Two new fraud scams

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The fraudsters keep updating their repertoires!

Fraudsters are creative! It seems as soon as we learn and educate our staff members about new fraud schemes, the swindlers change their schemes to keep us on our toes. I wanted to pass along two new schemes that recently came to my attention.

The first was reported in our company publication, Fraud Insights, and it involved a residential sale in Las Vegas. An astute title insurance company employee, Larissa Conrad, was able to frustrate the fraudster’s plans. Here’s how the scheme unfolded. On March 7, Larissa sent an estimated closing statement to the listing agent. The closing involved the payoff of a Wells Fargo mortgage. The listing agent purportedly sent back to Larissa, by email, an “updated” payoff statement. Larissa compared the two payoff statements carefully. The wiring instructions were particularly troubling:

Larissa called the payoff lender and confirmed her suspicion that the second payoff was from a fraudster. She then called the listing agent, using a trusted telephone number, and reported that someone was posing as him in the transaction and sending emails from an account that looked like his. She wired the correct payoff amount using the correct wiring instructions, saving $153,300.37.

The second scam, involving texting, was reported by CyberheistNews. The victim receives a text asking whether a password reset for a Gmail account has been requested. If not, the text advises, please reply with the word “STOP”. If the victim replies with “STOP”, the next text urges the victim to send a six-digit numerical code in order to prevent the password from being changed. By sending the code back to the attacker, the victim is enables the bad guy to complete the password change and to have access to the account and all its email.

Remember that Google and other companies will not ask whether you don’t want to do something with your account. A reply to a text like this often notifies the fraudster that a valid telephone number has been reached.

two factor authentication

A two-factor authentication process is highly recommended because it provides an additional layer of security and makes it harder for attackers to gain access. The victim’s password alone is not enough to pass a two-factor authentication process. Typically, the first authentication factor would be based on knowledge (a password) and the second factor would be based on possession (of an ID card, a token or a smartphone, for example). Ask your IT professionals for assistance is keeping your accounts safe by using this process.

And, as always, the best advice may be to keep schooling yourself about the various scams as they are reported. I’ll do my best to help!

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Despite a decade of litigation by lot owners….

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Two Surfside golf courses are being redeveloped into residential lots

The North and South courses at Deer Track Golf Resort in Deerfield Plantation have been closed for more than ten years and are finally being redeveloped as residential lots. Adjacent lot owners waged class actions in Horry County seeking to have the use of the properties in question restricted to golf courses or open spaces. While these battles were being waged in court, nature attempted to reclaim the properties. One property owner testified that his views changed from overlooking a manicured golf course to overlooking a “sea of weeds”.

Similar battles have been successful in other parts of the country. The cases are fact intensive and turn on the law of implied easements, which, of course, varies widely from state to state. Plats showing golf courses may provide rights in adjacent lot owners, depending on the recorded documents, the sales program and the law of implied easements in the location.

golf course

Let’s look at how the Deerfield Plantation cases were decided. First, the facts:  The golf courses and surrounding residential subdivisions were originally developed beginning in the late 1970’s. The plats contained notes to the effect that the streets were dedicated for public use but the golf courses were to be maintained privately and were specifically not dedicated to public use.

The covenants gave the lot owners no rights, property, contractual, or otherwise, in the golf courses. A Property Report that was delivered to all prospective lot purchasers described the costs of golf memberships, which were not included in lot prices, and stated that to be allowed to use the golf courses, members would be required to pay initial dues and annual dues and fees. The real estate agents made it clear during the sales program that the mere purchase of a lot did not give a lot owner any right or entitlement to use the golf courses. The deeds of the lots did not convey any easements or other interests in the golf courses.

One plaintiff, who was also a real estate agent, testified that he was never told the golf courses would operate in perpetuity and that the real estate agents never told other potential purchasers that the golf courses would always exist on the properties.

What caused the golf courses to fail? When the golf courses opened, there were 30 – 40 golf courses in the Myrtle Beach area. By the time the golf courses closed, there were nearly 125 courses. Property taxes in the golf courses increased from $7,800 per year to $90,000 per year.  And then the economy tanked. These three factors have occurred across the country to varying extents.

Now, let’s look at South Carolina law. In one of the cases, a 38-page Order of Thomas J. Wills, Special Referee, examined the law of implied easements in South Carolina. I’m summarizing and eliminating the citations for this brief discussion.

The Order states that implied easements are not favored by the courts in South Carolina and must be strictly construed. The intent of the parties controls the existence and scope of implied easements, and the best evidence of that intent is the recorded documents. While case law in South Carolina is clear that lot owners in subdivisions hold easements in streets shown on plats by which their lots are sold, the order states that this rule does not extend beyond access, which is necessary and expected for residential purposes. Finally, the order states that no implied easements in views, breezes, light or air exist in this state.

Finally, these golf courses will be redeveloped into new residential subdivisions. Will we see more of this litigation in South Carolina? Probably. While the law in South Carolina appears generally to favor redevelopment in these cases, there is no doubt that the facts in some of the situations may give rise to implied easements in adjacent lot owners, even in the face of our law.

HOA foreclosures are being challenged on multiple levels in SC

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The HOA won in a recent Court of Appeals case

In January, I blogged about a Federal class action lawsuit filed in Charleston seeking to invalidate non-condo foreclosures by owners’ associations. You can read that blog here but the short version is that the suit challenges foreclosures on the grounds that these non-profit corporations don’t have the power to create liens for unpaid assessments prior to obtaining judicial judgments. Condominium associations established through the Horizontal Property Regime Act have statutory authority to create liens, but the power of non-condo projects is created by restrictive covenants. We’ll have to wait and see how that suit turns out, but if the plaintiffs there are successful, foreclosure practice will change drastically in South Carolina.

gavel house

Our Court of Appeals decided a case* on April 4th that could have made drastic changes in another way. In fact, Richland County’s Master-in-Equity, Joseph Strickland, stated in his order that “the practice of homeowners’ association foreclosures would effectively be eradicated if (the Plaintiffs’) position came to bear.”

This 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 successful bid “shocked the conscience” and violated equitable principles. The parties agreed that the home was valued at $128,000. There was a mortgage balance of $66,004, leaving equity of $61,996. The Hales did not argue that there were irregularities in foreclosure process, but instead argued that the low bid should have encouraged the Master to use his gavel to “do equity”.

Comparing the successful bid to their equity using the “Equity Method”, the Hales argued that the bid amounted to 4.8% of the fair market value of the property. The HOA argued, using the “Debt Method”, that the bid must be added to the senior mortgage balance to judge its sufficiency because the successful bidder would have to pay the senior mortgage to have good title. In this case, using the Debt Method, the bid amounted to 54.94% of the fair market value. The Court of Appeals agreed that the Debt Method was the proper method for considering a senior encumbrance in a foreclosure.

The Court found no South Carolina cases that expressly weighed the two methods of judging a bid, but pointed to prior cases that considered the amount of a senior mortgage in the determination and found a 3.15% bid sufficient. One reason the Court of Appeals prefers the Debt Method is that it will result in “fewer set asides”.  In other words, the Court of Appeals is not interested in upsetting the foreclosure practice applecart at this point.

Justice Lockemy dissented, stating that he thought it improper to give a judicial sale buyer credit for assuming a debt it is not legally required to pay. He said the Court’s decision could create a perverse circumstance where a judicial sale bidder purchases property for a de minimis amount simply to capitalize on rental revenue until the senior lienholder forecloses. The majority called this argument a solution in search of a problem because there was no evidence that the successful bidder in this case was engaged in such a scheme and because the successful bidder must satisfy the mortgage to obtain clear title.

Foreclosure practice in South Carolina remains the same…for now.

* Winrose Homeowners’ Association, Inc. v. Hale, South Carolina Court of Appeals Opinion 5549 (April 4, 2018)

Scary telephone identity compromise story from one of our own

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Our company distributes a great publication, Fraud Insights, which tells scary fraud stories every month. Lisa Tyler, National Escrow Administrator, edits this publication and does a great job keeping us informed about new scams. A Fraud Insights story in March came from one of our company employees who told her personal identity compromise story to prevent it happening to the rest of us. I’m going to translate the story to South Carolina terms and call the victim Pam Paralegal.

Pam Paralegal was working on a messy residential purchase file in her office in Charleston and was not focusing on the telephone call on her cell phone that she received purportedly from her personal bank. The caller ID was indeed Pam’s bank’s name. When Pam answered, the caller identified herself as Jill Jones and said she was with the fraud department of the bank. Ms. Jones said she was going to text a code to Pam to confirm Pam’s identity.

scammer calling

Pam received the text code and read it back to Ms. Jones.  Ms. Jones then asked if Pam had authorized a $1,000 transfer from her account that morning. Pam said that she had not made that transfer. Pam told Ms. Jones that she would log into her online account to determine whether that transfer was showing up, but Ms. Jones told Pam the bank had already shut down her ability to access her account via the Internet. Ms. Jones told Pam that she needed her to read off an additional text code to authorize the shutdown. When Pam read the second text code back, the phone line went dead.

Pam immediately started receiving emails from her real bank. The first email confirmed a change in Pam’s password. The second email confirmed Pam had authorized a $1,000 withdrawal via electronic funds transfer. Pam called her bank to report the incident and later received a call back from the real fraud department. Pam was informed that the thieves had stolen $1,000 by using her Social Security number, and that they really had shut down her account.

Pam purchased a credit monitoring service, filed a police report, and contacted all three credit bureaus to make them aware of the incident. And she is still missing $1,000.

Here are seven tips from the Better Business Bureau ® (BBB) offers to protect against telephone scams:

  1. Do not trust caller ID: Victims fall for telephone scams because they assume the number on their caller ID is the correct person. Scammers can easily spoof numbers to make it look like a certain person is calling you, when in reality they are not. Some scammers will use your own telephone number for the caller ID. Others will use your prefix with a different last four digits to make you assume you’re being contacted by a neighbor.
  2. Do not give out personal information: Any legitimate person or business who reaches out to you will already have your information on hand. If they do not, or if you receive a call out of the blue asking for personal information, just hang up.
  3. Scammers usually pose as a trusted source: Like the story from Pam who was called from someone posing as an employee in the fraud department of her bank, scammers will pose as a trusted source to attempt to obtain information from you. Hang up immediately.
  4. Do not press buttons: Many “robocallers” will prompt you to “press 9” to be taken off their call list. Pressing 9 will only do the opposite and flood your phone with even more calls. Pressing a number on the keypad alerts the scammers that they have reached an active telephone number.
  5. Beware of big name companies calling: Scammers impersonate big name companies, charities and legitimate businesses, hoping that you will be more inclined to give personal information to them. If you receive such a call, hang up immediately, find the appropriate number and call the business to verify.
  6. Sign up for the Do Not Call Registry: To cut down on the amount of calls you receive, you can register your phone number for free through the Federal Trade Commission (FTC) Do Not Call Registry. This registry prohibits calls, informational calls, telephone survey calls and calls from companies you have recently done business with.
  7. Do not answer: If you receive a call from a number you don’t recognize, let it go to voicemail. Any legitimate person or business will leave a message. If a scammer decides to leave voicemail, you will have time to think about what is being asked by them, instead of being pressured on the spot to give up your personal information.

That last tactic is the one used in our household and with my business cellphone. If I don’t recognize the number, I don’t answer the call. It makes more sense to return the call of a legitimate caller than to become involved with a scammer or telemarketer. That’s my plan and I’m sticking to it!

South Carolina Dirt Lawyers: Are you as confused by the SC Supreme Court’s most recent implied easement case as I am?

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I’ve never maintained a list of the South Carolina real estate cases I find mystifying, but the most recent implied easement case, which involves a gravel driveway in Lexington County, may compel me to start.* When I say mystifying, I mean I can’t figure out why the Court came to the conclusion it did, based on what I had previously understood to be the law.

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The case is Gooldy v. The Storage Center-Platt Springs, LLC **, decided March 18.  One reason I found the case puzzling was that it failed to include the plat. When that happens, I usually attempt to draw the properties based on the language in the case, but I was unable to accomplish that in this situation. So for your edification, the main plat in question is included here.

Thanks to the efforts of my friend, Bill Booth, who sent the plat along with the chains of title and aerial views for both properties, I’ve at least figured out the facts in the case.

Here’s what happened. Congaree Associates owned 500 acres in Lexington County. In the 1980s, Congaree developed a residential subdivision of thirteen lots, called Westchester Phase I. Robert Collingwood created the plat for the subdivision. The plat was dated August of 1983 and was recorded. The northernmost lot (Lot 13) bordered the property now owned by Gooldy. This plat does not show a road crossing Lot 13. Six months later, in January of 1984, Collingwood was asked to prepare a survey for Westchester Phase II. That plat included the disputed road as “50’ Road”. The plat was conditionally approved, but the developer abandoned the subdivision. We don’t know the date of this abandonment.

In December of 1985, Collingwood prepared the Loflin plat, linked above. Note the “50’ Road” bordering the 0.68 tract. In September of 1986, Congaree conveyed the 0.68 tract to Loflin by a deed that incorporated this plat but made no mention of the road. The 0.68 acre tract was conveyed four times during the next sixteen years, and each deed incorporated the Loflin plat. The final conveyance was to Gooldy in January of 2002. Gooldy used the road for access for himself and the customers of his chiropractic business. In 2007, Congaree conveyed a 7.5 acre tract to The Storage Center. The disputed road was included in the 7.5 acre tract. The Storage Center’s representatives informed Gooldy that he was no longer entitled to use the road. Gooldy filed suit seeking to establish an easement.

The master in equity held that the deed incorporated the plat and established a presumption of an implied easement which The Storage Center failed to rebut. The master found that because Collingwood surveyed Westchester Phase I and II, he knew Congaree intended to build a road, and armed with that knowledge, Collingwood included the road on the Loflin plat.  Huh?  What if another surveyor had been employed? Does the fact that a surveyor called it a road make it so?

The Court of Appeals reversed, holding the presumption did not arise because the deed only incorporated the plat to describe the metes and bounds of the 0.68 acre tract rather than to demonstrate the intent to create an easement.

The Supreme Court reversed, holding that the Loflin plat created the presumption of an implied easement as established by Blue Ridge Realty Co. v. Williamson*** and its progeny. In Blue Ridge, a developer subdivided its property into lots and streets and recorded the plat. The Court held that purchasers of lots with reference to the recorded plat acquired every easement, privilege and advantage shown on the plat, including the right to use all the streets, near or remote, shown by the plat by which the lots were purchased.

There is no question that the Loflin plat was in The Storage Center’s chain of title. And there is no question that the two properties share a common grantor, Congaree Associates. What is missing in my understanding of the Blue Ridge holding is a subdivision plat, by which conveyances from the common grantor to Loflin and The Storage Center were made. Here, the common grantor did record a subdivision plat before any out conveyances were made and it did not show the road. Years later, the surveyor, who happened to have knowledge of a proposed (but later abandoned subdivision), depicted a road that he knew would be used if the subdivision was created on a plat he made, not for the common grantor, but for the purchaser, Loflin.  And that plat and a deed referring to it created an implied easement.

If this case makes sense to you, please explain it to me!

Here are two off the top of my head:  Smith v. Cutler and Boone v. Quicken Loans, Inc. Name your favorite!

** South Carolina Supreme Court Opinion 27782, March 14, 2018.

*** 247 S.C. 112, 145 S.E.2d 922 (1965).

SC Supreme Court holds email provides sufficient written notice

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….for at least one purpose

This blog is about dirt, but from time to time, dirt lawyers should review the rules our brother and sister litigators follow. Why? Sometimes those rules bleed over into our world, and sometimes, unfortunately, the transactions we handle are subject to litigation. And in this “ever changing world in which we live in”*, we should pay particular attention to changing rules involving technology. This is one of those changes.

The South Carolina Supreme Court held on February 28 that an email that provides written notice of entry of an order or judgment, if sent from the court, an attorney or record, or a party, triggers the time to serve a notice of appeal under Rule 203(b)(1) of the South Carolina Appellate Court Rules (SCACR)*.  And the Court held that this is such a novel question of law that its holding applies only prospectively, and not to the case at hand.

Here’s the background. On December 15, 2014, the master-in-equity denied the foreclosure defendants’ petition for an order of appraisal. That same day, the master’s administrative assistant emailed a signed and stamped copy of the order and Form 4 to the bank and the defendants. Three days later, the defendants received a copy of both documents in the mail.

Believing the time to appeal began on the day they received the documents in the mail, the defendants served notice of appeal on January 15, 2015, which was thirty-one days after the email and twenty-eight days after they received the documents in the mail.

The Court of Appeals held that the email triggered the time to serve notice of appeal. On appeal to the Supreme Court, the petitioners did not dispute that the email constituted written notice of entry of the order or judgment. But they argued that the time to serve notice of an intent to appeal is only triggered when written notice is received by mail or hand delivery according to Rule 5 of the South Carolina Rules of Civil Procedure (SCRCP). The Supreme Court held that the SCRCP do not apply to appellate procedure.

The Supreme Court examined Rule 203(b)(1), SCACR, which requires that a notice of appeal must be served within thirty days after receiving written notice of entry of the order or judgment and held that there is no requirement of service. All that is required, according to the Court, is that the parties receive notice. Further, there is nothing in the appellate court rules suggesting that the manner in which a party may receive notice is limited to the methods used to effectuate service.

Got it, dirt lawyers?  It’s technical, but this holding suggests that our Court is gradually accepting the technology we use every day as sufficient for notice purposes. One lesson for us is that we should be careful what we say in our emails as we handle our transactional practices! Another lesson for us is that we should all check our spam and junk email files to make sure we receive all communications that may create responsibility or liability for us.

*…with sincere apologies to Sir Paul McCartney.

**Wells Fargo Bank, N.A. v. Fallon Properties South Carolina, LLC, South Carolina Supreme Court Opinion 27773, February 28, 2018.

Fake news? No, a fake homeowners’ association!

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The schemes fraudsters use to dupe property owners out of their hard earned money seem to get stranger and creepier! On February 8, a television station in Kansas City, Missouri, FOX4, reported on a homeowners’ association scam involving a quiet neighborhood in Northland Missouri.

The station reported that for years, people living in the Summerfield subdivision ignored the invoices that arrived in the mail demanding payment to a homeowners’ association. Summerfield has no owners’ association! “Summerfield Homeowners’ Association” has no board and provides no services, but someone in its behalf mailed invoices and later filed liens against the neighborhood homes.

One homeowner reported that when he moved into the neighborhood in late 2017, he was told that there was no owners’ association and no monthly assessments. But just before Christmas, a $445 lien was filed against his home as well as thirty other homes in the neighborhood.

The liens made reference to a telephone number for a company that manages the association, Column’s Park, LLC, but the man who answered the telephone at that number, according to the news report, was “some random guy” who said the number had belonged to him for five years and had nothing to do with Summerfield subdivision. The man purported told callers to let everyone in the subdivision know that he had not caused the problem, and that he was convinced it was a scam. He was apparently weary of fielding the telephone calls of the frustrated homeowners.

Unable to resolve the conundrum themselves, the neighbors called FOX4 Problem Solvers for help. The television station traced the liens to two individuals, one residing in a federal prison, convicted on an earlier charge of mortgage fraud. This convict apparently came up with a new idea for duping consumers out of money. The other individual said she believed the subdivision should have an owners’ association to pay for the upkeep of a neighborhood drainage basin. The connection between the two individuals was unclear.

The owners finally took action by hiring an attorney to assist them in eradicating the liens.  What a story! Hopefully, we won’t see this one in South Carolina.