SC dirt lawyers sued for email funds diversion by a third-party criminal

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This is the first suit of this type I’ve seen. I’m confident it won’t be the last!

A dirt lawyer friend sent a copy to me of a hot-off-presses lawsuit filed in a circuit court in South Carolina against a closing law firm because the purchaser’s $50,000 in closing funds were diverted by a third-party criminal posing in an email exchange as the transaction’s real estate agent. My friend said he sent the case for my information. I think he sent it so I wouldn’t sleep!

Here are the facts as recited in the complaint. The names are being changed to protect all parties.

Paul and Penny Purchaser signed an Attorney Preference Form on March 28, 2017, selecting Ready and Able, LLC as their legal counsel for the purchase of a residential home and the closing of a purchase money mortgage with Remedy Mortgage, LLC.

On April 10, Paul and Penny Purchaser received Ready and Able, LLC’s “Purchaser’s Information Sheet” which required Paul and Penny to pay all closing funds over $500 to Ready and Able, LLC by wire transfer. The complaint states that these were silent as to the security of wire transfers, the security of private information to be conveyed between the purchasers and the law firm, and the security or lack of security of the use of email for closing information.

Also on April 10, Penny Purchaser telephoned the law firm and spoke with paralegal, Candy Competent, providing her with the purchasers’ Social Security numbers. The complaint states that Ms. Competent accepted the information and provided no wiring information or warnings.

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The complaint states that on April 14, Paul Purchaser received what purported and reasonably appeared to be an email from Regina Realtor, their real estate agent for the transaction, asking Mr. and Mrs. Purchaser to wire closing funds in the amount of $48,490.31 that day so that the closing scheduled for April 21 would not be delayed. Penny Purchaser replied to the email requesting wiring instructions. An attachment purporting to be wiring instructions for Ready and Able, LLC. was sent via reply email.  The complaint states that the wiring instructions reasonably appeared to be the correct wiring instructions for the law firm and appeared to be printed on law firm letterhead. This email exchange was actually with a third-party criminal.

Later on April 14, Penny Purchaser telephoned Candy Competent and requested the amount needed to close. Ms. Competent discussed the amount needed to close despite the fact, according to the complaint, that she knew or should have known that the law firm had not sent wiring instructions to the purchasers or the real estate agent.

On April 17, Ms. Competent sent an email to Mrs. Purchaser advising her to add $550 to the funds due to close to cover a survey bill that came in on April 14. No mention was made of wiring instructions in that email. The email also did not discuss the fact that the law firm had not yet provided an amount to close to the purchasers or to the real estate agent. Mrs. Purchaser wired $49,015.31 using the wiring instructions provided by the third-party criminal.

On April 21, Paul and Penny Purchaser learned for the first time that the wiring instructions were the work of a criminal third party, who received the funds and has failed to return the funds.

The complaint states two causes of action, negligence and legal malpractice, and lists the following breaches of duty committed by the law firm:

  • Requiring the plaintiffs to use wire closing funds to defendant, without counseling the plaintiffs about the methods by which the secure delivery of such funds could be compromised;
  • Failing to counsel the plaintiffs about the risks and insecurity of email communications, particularly of private, sensitive, or financial closing information; and
  • Failing to be alerted by the circumstances of Mrs. Purchaser’s telephone call on April 14, and therefore to warn her that no communication had been sent by the law firm.

Is this, in fact, negligence or legal malpractice?  We will have to wait to see.  Would the processes established by your law firm for the protection of your clients’ funds prevent this type of crime? That is the question of the day. Please discuss among yourselves!

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History repeats itself

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Fraudulent mortgage satisfaction schemes are back

We have heard recently that a group is engaging in a scheme to fraudulent satisfy mortgages (or deeds of trust) in California and Florida. We all know that trends in California and Florida eventually make it to South Carolina, so I wanted to make sure South Carolina dirt lawyers are aware of this scheme. This is not a new scheme, but we thought it had died down until we got this news last month.

Here are some good rules of thumb to assist you in avoiding losses and protect clients in this area:

  • Have your title examiners provide you with copies of mortgage satisfactions and releases. Two sets of eyes reviewing the documents should help with spotting issues.
  • Pay particular attention to satisfactions and releases within a year of your closings. The normal schemes involve satisfying mortgages in order to collect funds at subsequent closings.
  • Pay particular attention to satisfactions and releases that are not connected with a sale or refinance. Contact the lender for confirmation that the loan has been paid in full.
  • Don’t accept a satisfaction or release directly from a seller, buyer or third party without contacting the lender for confirmation that the loan has been paid in full.
  • Many of the fraudulent documents are being executed by an unauthorized party on behalf of MERS. Compare MERS satisfactions with others you have seen in connection with your closings.
  • Check spellings and compare signatures against those of genuine instruments.
  • Be wary of hand-written documents, unorthodox documents, cross-outs, insertions and multiple fonts.

The perpetrators of this fraud are sophisticated and will change aspects of the scheme as needed, so remain vigilant and discuss any suspected fraudulent documents with your title insurance underwriter.

A Certain Path to Disbarment:

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Fake a title insurance agency and ignore a real estate practice!

In the Matter of Samaha* is a South Carolina Supreme Court attorney disciplinary case that resulted in disbarment.

This lawyer was creative; you have to give him that!

For starters, he witnessed and notarized the signature of his client’s late wife, who had died seven years earlier. He typed, witnessed and notarized a revocation of a durable power of attorney for an 83 year old retired paralegal with cognitive and physical limitations.

Perhaps the most interesting violations, however, had to do with the title insurance. (What? It’s tough to make title insurance interesting. Trust me. I try and fail on a daily basis. This stuff is only interesting to title nerds like me!)

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A relationship with a title insurance company is essential to a real estate practice in South Carolina. The closing attorney must either be in a position to issue his own title insurance commitments and policies as an agent, or to certify to a title insurance company as an approved attorney to obtain those documents.

Consider the activities of  Mr. Breckenridge, the lawyer who was publicly reprimanded this spring for allowing non-attorney entities to control his real estate practice.** During oral arguments, he stated that he preferred to handle closings in the customary manner in South Carolina, where the attorney acts as agent for a title insurance company as well as closing attorney. But he had been suspended by the Supreme Court for a short time and, as a result, had been canceled as an agent by his title insurance company. He said he was then forced to work for an entity that hires lawyers to attend closings only.  When a problem arose with the disbursement of one of those closings, he found himself in front of the Supreme Court again.

Mr. Samaha had also been canceled by his title insurance companies. That did not stop him and his staff from proceeding full steam ahead with closings in the customary manner.  Although he originally denied any knowledge that documents had been forged in his office, he ultimately admitted that closing protection letters had been forged and issued to lenders.

A mortgage lender later uncovered not only forged closing protection letters, but also forged title insurance commitments and policies. It was not possible for Mr. Samaha to obtain any of these documents legitimately during this timeframe, because his status had been canceled as an approved attorney as well as an agent. The Court commented that, absent the forgeries of these documents, the lawyer’s real estate practice could not have functioned.

(This is not the first disbarred lawyer in South Carolina to have included the forgery of title insurance documents in his repertoire of misdeeds.***)

The Court stated that Mr. Samaha allowed his staff to, in effect, run his office. He failed to supervise them and failed to supervise and review closing documents.  He, in effect, completely ignored his real estate practice.


He also committed professional violations of a more mundane but equally scary nature. For example, he made false and misleading statements on the application for his professional liability insurance.

red card - suitHe failed to pay off four mortgages. By his own calculations, the loss was more than $200,000, but the Office of Disciplinary Counsel stated that his financial records and computers had been destroyed, making it impossible to prove the true extent of the financial mismanagement and misappropriation.  Apparently, the money from new closings was used to fund prior closings, up until the date of Mr. Samaha’s suspension from the practice of law.

 

*In the Matter of Samaha, South Carolina Supreme Court Opinion 27660 (August 24, 2016)

** In the Matter of Breckenridge, South Carolina Supreme Court Opinion 27625 (April 20, 2016)

*** In the Matter of Davis, 411 S.C. 209, 768 S.E.2d 206 (2015)

E-mail Hacking Scams Hitting Buyers in SC

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Please get the word out to your clients!

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As closing attorneys, title insurance agents and business men and women, we receive daily warnings about a myriad of e-mail hacking scams. Many of these schemes involve wiring instructions and attempts to divert escrow funds to remote accounts. Piecing together the two words “wiring” and “instructions” in the subject line of an e-mail seems to entice the worst kinds of fraudsters.

Our own office was hit a year or so ago. We were escrowing funds for an agent’s large commercial transaction, and the agent received a bogus e-mail purportedly but not actually from us telling him to send the money in a different direction. Thankfully, our very astute agent had attended sufficient seminars and read enough fraud alerts to take the simple step of calling us.  Fraud averted!

American Land Title Association and others have written that fraudsters are now attacking buyers, not just businesses who hold escrow funds. And it is happening here!

Within the last few weeks we have heard of three email securityattempts of this nature in Charleston, at least one of which was successful. A buyer wired $150,000 to the wrong account on a Friday afternoon based on a bogus e-mail, spoofed to appear as if it came from the closing attorney. The e-mail said the firm was busy, and advised the recipient not to call but to respond by e-mail if there were questions. That should have been the first clue. The buyer and the banker both said they thought the e-mail and wiring instructions looked funny. But they sent the money out anyway.

Buyers have not attended the seminars nor read the fraud bulletins that have inundated all of us in the last few years. Closing attorneys and real estate agents may be the best line of defense in this situation.

Please communicate with your clients and let them know that a simple telephone call can prevent the diversion of their savings to criminals!

At the Intersection of Football and Mortgage Fraud

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Five time NFL Pro-Bowler jailed

football fieldIt’s a sad day in South Carolina! Post-flood, many South Carolinians are reeling from the damage to their homes and businesses. Many are dealing with insurance companies and FEMA, and more continue to boil water and dodge blocked roads and bridges. And in the midst of our State’s recovery, legendary Coach Steve Spurrier is hanging up his visor after eleven years coaching our beloved Gamecocks. As I was thinking about the idea of loss today, I decided to write about a place where football and real estate (in this case real estate fraud!) intersect.

We need only look back as far as October 2, when retired NFL wide receiver Irving Fryar was sentenced to five years in prison by a state court in New Jersey on charges of conspiracy and theft by deception. Fryar’s mother, Allene McGhee, was given three-years’ probation on the same charges.

Irving Fryar was the first wide receiver to be the NFL’s number one draft pick in 1984 when the New England Patriots made him their top selection. In his remarkable 17-year career, he played for the Patriots, the Dolphins, the Eagles and the Redskins. He played in Super Bowl XX with the Patriots and scored the Patriots’ only touchdown in that game in their loss to the Bears. He made it to the Pro Bowl five times and retired in 2001.

He was, at times, a troubled player. In 1986, he missed a game after being injured in a domestic dispute with his pregnant wife. In 1988, he was arrested on weapons charges. There were also headlines involving drug use, depression and even attempted suicide. But he purportedly turned his life around. While still playing, he received a Ph.D. from the North Carolina College of Theology and became a minister. After retirement from the NFL, he founded New Jerusalem House of God in his home town, Mount Holly, New Jersey, and became its preacher. He was also a regular speaker at the NFL rookie symposium and a high school football coach. His message in all these capacities was “don’t do what I did”, and “it’s never too late for salvation”.

So where did this redemption story run off the rails? Prosecutors argued in a three-week jury trial that Fryar and his mother, along with a financial advisor who testified against them, used false employment and income information to close six home equity loans on Ms. McGhee’s home in Willingsboro, New Jersey in 2009 in a six-day period.  Loan applications stated that Ms. McGhee earned $6,000 per month as an events coordinator at her son’s church. Each lender agreed to make a loan on the belief that it would be in first lien position. Four of the loans were closed in a single day! Only a few payments were made, and the lenders had to either foreclose or write off their loans.

This mortgage fraud scheme will sound familiar to Columbia lawyers. Matthew Cox a/k/a Gary Sullivan moved to Columbia in the summer of 2004, buying two homes in northeast Columbia communities. He convinced the sellers in both transactions to enter into seller financing transactions. He forged mortgage satisfactions on the sellers’ mortgages and subsequently obtained multiple institutional mortgages on both properties within several days in February of 2005, amounting to more than $1 million. He then disappeared. This scam was widely reported in the real estate community in Columbia and in newspapers in three states. Matthew Cox was a former Tampa mortgage broker who was eventually convicted of mortgage fraud in Florida, South Carolina and Georgia and served time in federal prison.

I will never forget the phone call from a Columbia lawyer who said courthouse abstractors discovered this scheme on the day of the closings by conferring about the name of the borrower whose title they were all updating!

SpurrierNo dirt lawyer looks back with nostalgia at those days of loose lending practices that were a major factor in the global financial crisis. But Irving Fryar’s story is a reminder that the clean-up from those days is not over!

Now back to football. Steve Spurrier is an outstanding coach who has done a remarkable job in our state. I wish him good luck and God speed in retirement. Now, let’s find our next great coach!