SC Real Estate Lawyers: Prepare To Advise Clients Struck By Disaster

Our hearts are breaking for our family members, friends and neighbors who have lost so much in this flooding disaster. Charleston and Columbia and the boroughs, towns, cities and counties between will rebuild, but it will take time, resources and patience. Many have lost everything and are without insurance coverage because flooding was so unexpected in many areas. Many are without power and water. Many are in shock. And we are being told the flooding will get worse before it gets better.

For those of us old enough to remember, this disaster feels incredibly like the aftermath of hurricane Hugo in 1989. As I think back to the beautiful areas in 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 yesterday.

Dirt lawyers are in an exceptional position to support clients who are not familiar with the assistance that may be available to them. I challenge each of us to educate ourselves to be available to offer the valuable advice that will be needed in the days, weeks and months to come. I am not knowledgeable on these topics at this point, but I am beginning to learn today and will pass information along via this blog. If anyone already has a wealth of information and is comfortable with sharing it, please pass it along to me, and I will get it out. Here are a few points I’ve learned so far.

The U.S. Department of Homeland Security’s Federal Emergency Management Agency (FEMA) has announced that federal emergency aid has been made available to areas affected. President Obama authorized FEMA to coordinate disaster relief efforts and to identify, mobilize and provide, at its discretion, equipment and resources necessary to alleviate the impacts of the emergency. W. Michael Moore has been named the Federal Coordinating Officer for the federal response operations in the affected area. For more information, go to www.fema.gov.

Governor Hailey has announced that South Carolina will act closely with the federal government to protect the citizens of South Carolina. At this point, the State is dealing with road closures, emergency responses, and water power issues, but announcements are already being made about disaster relief. We should all remain vigilant about ways our clients may obtain assistance.

Clients should begin now to make inventories and take pictures of damage. FEMA teams are on the ground now and will (slowly) begin to work with individuals and businesses. Clients should get in touch with their insurers as soon as possible.

Those with mortgages should contact lenders who may provide relief in the form of loan modifications, restructuring, temporary suspension or reduction in payments, waivers of late payments and/or suspending delinquency reporting to credit bureaus. To begin researching some of the options your clients may have, check out Fannie Mae’s site: http://knowyouroptions.com and Freddie Mac’s site: https://ww3.freddiemac.com. The U.S. Department of Housing and Urban Development (HUD) provides a 90-day moratorium on foreclosures of FHA-insured home mortgages following natural disasters as long as the property is:

within the boundaries of a presidentially declared disaster area, and
the property was directly affected by the disaster.

The time period may be extended if:

the disaster affects a large area, or
is especially severe.

If a client’s property was not damaged by the disaster, but the disaster did affect his or her financial viability, your client might also qualify for a moratorium.

During times of natural disasters, the Veteran’s Administration (VA) encourages lenders and servicers to:

establish a 90-day moratorium on initiating new foreclosures, and
help individuals affected by a natural disaster by offering forbearance or modification of veterans’ loans.

Advise clients to gather information like credit reports, proofs of employment and income.

Unfortunately, some clients may need to be advised to contact a bankruptcy lawyer. Chapters 7, 11 or 13 may be alternatives that should be considered, depending on circumstances. I always tell real estate lawyers that they should know just enough bankruptcy law to know when to call in a bankruptcy practitioner. This may be one of those times for numerous clients.

Let’s rise to this occasion, real estate practitioners, and provide the best advice we can for our clients who are in dire need at this time.

Still Need to Reach Out to Your Realtor® Partners About TRID?

Some new tools are available!

Residential dirt lawyers may still need to reach out to their real estate agent partners to discuss how the CFPB rules will affect closings after October 3. Some new resources are available to assist in that effort.

I previously blogged about five things real estate agents should know before the new rules become effective. Now there is more useful information in a format that is easy to share.

On September 17, Richard Cordray, Director of the CFPB, met with an officer of the National Association of Realtors® (NAR) to unveil online tools designated to help consumers and real estate professionals navigate the new closing procedures.

The CFPB had previously developed an array of online tools for prospective home buyers, the most important of which is an interactive resource called, “Your home loan tool kit, a step-by-step guide”. This guide allows consumers to perform calculations and obtain information to assist them in understanding their financial prospects for obtaining financing and avoiding pitfalls associated with the process.

The CFPB encourages real estate professionals to consider linking the toolkit on their websites to position themselves as trusted sources of information for consumers. I encourage residential dirt lawyers to do the same to position themselves for their consumer clients.

Last week’s announcement included a new resource called “Guide for real estate professionals”, the goal of which is to “ensure smooth and on-time closings”. I encourage real estate lawyers to use this new guide to connect with their real estate agent partners. Link it on your website. Send the link to you best real estate agent contacts. Offer to meet with them to answer questions. Your goal is to be perceived as a thought leader and problem solver when questions begin to surface after October 3rd.

South Carolina residential real estate lawyers should also keep in mind that their title insurance companies have prepared to assist in the transition. Don’t hesitate to use your title insurance company friends as valued resources. They are ready! Their goal, like yours, is to give their very best customer service as we all navigate these new closing rules together.

Dirt Lawyers Will Like This Mortgage Satisfaction Case

S.C. Supreme Court holds equity lines are subject to the timely satisfaction statute.

In an opinion written by Justice Beatty, our Supreme Court held on August 5 that open-ended mortgages are satisfied in the same manner as conventional mortgages and under the same statutory requirement for timely satisfaction by lenders.

Regions Bank v. Strawn involved a mortgage foreclosure against Robert and Nancy Borchers. The Borchers counterclaimed seeking to recover from Regions Bank under §§29-3-310 and 29-3-320 of the South Carolina Code based on the bank’s failure to satisfy the mortgage within the three-month time period required.

mortgage jenga The home had been purchased from Cammie Strawn, who had taken title from her then-husband, Richard Strawn. Mr. Strawn had previously obtained the home equity line of credit. At the time of the Borchers’ closing, the balance of the mortgage was $32,240.42. Immediately after the closing, the Borchers’ attorney, James Belk, had an employee deliver a payoff check and a mortgage satisfaction transmittal letter to Regions Bank. The check had the words “Payoff of first mortgage” typed on it.

Instead of satisfying the mortgage, the bank applied the check to the balance, bringing it to zero, and provided Richard Strawn with new checks even though he had not owned the home for more than two years. Mr. Strawn spent more than $72,000 on the equity line.

When Regions Bank attempted to collect on Mr. Strawn’s debt by foreclosing on the Borchers’ home, the Borchers answered, counterclaimed and moved for summary judgment. The bank argued that a revolving line of credit should be handled differently than conventional mortgages, and this particular mortgage could not be satisfied without instructions from Mr. Strawn.

The trial court and Court of Appeals ruled in favor of the Borchers. On appeal to the Supreme Court, Regions Bank made two basic arguments: (1) open ended mortgages are an exception to the statutory satisfaction requirement because only the original borrower is authorized to request a satisfaction; and (2) the Borchers could not assert a violation of the mortgage satisfaction statutes because their attorney had the authority to satisfy the mortgage pursuant to the attorney satisfaction statute (§29-3-330).

The Court affirmed and held that the first argument failed because the mortgage itself contemplated that the property may be sold and specifically stated that it would be binding on the mortgagor’s successors and assigns. Also, the court stated that anyone with an interest in mortgaged property is allowed to request a satisfaction upon payment, and there is no exception for equity lines of credit.

As to the argument that the Borchers’ attorney could have satisfied the mortgage, the Court stated simply that this argument is without merit because the statutory framework does not exempt a mortgage holder of an equity line from the penalty provisions for failing to satisfy a mortgage within the required time frame.

This is a good opinion for South Carolina closing lawyers!

Be Vigilant to Prevent “Business E-mail Compromise” Scams

Wire fraud is on the rise! Train your staff!

United States business e-mail accounts are under attack by sophisticated fraudsters.

The FBI, Financial Services Information Sharing and Analysis Center (FS-ISAC) and the United States Secret Service issued a financial services bulletin on June 19 warning against increasing wire transfer fraud against U.S. businesses referred to as “Business E-mail Compromise” (BEC) scams.

The bulletin warned that BEC is a type of payment fraud that involves the compromise of legitimate business e-mail accounts for the purpose of conducting unauthorized wire transfers. Many compromised accounts belong to business CEOs or CFOs. The funds are primarily sent to Asia, but funds involved in these schemes have been diverted to locations around the globe.

BEC fraud compromises e-mail accounts through phishing, social engineering or malware used to obtain the user’s password. Once an e-mail account is compromised, fraudsters begin accessing and reviewing e-mails, including meeting and calendar information, contacts lists, and information concerning business partners, vendors and customers.

This activity enables the fraudsters to interject themselves into normal business communications masquerading as the person whose account was compromised. This reconnaissance stage lasts until the actor feel comfortable enough to send wire transfer instructions using either the victim’s e-mail or a spoofed e-mail account. E-mails are typically sent to an employee with the ability to wire funds. A common tactic is to wait until the victim is away on legitimate business travel to send new wire instructions, making it more likely that individual would use e-mail to conduct business and making it more difficult to verify the transaction as fraudulent while the victim is in transit. The requests will sometimes state that the wire transfer is related to urgent or confidential business matters and must not be discussed with other company personnel.

Other incidents involve the compromise of a vendor or supplier’s e-mail account with the intention of modifying the bank account associated with that business. This scheme may also be labeled “vendor fraud” and often involves last minute changes of the bank and account number for future payments.

There is a relatively easy fix: all wire information received via e-mail should be verbally verified using established business telephone numbers.

Other suggestions to guard against this fraud are:

Limit the number of employees with authority to handle wire transfers.
Have a second employee designated as an approver for any wire transfer requests.
Be careful opening attachments and clicking on links even if the e-mail appears to be from a legitimate source if you believe wire instructions may be included in the communication.
Look out for e-mails that contain significant changes in grammar, sentence structure and spelling compared to previous communications.
Look out for suspicious communications particularly toward the end of the week or the end of a business day. The fraudsters will have more time to access and divert funds.
Maintain a file, preferably in non-electronic form, of vendor contact information, including telephone numbers.
Look out for “spoofed” e-mail addresses that are made to look like the real addresses. Fraudsters use tactics like character substitution, addition and omission to make e-mails addresses appear legitimate. Here are some examples using a Chicago Title address, richard.roe@chicagotitle.com

roe@chicag0title.com
roe@chicagotit1e.com
roe@chicagotitlee.com
roe@chicagottle.com
roe.chicagotitle@gmail.com
roa@chicagotitle.com

Be wary of wire transfers to countries outside of normal trading patterns.

Incidents should be reported to local offices of the FBI or Secret Service or to:

Dirt lawyers, protect your businesses and your clients’ funds by following these critical guidelines!

Another Lender Communication to Settlement Agents…

… And a denial from the CFPB.

news Bank of America answered several frequently asked questions from settlement agents by memo dated June 9.

Significantly, BofA indicated that agents will not be allowed to accept its title or closing orders if they are not registered with Closing Insight™. Because BofA and several other lenders will require Closing Insight™, South Carolina closing attorneys who have not yet registered should follow this link to do so.

Asked whether BofA will require the use of ALTA model settlement statements, the bank responded that it prefers the ALTA model form if a closing attorney chooses to use a settlement statement to supplement the Closing Disclosure (“CD”), but specified that the settlement statement figures must reconcile to the CD and a copy of the settlement statement must be provided to BofA. The memo also stated that all revised fees and costs will require both bank approval and an amended CD. In other words, fees and costs cannot be revised by simply supplementing the CD with a settlement statement.

ALTA’s settlement statements are available for review and use at this link.

The memo confirmed our thinking that separate CDs will be provided to the buyer and the seller. BofA added that the buyer and seller will not sign the same form nor see the contents of the other party’s CD. Further, BofA will instruct the closing attorney to prepare and deliver the seller’s CD and to provide copies of CDs to the real estate agents.

Finally, the bank clarified its process for making post-disbursement fee modifications. If the closing attorney identifies the need for a change in the numbers reflected on the CD, the attorney must request that the “collaboration session” be reopened in Closing Insight™, and the bank will review the update made by the attorney to determine whether a revised CD is necessary. The party in possession of any excess funds will be responsible for sending the funds to the buyer/borrower, while BofA will prepare and send the revised CD to the buyer/borrower. The closing attorney will be responsible for revising and delivering the seller’s revised CD, if necessary.

In related news, on June 3, the CFPB released a fact sheet in response to “much information and mistaken commentary” surrounding perceived closing delays that will be caused by the implementation of the new rules. The CFPB denied that the new CDs will delay closings “for just about everybody.” In response to the belief that any change in the CD will cause a new 3-day review period, the CFPB clearly stated that only the following matters will trigger an additional 3- day wait:

The new APR (annual percentage rate) increases by more than 1/8 of a percent for fixed-rate loans or ¼ of a percent for adjustable loans. A decrease in the APR will not require a new 3-day review if it is based on changes to interest rate or other fees.
A prepayment penalty is added, making it expensive to refinance or sell.
The basic loan product changes, such as a switch from fixed rate to adjustable interest rate or to a loan with interest-only payments.

The following circumstances will not require a new 3-day review, according to the fact sheet:

Unexpected discoveries on a walk-through such as a broken refrigerator or a missing stove, even if they require seller credits to the buyer.
Most changes to payments made at closing, including the amount of the real estate commission, taxes and utilities proration, and the amount paid into escrow.
Typos found at the closing table.

The CFBP’s denial notwithstanding, we are all naturally concerned about other matters that will cause delays during the transition period, particularly the steep learning curve that must be overcome by everyone involved in closings. But we will all work hard to get through the transition period together! We’re predicting that closings will be much smoother by the beginning of 2016.

Donut Fridays

Ethics Opinion gives them a thumbs up!

Savvy residential dirt lawyers continue to explore innovative marketing methods. A recent Ethics Advisory Opinion (15-02) issued by the Ethics Advisory Committee of the South Carolina Bar blessed the following scenario, with a few caveats:

“Law Firm would like to pursue a practice referred to as “Donut Friday,” where an employee of Law Firm visits the Firm’s existing vendors (e.g., banks, real estate agencies, etc.) and delivers a box of donuts to these vendors. Included with the box of donuts are a dozen koozies bearing the name of Law Firm, as well as a fee sheet, a pamphlet containing information about Law Firm and its staff, and a coupon for $50.00 off Law Firm’s fee for a consultation or real estate closing. None of the marketing materials is addressed or directed to any one person, nor does the material request that existing vendors refer business to Law Firm, although the intent is to receive referrals.”

The Committee stated as a preliminary matter that the mere delivery of gifts or other marketing materials to a business generally without delivery to specific individuals does not constitute solicitation. For that reason, Rule 7.3 of the Rules of Professional Responsibility does not apply. Enclosing law firm materials in a donut box does constitute lawyer advertising, making the remainder of the advertising and communication rules (7.1, 7.2, 7.4 and 7.5) apply.

Because the donut box recipients are existing law firm vendors who refer closing business to the firm, the specific rule at play, according to the Committee, is Rule 7.2(c), which prohibits giving “anything of value to a person for recommending the lawyer’s services.” The Committee specified that as long as the weekly donut boxes are delivered regardless of whether the lender or real estate agency had referred clients to the law firm that week, and regardless of how many, then the requisite quid pro quo for a Rule 7.2 (c) violation does not exist. The rule would be violated, however, if the delivery of donuts was contingent on the referral of business.

keep_calm_and_eat_a_donut

The Committee said that only the donuts, koozies and coupons (not the fee sheets or pamphlets) would be considered things “of value” under Rule 7.2 because the rule contemplates value to the recipient and not cost to the sender. Finally, the Committee stated that although the Rules of Professional Conduct are “rules of reason”, the prohibition on giving “anything” of value contains no explicit de minimis exception.

Kudos to the law firm that devised this marketing ploy and received the blessing of the Ethics Advisory Committee!

BB&T Follows the Lead of Other Large Lenders

It will produce and deliver Closing Disclosures

BB&T announced on May 26 that it will be responsible for completing and delivering borrowers’ Closing Disclosures after the Consumer Financial Protection Bureau’s (CFPB’s) TILA-RESPA Integrated Mortgage Disclosures (TRID) rule becomes effective on August 1.

By making this announcement, BB&T joins Bank of America, Chase, Citi, Wells Fargo, SunTrust and Freedom Mortgage in removing the responsibility for preparing the borrower’s settlement statement from the hands of settlement agents (closing attorneys in South Carolina). Closing attorneys will prepare the seller’s CD as well as other forms necessary for disbursement. It is clear that the borrower’s CD will not contain sufficient information for disbursement, which will continue to be the responsibility of the closing attorney.

Like the other lenders, BB&T confirmed in its announcement that it will continue to work with closing attorneys to determine the fees and other information required for the Closing Disclosure.

stay tuned BB&T also announced, like several other large lenders, that it will use the web-based portal, Closing Insight™, to gather the information and data required to complete the CD. Closing attorneys were encouraged to register with Closing Insight™ immediately.

BB&T promised to provide further communications and training to settlement agents prior to August 1.

Accountants Develop ALTA Best Practices Guidelines

Dirt lawyers: Your CPA should be able to assist!

accountant guy The American Land Title Association announced on April 28 that the American Institute of Certified Public Accountants (AICPA) has issued guidelines for CPAs to verify whether closing attorneys comply with ALTA’s Best Practices.

The guidelines provide a uniform framework to ensure CPAs will perform ALTA Best Practices compliance testing and reporting in the same manner and in accordance with AICPA standards. By engaging a CPA who will use the new guidelines, closing attorneys should be confident about the quality of the assessment process.

We are not aware of any lenders doing business in South Carolina who have indicated at this point that they will require third party certifications. However, Mississippi based regional BancorpSouth announced in early March that its approved closing agents must comply with Best Practices through a certification from an independent third party vendor acceptable to the bank. The deadline for obtaining the certification was stated to be July 31.

Wells Fargo announced it supports ALTA’s Best Practices as sound business practices that should already be in place. Wells stated in a memorandum to its closing agents that completing a certification by August 1 will not be a requirement, but the bank hopes closing agents will, at minimum, have already completed a self-assessment and addressed any identified gaps by that date.

SunTrust Mortgage announced that it will require closing agents to complete an ALTA Self-Assessment no later than July 1, 2015.

Lenders will likely refine their requirements as we get deeper into implementation. It would not be surprising to hear that any lender who does business in South Carolina will require third party certifications, particularly since CPAs are now “in the loop” and able to make assessments.

The bottom line at this point is that all residential closing attorneys who plan to remain in the business should become Best Practices compliant as soon as possible so they will be able to meet any requirements along these lines that their lenders may impose.

If you need help with Best Practices compliance, call your title insurance company! They are able, willing and ready to assist!

Five things lenders need to know before August

Dirt lawyers: Educate your lender contacts!

Our company has developed resources to equip dirt lawyers to educate lenders about how the CFPB will impact them beginning August 1. I’m sharing a few tips with the letstalkdirtsc.com audience because everyone will benefit if lenders are prepared.

As we have traveled the Palmetto state talking to lawyers, real estate agents and lenders, we have learned that many of the local folks are not familiar with the new rules, even the significant players in the market. We understand the corporate offices of national lenders may not have pushed this information down to the local level at this point. Any lawyer who will provide valuable information to local contacts now will be perceived as an important partner!

This is a primer, a very basic beginning point. As the software companies complete their updates, everyone involved will be trained on the details of the new rule and forms. For now, let’s give our lender partners the following information:

Who will be responsible for preparing the Closing Disclosure? The lender will be ultimately responsible for preparing the CD (the document that replaces the HUD-1 and final TIL Disclosure). Four national lenders, Bank of America, CitiBank, Wells Fargo and Chase, have announced that they will prepare the CD. We anticipate that smaller banks may continue to rely on closing attorneys to prepare this important document. Closing attorneys will be responsible for preparing the seller’s side of the CD in all cases.

Who will be responsible for delivering the Closing Disclosure? The rule requires that the borrower must receive the CD three days prior to closing. This actually translates to delivery six days prior to closing to accommodate transit time. The rule allows the closing attorney, at the lender’s discretion, to deliver the CD. The four banks who have announced that they will prepare the CD will also deliver it.

How will closing attorneys and lenders communicate information contained in their respective systems? The big banks will most likely use some form of electronic communication. Some have already announced that they will use Real EC’s Closing Insight™ Most closing attorneys will work with settlement software companies (such as SoftPro) to connect with these systems. Regardless, information will have to be exchanged earlier to accommodate the delivery requirements of the CD. Some experts have predicted that the numbers will have to be exchanged between lawyers and lenders no later than ten days prior to closing.

Who will make changes to the CD? Changes to the CD may occur prior to closing, necessitating adjustments, re-printing, and delivery of the corrected CD at closing. Lenders and lawyers will have to discuss who will make the pre-closing changes. Changes to the settlement numbers on the CD may also occur after closing, requiring preparation and delivery of a revised CD. For example, if recording fees change, the CD will have to be revised. Previously, lawyers had the responsibility for these post-closing changes. Under the new rule, the lenders have primary responsibility, but they may delegate this responsibility to closing attorneys.

How will closing attorneys communicate title and settlement fees for use in the new forms? Lenders will continue to need accurate estimates of title and settlement fees for the preparation of the Loan Estimate and the Closing Disclosure. In addition, for transactions in which an owner’s policy will be issued, the rule prescribes special mathematical calculations for the disclosure of the owner’s and lender’s title insurance premiums, which may require receipt of rates for both a stand-alone and simultaneously issued lender’s policy, as well as the owner’s policy rate.

Good luck educating your referral sources!

Collaboration is King!

ALTA’s CFPB webinar emphasizes that the exchange of data will be the biggest challenge to the closing process after August 1, 2015.

American Land Title Association’s value to closing attorneys grows each day as August 1, 2015 approaches. Closing forms will change dramatically later this year, and ALTA is valiantly attempting to keep those of us who plan to remain in this game ahead of the learning curve.

South Carolina has strong representation in ALTA! Cynthia Blair, a real estate attorney in Columbia, sits on ALTA’s board and participated in this webinar. Each time Cynthia said, “In my state” we knew we were about to receive information specific to us. This local support at this critical time is invaluable, and I strongly encourage South Carolina closing attorneys to join ALTA.

Yesterday, ALTA hosted an excellent webinar entitled “5 Key Areas to Prime Your Operation for the New Closing Process”. The webinar was attended by more than 1,100 of us! The strong message was “Collaboration is King”.

Closing attorneys and lenders will work more closely together than ever to manage and share information. Some lenders have indicated they will deliver the Closing Disclosure to the borrower, but others will require the closing attorney to deliver it. The seller’s form will be prepared by the closing attorney, and a copy of it must be provided to the lender.

The underlying information for the closing documents will be located in two systems: (1) the lenders’ loan origination systems (LOS) will contain the loan-centric information; and (2) the closing attorney’s systems (sometimes referred to as the “title platform”) will contain the property-centric information. Large lenders are likely to utilize entirely electronic systems that will avoid rekeying of information to reduce the possibility of errors. The two systems will talk to each other via platforms that are now being developed.

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