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.

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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)

Don’t Share Fees with Non-Lawyers!

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New Ethics Advisory Opinion warns against web-based referral service

South Carolina Ethics Advisory Opinion 16-06 fields questions about an attorney directory website fixed-fee legal referral service. The service works like this:

  • Attorney signs up for the service by agreeing to offer certain flat fee services.
  • The fee for the service is set by the internet advertising directory website (service).
  • The service makes the referral to the attorney, who then contacts the client to arrange a meeting and begin the representation.
  • The service handles payment processing from the client and holds the funds until the legal work is completed.
  • Upon completion of the work, the service transfers the full amount of the fee to attorney’s account.
  • Upon completion of the work, the service charges the attorney a “per service marketing fee” which seems to be based upon the legal work provided and is only incurred when the lawyer provides the legal work. For example, the legal fee for an uncontested divorce may be $995, and the marketing fee is $200, while the legal fee to start a single member LLC is $595, and the marketing fee is $125.

Rule 5.4 of the Rules of Professional Conduct prohibits a lawyer from sharing legal fees with a non-lawyer. There are some exceptions set out in the rule, but those exceptions generally fall into two categories, payments to a deceased lawyer’s estate and payments to non-lawyer employees in a profit sharing compensation or retirement plan. The exceptions, of course, don’t apply to this attorney directory situation.

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The Ethics Advisory Committee stated that the situation described above where the service collects the legal fee and transmits it to the attorney and in a separate transaction, the service receives a fee for its efforts, is an indirect method to share attorney’s fees. Attempting to disguise the fee-sharing arrangement in two transactions doesn’t cure the problem.  Calling the fee received by the service a “per service marketing fee” also doesn’t cure the problem.

Rule 7.2 (c) prohibits a lawyer from giving anything of value for recommending the lawyer’s services, with three exceptions. One of the exceptions allows a lawyer to pay for the “reasonable costs of advertisements”. The Ethics Advisory Committee pointed to Comment 7 to the rule which lists reasonable advertising costs such as newspaper, radio and television advertisements and on-line directory listings.  The Committee stated that the permitted advertising is typically for a fixed cost per add or per run of air time, and that reasonableness of the costs can be assessed by the market rate.

The Opinion says that the internet service purports to charge the lawyer fees based on the type of legal service rather than the cost of advertising. Since it doesn’t cost the service any more to advertise online for a family law matter than for preparing corporate documents, the fees are not rational and do not fall under the exception for “reasonable costs of advertisements”.

Dirt lawyers, be careful when assessing any type of referral arrangement, and, when in doubt, ask questions of the Ethics Advisory Committee.

Good News for Condo Financing (and King Tut)

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Obtaining loans for SC’s coastal condominiums will become easier

The Housing Opportunity through Modernization Act (H.R. 3700) was signed into law by President Obama on July 29. This law will act to ease restrictions on mortgage financing for condominiums. The law reforms the process used by the Federal Housing Administration (FHA) to determine if condominium unit owners will be in a position to qualify for FHA insurance.

In 2009, FHA changed the rules for qualifying for insurance, leaving most condominium home buyers without the opportunity for FHA insured mortgages. The new law will result in some improvements for home buyers who view condominiums as an affordable housing option.

Under the new law, the FHA must issue guidance regarding the percentage of units that must be occupied by owners in order for the condominium project to be eligible for FHA mortgage insurance. The current requirement is 50 percent owner occupancy. In the event the FHA fails to issue guidance within ninety days of the effective date of the legislation, the required percentage for owner occupancy automatically becomes 35 percent.

Steve Martin King Tut
“Got a condo made of stone-a”

 

The new law amends the National Housing Act to modify certification requirements for condominium mortgage insurance to make recertifications of condominium projects substantially less burdensome than original certifications. The FHA is required to consider lengthening the time between certifications for approved properties and allowing information to be updated rather than resubmitted.

It will be interesting to see how the FHA implements the new law. Changes to FHA regulations and existing agency guidelines should be expected soon.

The National Association of Realtors has been a proponent of the new law and praised its passage in a press release as a victory for real estate agents and home buyers.

This law affects housing in other ways. It modifies HUD’s rental assistance programs, including Section 8 low-income (voucher) and public housing programs. In addition, it modifies the Department of Agriculture’s single family housing guaranteed loan program.

The expectation is that the new law will make home ownership for first-time buyers (and old King Tut in his “condo made of stone-a”) a little easier in the current economic environment.

Old McDonald Had a Farm

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South Carolina Court of Appeals says partition actions in probate court require an open estate; sends action back to circuit court.

The South Carolina Court of Appeals held last week that probate courts in South Carolina have subject matter jurisdiction over partition actions only where open estates are involved.*

The dispute involved a farm in Darlington County originally owned by S.W. Byrd. Mr. Byrd died in 1923, and his estate was probated in Darlington County and finally closed in 1948. The estates of several of Mr. Byrd’s heirs were not subsequently probated, and in April of 2012, E. Butler McDonald filed an action for partition and the determination of heirs in the Darlington County Probate Court.

At that time, more than ten years had passed since the deaths of Mr. Byrd’s original heirs. Since §62-3-108 of the South Carolina Code establishes a time limitation of ten years after death for the administration of an estate, these estates could not be probated at the time Mr. McDonald filed his action.

farmlandThe Probate Court determined the heirs of S.K Byrd and their percentages of ownership. The Probate Court also found that no interested party had expressed a desire to purchase the property and that physical partition of the farm was impractical. The farm was ordered to be sold at a public auction, and Mr. McDonald’s reasonable attorneys’ fees were ordered to be paid.

On appeal by the other heirs, the Circuit Court affirmed. On appeal to the Court of Appeals, the appellants made several arguments, but the Court of Appeals focused on subject matter jurisdiction. Section 62-3-911 of the South Carolina Code establishes the jurisdiction for probate courts and specifically states that an heir may petition the probate court for partition prior to the closing of an estate. Since it was clearly established at trial that S.K. Byrd’s estate was closed in 1948, an action to partition his farm should have been brought in the circuit court, according to the Court of Appeals. The probate court’s determination of heirs and their percentages of ownership was affirmed, but the order was vacated as to the remaining issues.

*Byrd v. McDonald, S.C. Court of Appeals Case 5409 (June, 8, 2016)

Beware of Cyberattacks on Free E-mail Services

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Think a client won’t sue for misdirected funds?  Think again!

domain securityE-mail services, even those with the tightest security possible, can be hacked. We have heard local stories, as close as Rock Hill and Charleston, of funds being misdirected by cybercriminals through intercepting e-mails and sending out fraudulent wiring instructions.

Law firms have taken action: encrypting e-mails, adding tag lines to emails warning that wiring instructions will not be changed, adding warning paragraphs to engagement letters, in addition to normal security efforts. Many offices now require confirmation of all wiring instructions by a telephone calls initiated internally. No verbal verification?  No wires!

Last month, an attorney in New York was sued by her clients in a cybercrime situation. This time, the property was a Manhattan co-op, and the funds amounted to a $1.9 million deposit. The lawsuit alleged that the attorney used an AOL e-mail account that welcomed hackers. The complaint stated that had the attorney recognized the red flags or attempted to orally confirm the proper receipt of the deposit, the funds would have been protected.

The old phrase “you get what you pay for” is definitely applicable in these situation. Attorneys who continue to use free email services are putting themselves and their clients at greater risk for cyberattacks. Criminals understand that free email services have low security against cyber-intrusion, so they naturally gravitate to those accounts for their dirty work.

I heard one expert say that free e-mail services are not only not secure, they are also unprofessional! Surely, lenders will soon look at this issue as they decide who will handle their closings.