CTIC SC

Court of Appeals decides interesting estate case

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From a “dirt” point of view, it seems cases where I am able to agree with the South Carolina Court of Appeals are few and far between these days. But an estate case was handed down on April 3 that should make perfect sense to all dirt lawyers*.

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The case involved the will of William Paradeses who lived in Richland County and died in early 2016. The will, which was executed in 2008, was discovered in the home of the deceased shortly after his death.

The will contained a strikeout of Item IV(2), which originally provided for a $50,000 bequest to Fay Greeson, the respondent in this case. Next to the deletion was a handwritten note: “Omit #2 W.D. Paradeses.”  The will also contained a handwritten addition to Item IV(1), which placed a condition on Paradeses’ bequest of his interest in the Saluda Investment Company. That notation stated: “A.D. and J.D. Paradeses will have control until it is sold and no one else.” There were no witnesses to either of these changes. A.D. and J.D. Paradeses agreed to comply with the Testator’s second notation.

Georganna Paradeses, the personal representative, filed a petition for a declaratory judgment seeking an order from the probate court declaring the rights of the parties and the effect of the notations. Faye Greeson filed an answer denying the deletion of her bequest was made by the testator and asserting the deletion failed because of improper attestation. The remaining family answered and alleged the testator made the notations with the intent to change his will.

The probate court found that the addition and deletion were consistent with a codicil and required proper execution. The probate court therefore held that the bequest of $50,000 to Faye Greeson remained valid. The remaining notation on the will was not in dispute.

The Court of Appeals relied on South Carolina Code §62-2-502, which states that a will may be freely modified or revoked by a mentally competent testator until death, and §62-2-506(a), which states that a will may be revoked by executing a subsequent will or by burning, tearing, canceling, obliterating or destroying the document with the intent to revoke it.

The appellants argued that the deletion in the will amounted to a partial revocation, which should have been allowed by §62-2-506(a) despite the absence of witnesses. They cited a 1912 South Carolina Supreme Court case** which held a strikeout in a will amounted to a revocation of the stricken provision.

The Court of Appeals, however, relied on another South Carolina Supreme Court case** that decided changes to a will with both an addition and a deletion were more akin to a codicil, which requires the normal formalities of the execution of a will. The testator’s notes in the case at hand were held by the Court of Appeals to amount to a codicil, and the bequest to Faye Greeson stood.

Dirt lawyers like certainty, and, for that reason, we like this case!

 

*In the Matter of Paradeses, South Carolina Court of Appeals Opinion 5635 (April 3, 2019)

**Citations omitted.

Tax lien legislation signed by Governor McMaster

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Tax liens will no longer be filed locally when the system is implemented

tax-lien.jpgSouth Carolina Governor Henry McMaster signed tax lien legislation on March 28 that may change the way titles are examined.

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 stated effective date of the legislation is July 1, 2019, but nothing in the legislation sets a deadline for the DOR to act, and, in fact, the statute indicates the DOR “may” implement a statewide system.

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.

HUD accuses Facebook of housing discrimination

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facebook-dislike-thumb.jpgThe U.S. Department of Housing and Urban Development (HUD) announced last week that it has filed a civil complaint against Facebook, Inc. alleging violations of the Fair Housing Act as a result of Facebook’s ad-targeting system. Twitter, Inc. and Google have been notified that their similar practices are under scrutiny.

Facebook’s ad-targeting system allows advertisers the ability to direct messages to target audiences with precision.  HUD charges this system has allowed real estate companies to unlawfully discriminate on the basis of race, nationality, religion, color familial status, sex and disability.

The complaint alleges Facebook is guilty of “encouraging, enabling and causing” unlawful discrimination when it allows advertisers to exclude users by certain characteristics, for example, whether they are interested in Hispanic culture and food, whether they are parents and whether they are non-citizens or non-Christians. Some ads are only shown to women. Other ads may exclude neighborhoods or geographic areas like ZIP codes. Secretary of HUD Ben Carson said using a computer to limit a person’s housing choices can be just as discriminatory as slamming a door in that person’s face.

HUD alleges Facebook mines users’ extensive personal data and uses characteristics protected by law to determine who can view housing ads.

This is not the first time Facebook has been in trouble for ad-targeting. An earlier investigation by ProPublica found the advertising practices acted to exclude African American, Latinos and Asian Americans. HUD had filed an earlier complaint last August alleging ethnic groups were excluded from viewing some ads. Facebook took action by removing 5,000 ad target options.

The ACLU was not happy with that result and filed a lawsuit. That lawsuit was settled recently with Facebook announcing substantial changes to its platform including withholding a wide array of demographic information often used as indicators of race. Facebook also agreed to create a tool that would allow users to search for housing ads whether or not the ads could be viewed in individual news feeds.

HUD was apparently dissatisfied with the settlement as not going far enough to remedy housing discrimination and responded with the current complaint.

Landlords may have “sweeping” new duty to protect tenants in SC

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Apartments’ courtesy officer program may create liability

It is not uncommon for apartment complex managers to exchange reduced rent for the casual services of resident law enforcement officers. These services may include parking law enforcement vehicles on the property, answering security calls regarding incidents in the complex, and walking the property in uniform. A recent South Carolina Supreme Court case* may have imposed liability on apartment complexes employing these tactics to protect tenants from criminal acts of third parties.

Denise Wright was abducted and robbed at gunpoint by two assailants in the common area of Wellspring apartment complex within the Harbison community near Columbia. The incident took place after Wright left choir practice at her church at around 10 o’clock on a September night in 2008. The assailants were never apprehended. Wright had lived at Wellspring since 2003. She became interested in Wellspring because of its proximity to her job and because of recommendations from several church members. She testified that security was an important factor in her decision.

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Photo courtesy of Facebook.

Wright testified that at the time she signed her lease, a Wellspring manager told her there were security officers on duty. The defendants conceded this fact. Wright testified this representation made her believe Wellspring would be a safe place to live.

An internal Wellspring employee manual stated, “We generally do not provide security for our residents, and employees should never indicate that we do so.” Wellspring had designed a courtesy officer program allowing residents affiliated with law enforcement to receive reduced rent in exchange for spending a minimum of two hours daily of their off-duty time walking the property, answering calls regarding incidents on the property and submitting daily reports to the property manager. The parameters of these agreements were not revealed to other tenants. Wellspring published a “security pager” number in a monthly tenant newsletter. The newsletter also prominently noted that security was a top priority with the complex and advised tenants to call the security pager or Richland County Sheriff’s Department if they saw “anything suspicious”.

There were no courtesy officers at Wellspring on the night of the abduction and robbery; in fact, the last time a courtesy officer had been employed was the previous July. Wellspring had continued to publish the pager number in its monthly newsletter. The tenants were not informed that there were no courtesy officers.

Wright argued, among other things, that Wellspring was negligent in failing to execute its courtesy officer program in a reasonable manner. The defendants argued that they did not owe Wright a duty to provide security and that, even if they did, that duty was not breached, and even if the duty was breached, their alleged negligence was not a proximate cause of the harm. The trial court granted the defendants’ motion for summary judgment. A divided Court of Appeals affirmed. On a writ of certiorari, the sole question before the Supreme Court was whether the Court of Appeals erred in failing to apply section 323 of the Restatement (Second) of Torts, which provides:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

  1. his failure to exercise such care increases the risk of harm, or

  2. the harm is suffered because of the other’s reliance upon the undertaking.”

The Supreme Court stated that it is well settled in South Carolina that a landlord generally does not owe an affirmative duty to a tenant to provide security. An “affirmative acts” exception exists, however, where one assumes to act even though under no obligation to do so. Wright’s brief acknowledged that South Carolina case law is not clear as to how the “affirmative acts” exception differs from the “undertaking” exception of the Restatement. The Supreme Court found that Wright’s negligence cause of action invoked the undertaking exception and held that summary judgment should not have been granted. The Court stated that there are questions of fact that a jury must resolve to ascertain whether a duty of care arose in this case.

Justice Kittredge’s strongly worded dissent said that the majority took the common existence of an apartment complex’s security officer program and morphed that limited undertaking into a sweeping duty to protect tenants from unforeseen criminal acts of third parties. The dissent found particularly troubling a lack of proximate cause.

Dirt lawyers who represent owners or managers of apartment complexes should take a careful look at this case with their clients.

*Wright v. PRG Real Estate Management, Inc., South Carolina Supreme Court Opinion 27868 (March 20, 2019)

Interested in buying a pristine SC island near Charleston?

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The price is $15 million; and the buyer may not be able to develop it

The Charleston Post and Courier reported on March 9 that Long Island, a large, private island between James Island and Folly Beach off the coast of South Carolina is for sale. You can read the article here and the listing here.

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Long Island, SC. (Photo credit: The Post and Courier)

According to the article, the current owners would like to find a buyer who would put the land under a conservation easement.  This easement would purportedly fit well with Folly Beach’s recent efforts to stem development in vulnerable areas.

The listing indicates the size of the island is about 4,600 acres, including approximately 147 acres of high land, and touts views of Morris Island Lighthouse and the Arthur Ravenel, Jr. Bridge.

Called a once-in-a-lifetime opportunity for outdoor enthusiasts to own a unique slice of coastal paradise, the purchase would include an archaeological site eligible for The National Register of Historic Places featuring Civil War artifacts. On the west end of the island is Star Battery, an earthen fort used by Union Forces during the Civil War. The remains of a causeway that leads to nearby Oak Island and dates back to the Civil War, is said to be dry during low tide.

The listing states that the high land is potentially developable and would be an outdoor paradise for fly fishing, wildlife viewing, kayaking and paddle-boarding.

A 2014 article in Forbes states that the island contains an interior roadway providing access to all parts of the island including the archeological site, but it can only be reached by boat. This article indicates the price was $29 million in 2014. The Post and Courier article says the island is almost entirely undisturbed, with no electricity, water service or roads.

The Post and Courier article states that there was an attempt by a builder to develop this island in 1999 into more than 200 home sites. But the proposal would have required a new bridge, the plan for which was rejected.

A challenge now would be to convince a conservation organization to participate, considering the high price tag. The current owners would like to recoup as much of their investment as they can, while protecting the island, if possible, according to the article. It sounds like quite a challenge!

Nat Hardwick sentenced to 15 years

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Nat HardwickThis blog discussed Nat Hardwick, a name familiar to many South Carolina real estate lawyers, last fall when he was convicted of embezzling more than $25 million from his former companies, including his former law firm, Morris Hardwick Schneider. Last week, he was sentenced to 15 years in prison. His co-conspirator and controller, Asha Maurya, was sentenced to seven years after she cooperated with the government.

Nathan E. Hardwick IV, 53, described himself as the face of Morris Hardwick Schneider, an Atlanta residential real estate and foreclosure firm that grew into sixteen states, including South Carolina. The firm once had more than 800 employees and boasted of offices in Charleston, Hilton Head, Columbia and Greenville.

On October 12, Hardwick was convicted in federal court in Atlanta of 21 counts of wire fraud, one count of conspiracy to commit wire fraud, and one count of making false statements to a federally insured financial institution. In federal court, sentencing is typically delayed, and the convicted person is released and allowed to get his affairs in order. In this case, however, Hardwick had been released pending trial on bond. After his conviction, he was described by the U.S. Attorney who prosecuted him as a flight risk and was handcuffed and taken to jail immediately.

This story hits close to home. My company was one of the victims of the crimes.

The prosecutor described an extravagant lifestyle that Hardwick enjoyed at the expense of others. The case was said to be particularly troubling because the illegal activity was orchestrated by a lawyer who swore an oath to uphold the law and represent his clients with integrity. The U.S. Attorney said he hoped the case sent the message that the FBI and the U.S. Attorney’s office will not tolerate this type of white-collar crime.

According to the evidence, from January 2011 through August 2014, Hardwick stole more than $26 million from his law firm’s accounts, including its trust accounts, to pay his personal debts and expenses. The firm’s audited financial statements showed that the firm’s net income from 2011 through 2013 was approximately $10 million. During that time, according to the evidence, Hardwick took more than $20 million from firm accounts.

Asha Maurya, who managed the firm’s accounting operations, reached an agreement last May with the U.S. Attorney’s office and pled guilty. She was expected to testify at the trial, but was unexpectedly not called as a witness.

Hardwick did take the stand in his defense and attempted to blame Maurya with the theft. He said that he trusted her to his detriment, that he was entitled to the funds, and that he was unaware that the funds were wired from trust accounts. Hardwick testified for more than a day and explained that he believed Maurya followed proper law firm procedures.

On the stand, Hardwick, described as the consummate salesman, said that he gave his cellphone number to almost everyone. He said he returned calls and messages within a few hours and instructed his employees to do the same. He apparently believed himself to be a master in marketing and customer service and prided himself in focusing on the firm’s expansion strategy. He hoped to expand to all fifty states and make money through a public stock offering.

With his ill-gotten gains, Hardwick bought expensive property, made a $186,000 deposit for a party on a private island, spent $635,000 to take his golfing friends to attend the British Open in 2014, paid off bookies, alimony obligations, and sent more than $5.9 million to various casinos, all according to trial evidence. Hardwick’s activities lead to the loss of his law license and the bankruptcy of his firm.

Forgive me for repeating myself

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But practitioners really need to read The Lean Law Firm

In October, this blog discussed a book I had just read,  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.  Now that I have attended a South Carolina Bar seminar by the authors, I am even more convinced that the methodology this book embraces is exactly what residential real estate practitioners need to adopt to assist them in reducing stress and growing value in their practices.

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One of the authors is Columbia consumer lawyer Dave Maxfield, who happens to be the brother-in-law of my co-worker, Dorothy Boudreaux. The other lawyer, Larry Port, is CEO of Rocket Matter, the cloud based legal practice management software company. The January 31 seminar made an impactful initial point: most law firms are in survival mode. They won’t progress unless the lawyers step back and take a look at the business to gain perspective.

What is a lean law firm?  In the words of Larry Port, 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.” The processes set out in this book are intended to teach lawyers how to increase their income while they are reducing their stress.

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.

Wouldn’t your closing process be improved if you were able to figure out and reduce or eliminate those matters that cause delay? I was in an office recently and noticed a great deal of foot traffic by staff members. I asked where everyone was heading and was told they were all probably looking for files. Wouldn’t that office’s process be improved by using closing software that makes every file constantly available to every person involved in the closing? I was in another firm with multiple branches and learned one branch had templates for the title work for each subdivision, but the other branches didn’t have access to the templates. Sometimes, just stepping back to take a look will reveal small tweaks that can vastly improve systems.

One of my favorite suggestions from the book is the use of Kanban boards, a project management tool used to visually depict work at various stages. The simplest Kanban boards would have three columns: “to-do”, “doing” and “done”. A Kanban board for a residential closing office might have these columns:  “file opening”, “pre-closing”, “title”, “document preparation”, “closing”, “recording”, “disbursement” and “post-closing”. Each closing would be depicted in the appropriate column. By paying attention to this workflow tool, a closing attorney would learn quickly where work bottlenecks, and improvements could be made efficiently.

I believe the advice I once heard:  every time you touch a closing file after the closing, you lose money. A Kanban board might reveal whether reducing the numbers of post-closing touches in your office would increase the income from each closing.

Does the book sound like 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. 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.

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.

I am now in the process of twisting Dave’s arm to translate “Lean” to residential real estate. If I am successful, I will certainly share his wisdom with my friends who practice residential real estate in South Carolina who are probably battling survival mode as they read this.

Here’s a new word to add to your vocabulary: “surban”

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Reston Town Center, Virginia

A new term has been coined and trademarked by John Burns Real Estate Consulting, a company that provides research and consulting services relating to the housing market. The term is “surban”, and it is defined as “a suburban area that has the feel of urban, with walkability to great retail from a house or apartment.”

Even though the company trademarked the term, its website indicates everyone has permission to use the word without the trademark. The company just wanted credit for coining the phrase. I don’t see any examples in South Carolina from a list compiled by the company, not any in the South, for that matter.

Millennials are apparently the impetus for the new term as they look for a compromise between city living and suburban space. They typically enjoy the choices of the city: restaurants, bars, shops music, ball games and movies. But when they start pairing up and having children, they, like their predecessors, began seeking more room and lower housing costs. Not only are millennials raising families, they are often saddled with student loan debt and unable to afford the costs of city living. But they don’t want the strip malls and chain restaurants of the suburbs.

The compromise? A blended type of neighborhood that combines the energy and walkability of the city with the space and affordability of the suburbs. Millennials want pubs, microbreweries and nice restaurants. They want retail shopping, but not the big box variety. They prefer boutiques with unique choices.

Examples of surban areas, according to John Burns Real Estate Consulting, include:

  • Reston Town Center in Washington, DC, suburb of Reston, Virginia
  • Downtown Naperville, Illinois, in the suburbs of Chicago
  • Old Town Pasadena, California, in the suburbs of Los Angeles
  • A-Town in Anaheim, California, in a neighborhood around the Angels Major League Baseball park
  • Legacy Town Center in Plano, Texas, in the suburbs of Dallas
  • Santana Row in San Jose, California
  • City Centre in Houston, Texas
  • Downtown Tempe, Arizona, in the suburbs of Phoenix
  • Larkspur, California, north of San Francisco
  • Geneva, Illinois, in the suburbs of Chicago

Maybe there are examples in Atlanta, Charlotte, or even Charleston, Greenville or Columbia. Let me know if you know of any!

Have you heard about “Zillow Offers”?

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It’s not available in South Carolina yet, but it may be a matter of time

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In early 2017, Zillow tipped 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 timeframe.

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.

The program was later launched in several other markets, Phoenix, Atlanta, Denver and Charlotte. And last week, Zillow announced that it would be expanding to Miami, Minneapolis-St. Paul, Nashville, Orlando and Portland in 2019. So far, nothing is in the works for South Carolina as far as we know, but I did get a kick out of one article that referred to one of the markets as “Charlotte, South Carolina”.

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!

We have a new attorney preference case

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…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.

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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.