Claire T. Manning

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)

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

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

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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!

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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!

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.

A sign of the times?

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Zillow begins to market title and escrow services

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A November 12 article in the “Title Report” states that Zillow has begun testing its own title and escrow services in a handful of markets.

After making significant strides in revenues in the third quarter, Zillow is testing the waters in our arena. But, thankfully, we aren’t yet seeing these activities in South Carolina. Zillow had previously used third party title and escrow agents for its transactions. It continues to use third parties in most markets.

A Zillow spokesman told the “Title Report”, “We are also building title and escrow services in-house as a part of our long-term goal of delivering a true, seamless, end-to-end transaction experience for consumers.”

Zillow told the Title Report that more than 80,000 homeowners requested offers in the third quarter. It purchased nearly 2,300 homes and sold more than 1,200 homes in the same time frame. The spokesman said the company believes these results demonstrate that the business model to mechanize real estate transactions is gaining traction as consumer demand reveals people want an easier way to buy, sell, rent and finance homes.

stay tuned

This blog has previously suggested that the role of the local real estate agent may change to assisting sellers in analyzing the various offers they receive from iBuyers plus managing inspections and other steps in the real estate closing channel. As long as closings remain the practice of law in this state, our local dirt lawyers will remain involved in the closing process.

We promise to keep you informed of developments! Watch this space.

What’s first: flying cars or instant home ownership?

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flying car

This headline is blatantly stolen from this article that I recommend for your reading pleasure. This blog, written weekly since late 2014, has two goals: (1) to keep South Carolina real estate lawyers out of trouble; and (2) to keep South Carolina real estate lawyers in business. This article, about the future of home ownership, is recommended to advance the second goal.

Julian Hebron, the author of this article, is the founder of The Basis Point, a sales and strategy consulting business for consumer finance and real estate companies. He has extensive experience in real estate, lending and financial services. Investopedia touts itself as the world’s leading source of financial content on the web. Investopedia commissioned Julian Hebron to explore what home buying, improving and selling will look like in the next twenty year, and he said he jumped at the chance.

The article describes a vision of home buying for consumers in the future:

  • Pull out your phone and search for homes.
  • View homes using full 3-D modeling and video so you can truly “tour” the home right on your phone.
  • See every specification about the home, neighborhood, schools, restaurants, crime, taxes, etc.
  • Tag the homes you like to stay organized.
  • Get notified over time on sales and price changes of homes.
  • Make an offer on a home by pushing a button.
  • Avoid long appraisal process because the home’s value is verified by date and 3-D modeling/video, and this automated valuation method is accepted by all lenders.
  • Close on the home instantly because your loan is always approved via your secure blockchain wallet with realtime income, asset, debt, and credit score data. All you do is schedule licensed and reviewed local movers and contractors to facilitate your move.
  • Schedule moving day food delivery from recommended restaurants in your neighborhood.

And here is the description of home selling in the future:

  • Fill out a short form on your phone saying you’d like to sell your home.
  • Receive a home purchase offer in 1-2 days, and close in as little as seven days.
  • Or shop and hire a licensed and reviewed local realtor to list your home if you don’t like the instant offer.
  • Get asked if you’re purchasing a new home, and, if so, get prompted to follow the home buying steps above.

How close are we to this vision? The author isn’t sure but plans to write future installments to dig deeper into each player in the vision.

Can we stay in the market if this vision comes true? 

I believe we can. I believe our closing law firms should establish strong systems to document processes and keep them current in an effort to be able to nimbly adjust to the changing market. I believe we should stay on top of changes in technology because technology will certainly be a huge driver in these changes. I believe we should continue to establish strong relationships with the players in the real estate industry, particularly the real estate agents. We will all be fighting for business as the market changes, and keeping current on the available information and the current players will be vital to remaining in the game.

This blog will continue to provide South Carolina real estate lawyers with current information to support these efforts. Watch this space!

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

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Make one simple change to stay in compliance

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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

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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.

Supreme Court to hear CFPB Challenge

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Seila Law, LLC v. Consumer Financial Protection Bureau likely to be heard by mid-2020

CFPB building

The United States Supreme Court announced on Friday, October 18, that it will hear a case challenging the constitutionality of the Consumer Financial Protection Bureau. The allegation in question is that the structure of the agency grants too much power to its director, in violation of the Constitution’s separation of powers doctrine.

Under the current structure, the director of the CFPB cannot be fired by the president absent “inefficiency, neglect of duty, or malfeasance in office.” The heads of other federal agencies may be removed at the pleasure of the president.

The order posted by the Court last Friday requested that both sides address whether the CFPB can remain in effect if its structure is found to be unconstitutional.

Concern about the structure of the agency has been voiced since its inception based on the fact that such huge power has been placed in the hands of one individual director. The argument continues that the CFPB has more power than any agency ever created by Congress. While most federal agencies are controlled by commissions or by a director who serves at the pleasure of the President, the CFPB’s sole director is removable only for cause. Also, since all of the funding of the agency is not controlled by Congress, there is little legislative oversight.

In previous hearings, when the CFPB has been asked what the appropriate remedy should be if the structure of the agency is held to be unconstitutional, the CFPB has maintained that formative statute would have to be amended to allow the President to remove the director with or without cause.  Some have suggested that all of the actions of the CFPB might be suspect if its structure is held unconstitutional. Others have suggested that agency should be headed by a multi-person, bi-partisan commission rather than a single director for greater transparency and accountability.

If a decision in the case is announced in mid-2020, the presidential election could be affected since Sen. Elizabeth Warren’s role in creating the agency is a central pillar of her presidential bid.

Justice Brett Kavanaugh has made clear in a previous dissent that he believes the structure of the agency is unconstitutional.

The Law Firm of Your Dreams

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Say Goodbye to Your Boss, Say Hello to the Law Firm You’ve Always Dreamed of

JFisher Book 2Readers of this blog know I am prone to write a book report from time to time, but only about books that I think will benefit South Carolina real estate practitioners. I’ve blogged previously (twice!) about John Fisher’s The Power of a System; How to Build the Injury Law Practice of Your Dreams. John Fisher has a new book that I also recommend for dirt lawyers.

By the way, John was a speaker at our Chicago Title annual seminar on October 14, and he did not disappoint. If you missed him, I highly recommend that you begin following what he writes and that you seek out the opportunity to hear him speak.

His 2019 book is entitled The Law Firm of Your Dreams; Say Goodbye to Your Boss, Say Hello to the Law Firm You’ve Always Dreamed of.

In the formative days of his medical malpractice firm, Fisher wished for a step-by-step manual for running a profitable practice because, like the rest of us, he was not taught strategic planning, goal setting, business metrics, managing employees, managing clients, and marketing in law school. He later developed that manual for his firm, not just technical systems for running a business, but also the managerial and entrepreneurial principles to keep a constant stream of new cases and clients coming through the pipeline.

Those systems were covered in his first book, and numerous lawyers have said the book provides a roadmap for accurate and precise business development for any lawyer in any practice anywhere!

The 2019 book starts with the premise that the lawyer’s mindset is the most important aspect of creating the ideal law firm. Without the right mindset, the author says, the best policies and systems won’t do you much good. He recommends becoming a “specialist” even though that word is a “no no” under our ethical rules. John believes that if you don’t specialize in something, you will be marginal in everything.

I have a lawyer friend who has learned to specialize. He practices in the area of residential real estate closings in a coastal area. He is a sole practitioner, and he very narrowly defines the scope of his work. He seeks to make buyers, sellers, real estate agents, and lenders happy in connection with their closings. For that reason, he will not write what I call “nasty lawyer letters”. He refers that work to a friend. He will also not do any kind of work that will slow down the very well-oiled machine that keeps him churning out his closings in a timely and accurate fashion.

He may set up a simple LLC for a closing, but he refers out complicated entity formation, complicated trust formation and anything to do with estate planning. He may draft a simple set of restrictive covenants, but he refers out complicated subdivision development and commercial real estate closings of any type. His clients, lenders and real estate agents are happy and return again and again. Fellow lawyers love that he refers complicated work to them, and they refer residential closings to him in return. Win. Win. Win. John Fisher would approve of his system.

John Fisher recommends that a lawyer should delegate almost everything, both professionally and personally. He says, “your career (and life) will be chaos if you answer every phone call or email during your work day. You will never go home in time for dinner or attend your kids’ ball games if you insist on being everything for your clients. That’s why you have to delegate everything you can and do only those things you cannot delegate.”

And the best thing you can do for your career, according to this author, is to devote as much time and energy as you can to marketing and growing your law practice. A large part of both books is devoted to marketing.

I am a huge fan of the ideas and step-by-step instructions of this thoughtful lawyer and author. I invite you to read his books and follow his advice to improve your practice and your life!