges were based on wire fraud statutes and involved real estate transactions. McCloud pled guilty in June in the U.S. District Court for the District of Columbia. His sentence was imposed October 19.

McCloud and co-conspirators identified residential properties that appeared to be vacant and abandoned. They prepared and recorded fake deeds into fictitious names and later fraudulently sold the properties, using fake drivers’ licenses, to legitimate purchasers. McCloud and his co-conspirators involved unsuspecting title and escrow companies in the subsequent closings.

In his guilty plea in June, McCloud admitted to participating in two of these fraudulent transactions in 2015, which generated a total of around $580,000.  Of that total, law enforcement officials were able to seize almost $370,000 in administrative forfeiture proceedings. In both cases, the properties were unencumbered. The true owners of both properties are elderly owners and have been involved in difficult proceedings to have the properties re-titled in their names.

The harm caused to the true owners and the legitimate buyers was covered by title insurance, and the restitution represents funds owing to the title insurance companies. Dirt lawyers, when you need an example of why your clients should be protected by title insurance, you can use this story! And I have many others if you need them.

Dirt lawyers: here’s a book you need to read!

Standard

A lot of time has passed since I’ve written book reports, but I felt compelled to write this one after just completing the 2018 ABA Law Practice Division book, The Lean Law Firm, How to run your firm like the world’s most efficient and profitable businesses.

I learned about this book from, of all places, Facebook, when my friend and very techy Columbia lawyer, Jack Pringle, expressed anger that he hadn’t written this book himself. And I was thrilled to learn that one of the authors is also a very techy Columbia lawyer, Dave Maxfield. I don’t know Dave, but I’ve told his sister-in-law, my co-worker Dorothy Boudreaux, to warn Dave that I will be reaching out to him at some point to pick his brain, to ask him to speak at a seminar, and to otherwise figure out how I can relay his very creative and valuable ideas to the dirt lawyers in South Carolina who need the advice this book sets out so well.

lean law firm4

What is a lean law firm?  In the words of Larry Port, the other author, from the book’s foreword, being lean is not about cost cutting. “It’s more about creating systems and then finding the constraints and inefficiencies that impede them. Lean lawyers believe in measurement, reducing waste, and producing as much value as they can for their clients. And more than anything else, Lean is about experimentation and continuous improvement.” Would you like to increase your income and, at the same time, reduce your stress? The processes set out in this book are intended to teach you how to accomplish those goals simultaneously.

Unfortunately, most lawyers have little or no awareness of the value of creating systems. We are not taught to run businesses in law school. The lawyers I know and love are so busy practicing law that they don’t take the time to modernize, to focus on processes, and to create the systems that will allow them to run their firms like efficient and profitable businesses.

This book explains in detail how the science of management can be translated to law firms.

Does this sound like very dry reading to you? It is not that at all. In fact, it is the first book published by the ABA to employ the graphic novel approach. It is written in the form of a story about Gray Law Firm, a small struggling firm, it’s newly-hired, former big law lawyer, Carson Wright, who wants to help  “fix” the law firm, and Carson’s friend, Guy Chaplin, who runs an extremely successful racing bicycle manufacturing and distribution company.  Guy slowly teaches Carson the business principles that make his company successful. And Guy helps Carson figure out how to apply those principles to his law firm.

I have to warn you that the book contains a lot of math. But I am not a math scholar by any stretch of the imagination, and I was able to follow the formulas and to see how they would work well in a law firm that handles real estate, especially residential real estate. In fact, my only complaint about this book is that it is not geared specifically to real estate practitioners. Thus, my need to pick Dave Maxfield’s brain.

The book gives very specific advice about the basics of management, standardization, written procedures, checklists, marketing, goal setting and technology. A South Carolina real estate lawyer might find that some of the advice doesn’t apply, but I’m betting that most of it does apply, and I am encouraging everyone to order a copy of this book at www.ShopABA.org and to take its advice to heart.

Captain Sam’s Spit continues to be the subject of litigation

Standard

I’ve blogged about “Captain Sam’s Spit” in Kiawah Island previously. Googling that name will reveal a treasure trove of news, opinion and case law involving the proposed development of a gorgeous but extremely precarious tract of pristine beach property on South Carolina’s coast.

The South Carolina Bar’s Real Estate Intensive seminar in July of 2016 and again in July of 2018 included field trips to view this property, from a distance at least. Professor Josh Eagle of the University School of Law is an excellent tour guide, and how many opportunities do we, as lawyers, have for field trips? South Carolina Dirt lawyers should calendar the July 2020 version of this workshop.

Real estate development is my bread and butter, but two visits to the area told me that property should not be developed. A fellow field tripper, however, pointed out that the south end of Pawleys Island, where my parents took me to the beach as a child and which has been developed for many years, is just as precarious.

Captain Sam's Spit

Aerial view of Captain Sam’s Spit from The Post & Courier

The South Carolina Environmental Law Project located in Pawleys Island fights these cases. Amy Anderson, an attorney with that entity, joined us and explained the environmental issues as well as the legal battle.

Six months ago, the South Carolina Supreme Court held that a bulkhead and retaining wall could not be built to develop the property.  Just last month, however, Administrative Law Court Judge Ralph Anderson ruled that a road can be built to support the development because the economic benefits of building homes on Captain Sam’s Spit outweigh its natural preservation.

Here are greatly simplified facts in a very complicated South Carolina Supreme Court case: the developer and the community association entered into a development agreement in 1994. That agreement covered many issues, one of which was the proposed conveyance from the developer to the community association of a ten-mile strip of beachfront property, basically, the entire length of the island. A deed consummated that conveyance in 1995. All of the property conveyed was undevelopable because of the State’s jurisdictional lines.

I didn’t learn the following fact from the published case, but I learned it from one of the lawyers who was kind enough to speak with me. When the jurisdictional lines were redrawn by the State, the 4.62 acre tract became developable. The developer then took the position that the 1994 development agreement and the 1995 deed resulted from a mutual mistake, and that the parties never intended to include that tract.

The Master-in-Equity and Court of Appeals did not see it that way. Both found that the agreement and deed were unambiguous and that parole evidence of the intent of the parties was not allowable. The Supreme Court agreed.

In the recent Administrative Law Court case, Judge Anderson said the economic benefit of developing the property would include real property taxes of $5 million per year. This case is just the most recent in a decade of litigation.

Count on an appeal in this case and other litigation to follow. I’ll keep you posted!

Take a look: deep within the Internet is a secretive place…

Standard

.. where criminals buy and sell your private information

Nobody in my household is old enough to receive publications from AARP. (And if you believe that, I should either say “thank you” or try to sell you that beautiful 8-lane bridge crossing the Cooper River in Charleston.) But, for some reason, AARP’s September Bulletin arrived in my mailbox today, and it contained an excellent article entitled “Inside the Dark Web” that provides the best information on that topic than I’ve read to date. You can read the article here.

The article, written by Doug Shadel with Neil Wertheimer, said much of the available information on the dark web comes from Brett Johnson, an “imposing and charismatic” former criminal once dubbed the “Original Internet Godfather.” Johnson created “Shadowcrew”, one of the first online forums where criminals could buy guns, credit cards, Social Security numbers, and drugs. He landed on the Secret Service’s most-wanted list and was in and out of prison for a decade. The other source of information is a character who is now in prison and who asked to be called “Blue London” in this article. Today, according to this article, Brett and Blue are willing to share detail about the dark web, Brett, as a law enforcement consultant, and Blue, as an inmate who wants to reduce his prison sentence.

dark web

The article describes the entire content of the web. The “surface web”, which makes up 5-10% of the Internet, consists of sites that show up when you use normal search engines like Google, Yahoo and Bing. These sites encompass news, entertainment, products, services and consumer information. The creators of these sites, like Wikipedia, Amazon and WebMD, want lots of people to see them.

The “deep web”, which makes up 90-95% of the Internet, consists of pages requiring a password and can’t be accessed by normal search engines. These sites include online banking, subscription websites, government records, emails and most social media content. Examples include PayPal, Netflix, LinkedIn, Instagram and Dropbox.

The “dark web”, which makes up just 01% of the Internet, consists of sites that provide anonymity to users and go largely unregulated. Many are legal. For example, sites service as outlets for human rights activists can be found on the dark web. But the dark web is also used by criminals to make illicit purchases and sales with total anonymity. Cryptocurrency like Bitcoin is used to make the transactions untraceable.

The article described AlphaBay, a site that, before it was taken down in 2017 by the FBI, had over 200,000 users and took in between $600,000 and $800,000 daily, mostly drug related. But that site also dealt in stolen personal IDs, stolen credit card numbers and hacking tools.

Brett and Blue showed the authors of the article many other inhabitants of the dark web that moved in to take the place of AlphaBay. These sites sell the items marketed on AlphaBay plus logins and passwords, credit reports, and “fullz” which translates to a “complete package of everything needed to commit identity theft: Social Security number, date of birth, mother’s maiden name, address, phone numbers, driver’s license number and more.”  Blue said a fullz can sell for $20-$130, depending on the victim’s age and credit score.

Data can also be sold piecemeal. Brett asked the author his wife’s name and quickly found her Social Security number available for purchase at $2.99. The author also paid a small fee and received a 92-page report containing all his current and previous addresses, phone numbers, social media sites and email addresses. The report also contained descriptions of his family members and neighbors and details about properties he has owned.

Much of the data, according to this article, goes up for sale shortly after it is stolen. The huge data breaches we hear about routinely apparently flood the market and deflate prices. Brett and Blue told the author that they could study social media sites to harvest data for criminal purposes. Many sites use “knowledge-based authentication” (KBA) questions, which should be information that only the user knows. But if the user adds this type of information to social media sites, the scammers can successfully mine the information.

The article provides some advice to stop the cybercriminals. First, we should all simply assume that our information is already “out there” on the Internet, and take action to protect ourselves. Cybersecurity experts and former criminals agree on three steps to help us all stay safe:  freeze credit, closely monitor all accounts and use a password manager. The author said he fully subscribes to this advice and has taken all three steps. I’m at two out of three. What about you?

(You can thank me later for directing you to this outstanding article that you are much too young to read.)