dirt lawyer

Dear History, please stop repeating yourself!

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Hurricane Irma is the third disaster in two years for South Carolina

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Hurricane Irma is the third disaster to pummel our beloved state since this blog was launched in 2014. After the 1,000 year flood in October of 2015, Hurricane Matthew struck in October of 2016. Rebuilding is not complete from either catastrophe.

On my way to work this morning, I passed the remains of several businesses that were destroyed when Gills Creek flooded in 2015. Thankfully, I heard recently that Richland County is about to purchase those properties to turn them into green spaces. Other areas in and around Columbia are still in the rebuilding process or have been completely abandoned. Many homeowners have made their homes bigger, stronger and certainly taller. Others have given up and moved away.

Enter Irma. A friend joked on Facebook that we’re lucky here in South Carolina Irma passed us by. You would never know it passed us by from the many feet of water we’re seeing in pictures of Charleston, Beaufort, Hilton Head, Georgetown, Garden City and surrounding areas. And the pictures and video coming from Florida and the Caribbean, not to mention the pictures and video coming from the Hurricane Harvey disaster in Texas and Louisiana, all show unspeakable damage.

Our company’s home office is located in Jacksonville where surrounding streets are under water. Employees with power are trying to work remotely. Others are out of commission.

A wise man in our building here in Columbia said to me this morning that these disasters bring out the best and the worst in folks. There are looters, but there are many more heroes who have rescued their neighbors in boats. There are neighborhoods without power who are gathering in their streets for impromptu block parties. Chainsaws are chopping downed trees. Supplies and helping hands are being donated. Celebrities and charities are raising millions. I’d like to believe that we’re seeing much more good than bad in people.

Our hearts are breaking for those who have lost so much. Rebuilding will take time, resources and patience. Many have lost everything and are without insurance coverage. Millions are without power and water. Many are in shock.

Dirt lawyers are in an exceptional position to support clients who may not be familiar with the assistance available to them. We have all learned a lot in the last few years. I challenge each of us to continue to educate ourselves and to be available to offer the valuable advice our neighbors and others will need in the days ahead. Local, state and federal governments seem better prepared this time around and seem to be working better to coordinate efforts. Here is a link to the South Carolina Bar’s Key Assistance Numbers. South Carolinians are strong and resilient, and we are stronger and more resilient now than we were for the last disaster.

Let’s once again rise to the occasion, real estate lawyers, and provide the best advice available for our clients and friends who will need it as they sort out, clean up and rebuild.

Wells Fargo distributes new settlement agent communication

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Note: Settlement agents are scheduled to be re-evaluated

Wells Fargo delivered a memo entitled “News for Wells Fargo Settlement Agents” on March 23. The first paragraph cryptically announced that future communications will detail the Uniform Closing Dataset (UCD) that will become effective for lenders in 2018.

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For insight into the UCD, review Fannie Mae’s or Freddie Mac’s websites. Briefly, the UCD is going to be a common industry dataset to allow information on the Closing Disclosure to be communicated electronically. Fannie Mae and Freddie Mac have developed the UCD at the direction of the Federal Housing Finance Agency in an effort to enhance loan quality and consistency through uniform loan date standards. Stay tuned for more information on this topic and lenders gear up to comply.

The Wells Fargo memo also touted continued expansion of settlement agents who are using Closing Insight™.  Settlement agents who are just getting started were asked to take advantage of the support available at RealEC’s Closing Insight Resource Center at http://www.closinginsightresourcecenter.com or to contact the company at CISupport@realec.com or 800.893.3241. I encourage all South Carolina closing attorneys to get up to speed on this system as soon as possible.

The serious news from Wells Fargo, however, relates to a new effort to evaluate settlement agents.

The memo warned that Wells Fargo will evaluate the population of settlement agents who have closed loans within the past twelve months for problems such as missing documents, execution errors and other frequent problems that require curative work. As a result, settlement agents may receive letters indicating they are being removed from Wells’ list of approved settlement agents.

Processes are in place, however, to accommodate the customer’s choice for a settlement agent who is not on the approved list. Apparently, a new approval process will be instituted, but no detail on this process is provided.

house made of cashThe memo further indicates that attorneys’ ability to act as counsel for customers will not be impacted.  I don’t read this last directive to mean that attorneys who are not on the approved list will be in a position to close loans. They will only be in a position to dispense legal advice, if I am interpreting this correctly.

Settlement agents with questions are encouraged to communicate with Wells at WellsFargoSEttlementAgentCommunicatons@wellsfargo.com. I urge anyone who is interested in continuing to close Wells Fargo loans to hang onto this information.

Finally, the memo is requesting acknowledgement of Master Closing Instructions from all active and approved settlement agencies. Requests for this acknowledgement are coming from Wells Fargo in the form of e-mails to settlement agents. Please respond!

All lenders are beginning to hold settlement agents to higher standards. South Carolina closing attorneys are encouraged to stay abreast of changes and train, train, train staff members.

And, as always, contact your title insurance companies for insight into these matters.

New DOI rule: SC title insurance agents must be fingerprinted (Lawyers included!)

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Listen up, South Carolina dirt lawyers!

All title insurance agents must be fingerprinted for their next license renewals! The Department of Insurance has passed a new rule, effective January 1, 2017, requiring fingerprinting for all resident producers.

The DOI published a bulletin which you can read here. South Carolina Law Enforcement Division has established a contract with IdentoGo by MorphoTrust to handle the fingerprinting process. All title insurance agents will need to go to this company’s website, www.IdentoGo.com, to set up an appointment to be fingerprinted. Your zip code will be used to find the most convenient location.

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It is important that you do not wait until the month your license renews to begin this process. The bulletin advises that scheduling and processing may take up to ninety days. The cost for fingerprinting is $50.50.

Every lawyer’s first question is going to be, can’t they use my fingerprints from my Bar application?  The answer, we have been told verbally, is absolutely not. The DOI is emphatic that it will not accept fingerprinting from any other agency nor any other vendor. Every lawyer’s second question is going to be, does this apply to my staff members who are licensed agents?  It does.

Nonresident producers are not required to be fingerprinted.

As a reminder, licenses are renewed in your birth month. If you were born in an odd-numbered year, your next renewal will be in 2017.  If you were born in January or February of an odd-numbered year, you may be late if you haven’t already begun this process.  For those born in even-numbered years, you are safe until 2018.

Good luck!  Call your title insurance company if you have questions or need assistance.

Cyber Incident Preparedness for Closing Attorneys

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And what to do if you suspect a compromise

With the increase in wire fraud that is happening in closing offices around the country, our company recently shared two documents that I thought would be beneficial to pass along to all South Carolina dirt lawyers .

The first document is a Public Service Announcement from the FBI dated August 27, 2015 concerning Business Email Compromise (BEC). BEC is defined as a sophisticated scam targeting businesses working with foreign suppliers and businesses that regularly perform wire transfers. Legitimate e-mail accounts are compromised through social engineering and computer intrusion to conduct unauthorized wire transfers.

We have seen this happen in more than one law firm in South Carolina!

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This PSA states that the total number of victims from October 2013 through August 2015 was 8,179 and the total exposed dollar loss was $798,897,959!

The second document was prepared by Linda Grahovec, the Director of Education and Marketing for our company. This document provides two cyber incident checklists, one for use in preparing, and the other for use if your office is attacked.

Here are three pieces of advice for all closing attorneys:

  1. Use an e-mail system that requires two-factor authentication;
  2. Never wire funds based on the content of an e-mail. Always assume e-mail has been compromised, and validate the information by phone. A good practice would be to refrain from sending wiring instructions by e-mail.
  3. If you suspect fraud, contact the bank immediately.

Please remain vigilant! Read everything you can on this topic, and continue to update and guard your systems. One incident could easily put a law firm out of business. Title insurance companies are excellent sources of information and training on these topics! Call on them!

Just in Time for Halloween, SC Supreme Court Declines Frightening Request to Compel Random Lawyer Trust Account Audits

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The South Carolina Supreme Court amended the rules that govern lawyer discipline on October 25.* The big news here is not the very minor amendments that were adopted but rather the major requested amendments the Court declined to adopt.

The Commission on Lawyer Conduct and the Commission on Judicial Conduct proposed a rule amendment that would have imposed mandatory random audits of lawyer trust accounts. Without comment, the Court declined to adopt this rule change after “careful consideration”.

The Court also declined without comment an amendment that would have required a new position, a presiding disciplinary judge to act as a hearing officer to preside over disciplinary and incapacity hearings.

I have no idea why the Court made these decisions, but my guess is that the motivation revolved around the additional funds that these proposals would have required.

*Appellate Case No. 2015-0002336

Dirt Lawyers: Prepare to Advise Clients Struck by Disaster

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Georgetown, South Carolina (Image by abcnews.go.com)

Just prior to the destruction brought on by Hurricane Matthew to our beloved state on October 8th, I saw two funny quips, which proved that humor is not always lost in the face of disaster. A friend posted on Facebook a football metaphor, hoping Matthew’s aim would be “wide right”.  That didn’t happen. And a preacher friend of a friend put up a sign at his church:  “Mark, Luke and John, please come get your boy.”  That didn’t happen either.

What did happen, according to CoreLogic was $4-6 billion in damage from wind and storm surge damage in all states affected by Matthew. CoreLogic’s media advisory, which compares the destruction of Matthew to Katrina in 2005, Sandy in 2012, Floyd and 1999 and David in 1979, can be read here.  The damage from Katrina, for example, was in the range of $35-40 billion. Of the $4-6 billion damage from Matthew, 90 percent of insurance claims are expected to be related to wind and 10 percent to storm surge, according to the article.

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Springmaid Pier rubble, Myrtle Beach, South Carolina (Image by myrtlebeachonline.com)

Our hearts are breaking for our family members, friends and neighbors who have lost so much in this disaster. Some have not yet been able to return home and don’t know the extent of the damage at this point.

It was just one year ago that South Carolina was forced to begin recovery efforts from the 1,000 year-flood, and those efforts are far from complete. I said in a blog about the flood, and I will repeat here that for those of us old enough to remember, this disaster feels incredibly like the aftermath of Hurricane Hugo in 1989.

As we think back to the beautiful areas of South Carolina that were hardest hit then and reflect on those areas today, it seems that almost all of them are better and stronger and more beautiful than they were before the disaster. South Carolinians are strong and resilient, and we are stronger today than we were last year.

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Historic City Market under water in Charleston, South Carolina (Image by abcnews.go.com)

Dirt lawyers are in a unique position to advise clients who are not familiar with the assistance that may be available to them. I challenge each of us to pass along the information that will assist in recovery efforts.

For example, Fannie Mae and Freddie Mac wrote press releases reminding mortgagors of the options available for mortgage assistance in the affected areas. Those press releases can be read here and here.  FEMA resources are outlined here.

As always, I have confidence that South Carolina real estate lawyers will rise to the occasion and provide the best advice available for their clients. I am proud to be associated with this dedicated group of lawyers.

CFPB Structure Held Unconstitutional in PHH Case

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Don’t get excited; this shouldn’t change much for SC dirt lawyers.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled unanimously on October 11 that the structure of the Consumer Financial Protection Bureau allows its director to wield too much power.

This highly publicized case began when PHH Corp. was ordered by CFPB Director Richard Cordray to pay $109 million in restitution resulting from illegal kickbacks to mortgage insurers pursuant to Section 8 of RESPA. An administrative law judge had ordered a $6 million penalty at the trial level, but Director Cordray apparently wanted to set an example and ordered the “ill-gotten gains” to be disgorged. The trial court had limited the violations to loans that closed on or after July 21, 2008. Director Cordray applied the fines retroactively.

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PHH brought suit, arguing that the CFPB is unconstitutional because Director Cordray has the sole authority to issue final decisions, rendering the CFPB structure to be in violation of the separation of powers doctrine. The petition stated, “Never before has so much authority been consolidated in the hands of one individual, shielded from the President’s control and Congress’s power of the purse.” The petition argues that the Director is only removable for cause, distancing him from the power of the President, and is able to fund the agency from the Federal Reserve’s operating expenses, distancing him from Congress’s power to refuse funding.

The Court agreed. It wrote, “Because the Director alone heads the agency without Presidential supervision, and in light of the CFPB’s broad authority over the U.S. economy, the Director enjoys significantly more unilateral power than any single member of any other independent agency.”

The restriction that the Director can only be removed “for cause” was severed, giving the President the power to remove the Director at will. This decision effectively makes the CFPB an agency of the Executive Branch rather than an independent agency.

The Court did not agree with Director Cordray imposing the huge fine retroactively. The Court explained:

“Put aside all the legalese for a moment. Imagine that a police officer tells a pedestrian that the pedestrian can lawfully cross the street at a certain place. The pedestrian carefully and precisely follows the officer’s direction. After the pedestrian arrives at the other side of the street, however, the officer hands the pedestrian a $1,000 jaywalking ticket. No one would seriously contend that the officer had acted fairly or in a manner consistent with basic due process in that situation. Yet that’s precisely this case. Here, the CFPB is arguing that it has the authority to order PHH to pay $109 million even though PHH acted in reliance upon numerous government pronouncements authorizing precisely the conduct in which PHH engaged.”

It is not likely that this landmark decision will make any changes in our current closing practices. The Court stated specifically that the ongoing operations of the agency will not be affected. The Court vacated the CFPB’s order and remanded the case for further proceedings. We might also see an appeal. Regardless, the CFPB is still in charge of the closing process, and all the rules remain in place.

New Settlement Agent Communication from Wells Fargo

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Seller CD must be provided to Wells prior to disbursement

Wells Fargo communicated with its settlement agents (closing attorneys in South Carolina) by memo dated September 22. In case you missed it, you can read it in its entirety here.

The biggest news is that Wells will now require a copy of the seller Closing Disclosure along with the other documents required prior to disbursement. Apparently, receipt of the seller CD has been a challenge, necessitating the procedural modification.

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Another challenge has been the process for handling changes to the borrower’s CD. The memo stated that any changes known prior to closing, including changes to the closing numbers, the closing date and the disbursement date, must be communicated to the Wells Fargo closer.  Wells Fargo’s closer will provide an updated borrower CD and any other updated documents for closing.

Any changes detected at or post-closing should be communicated to:  SAPostClosingCommunications@wellsfargo.com.

The memo also discussed the phased rollout in progress for delivering training materials and other support for the use of Closing Insight™.  We encourage closing attorneys to read and comply with this information to avoid being left out when this process is fully implemented.

Ransomware: A Scary Prospect for Dirt Lawyers

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The Cyberdivision of the FBI is serious about ransomware!  An FBI speaker last Friday at the SC Bar’s excellent tech seminar, an annual seminar I highly recommend for solo and small firm lawyers, emphasized awareness and employee training are critical to prevent data losses in your operation.

Ransomware is a form of malware that is most often delivered through spear phishing e-mails. Spear phishing is a type of e-mail fraud that seeks unauthorized access to confidential data. Ransomware is what it sounds like. Once the fraudster gains access, your system is locked down, and money is demanded to provide access. You have to pay for your own data!

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“H4ck3rz R Us, how can I help you?”

The FBI recommends prevention, business continuity and remediation, but suggests that there is no guarantee of prevention even with the most robust controls in place. Methods of prevention include:

  • Provide extensive awareness and training for your staff.
  • Use strong anti-virus and anti-malware solutions that are set up to update automatically.
  • Regular scans should be conducted of the anti-virus and anti-malware solutions.
  • No user should be assigned administrative access unless that access is absolutely needed.
  • Those with administrative accounts should only use them when necessary.
  • Keep access to a minimum. If a user only needs specific files, he or she should not have access to other files.
  • Ask your IT professionals to implement controls to avoid common ransomware techniques.

But since prevention is not guaranteed, the most attention should be paid to business continuity and remediation. In short, back up your data regularly and regularly verify the integrity of the backups.  Secure backups. Ensure backups are not connected to the computers and networks they are backing up.

The FBI does not endorse paying a ransom to the fraudsters and teaches that paying the ransom does not always ensure regaining access to data.

The FBI encourages victims to contact a local FBI office immediately to report a ransomware attempt and to request assistance. Victims are also encouraged to report cyber events to the FBI’s Internet Crime Complaint Center (www.ic3.gov.)

Don’t Amend Your Master Deed As A Litigation Strategy

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The South Carolina Court of Appeals was not impressed!

The owners of The Gates at Williams-Brice (a great place to tailgate!) were surprised in 2012 when a maintenance company refused to bid on an exterior caulking/sealant job because of perceived construction defects.  Almost immediately, the owners’ association and an individual owner filed a complaint alleging negligence, gross negligence, breach of warranty and strict liability claims. The defendants were numerous developer and contractor entities.

The plaintiffs demanded a jury trial and sought to establish a class action for the condominium owners. The developer filed a motion for a nonjury trial and to strike the class action allegations. The Circuit Court ruled for the plaintiffs, and the defendants appealed. The Court of Appeals, in an Opinion dated August 31*, reversed.

The case contains several practice pointers for dirt lawyers, especially those who draft master deeds and amendments to master deeds and those who represent owners’ associations.

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The Master Deed establishing The Gates at Williams-Brice contained provisions requiring arbitration, waiving the right to a jury trial, waiving the right to a class action, and eliminating the right to secondary, incidental or consequential damages.

The original complaint was filed in December of 2012. An answer, opposing the certification of a class, was filed in May of 2013. Later that month, the complaint was amended to add defendants. And on May 23, the homeowners amended the Master Deed to remove the provisions that thwarted their litigation efforts.

The Circuit Court found that the provisions at issue were no longer within the Master Deed and that the defendants were precluded from enforcing unconscionable arbitration and alternative dispute resolutions that contained oppressive, one-sided terms.

On appeal, the defendants argued that the Master Deed could not be amended retroactively to remove the provisions at issue. Neither party contested that the homeowners’ actions were taken in anticipation of litigation. The Court of Appeals held that the homeowners knowingly, voluntarily and intelligently waived their rights to a jury trial and to a class action when they signed their deeds.

Citing a North Carolina case**, the Court of Appeals said that to remove the agreed-upon waivers retroactively would effectively substitute a new obligation for the original bargain of the parties. The Court pointed to the cites in the North Carolina case that indicate several jurisdictions apply a reasonableness standard when reviewing amendments to covenants and holding a provision authorizing an owners’ association to amend covenants does not permit amendments of unlimited scope; rather, every amendment must be reasonable in light of the contracting parties’ original intent.

The Court of Appeals discounted several cases involving amendments in condominium projects by the Circuit Court as not controlling. One such case found the developer’s amendment to increase maintenance assessments was enforceable against new purchasers. Another case approved an amendment regarding leasing restrictions. A third case found that an owners’ association properly amended covenants to prohibit the developer from advertising on the property. The final case held that an amendment authorizing the association to suspend utilities for unpaid judgments was properly applied against a unit owner because any alleged retroactivity was proper based on the contractual relationship between the association and the unit owner.

Other cases cited by the Circuit Court were dismissed as neither dealing with amendments to condominium declarations nor to master deeds.

The Court stated that it was unaware of any authority in South Carolina that would permit contracting parties to unilaterally alter agreed upon provisions once litigation has started.

The developer also argued that the amendments were ineffective because they failed to obtain the required permission of lenders and other “bound parties” such as the developer. The Court declined to address that issue because of its other conclusions.

What will the Supreme Court say if it gets the opportunity to rule on this issue?

 

*The Gates at Williams-Brice Condominium Association v. DDC Construction, Inc., S.C. Court of Appeals Opinion 5438 (August 31, 2016)

**Armstrong v. Ledges Homeowners Ass’n, Inc., 633 S.E.2d 78 (N.C. 2006)