South Carolina Bankruptcy Court Awards Fees and Sanctions Against Mortgage Creditor for Delay and Lack of Good Faith in Mortgage Modification Process
Debtor included a Motion for Loss Mitigation/Mortgage Modification within their Chapter 13 Plan and properly served notice upon the creditor. The creditor did not object. Debtors timely filed their loss mitigation/mortgage modification (“LM/MM”) application to the creditor through the Default Mitigation Management Portal (“Portal”). Emphasizing that the mortgage creditor has a duty to engage in Loss Mitigation/Mortgage Modification process in good faith that stems from both the Order on Debtor’s Motion and Amended Operating Order 15-01, the Court held that sanctions were appropriate. The Court pointed out that creditor failed to timely respond to Debtors regarding whether there were missing or additional documents, which caused
SC Supreme Court reverses a holding that financial assets were part of the probate estate where decedent had directed transfer of the assets prior to death.
In this case, a terminally ill husband, prior to death, directed the bank both verbally and by signed writing to transfer securities to an account for his wife. Four days later husband passed away. The bank transferred some of the assets prior to notice of death; however, had not completed all transfers. The Personal Representative moved the Probate Court to determine that the assets not yet transferred were not owed to wife but were, instead, part of the probate estate.The reasoning of the Probate Court, also adopted by the Circuit Court on appeal, relied on securities law and common law
In this 2015 case both the Debtor and the Internal Revenue Service asked the court for Summary Judgment. The Court denied, finding that there were genuine questions of fact regarding whether the IRS would be able to prove that Debtor had personal liability for the income tax of his closed businesses. The court detailed the alter-ego theory as one of three primary variants in the veil piercing jurisprudence.The South Carolina Supreme Court has clarified that, although South Carolina courts often treat “alter ego” and “piercing the corporate veil” interchangeably,3 those terms are distinct. Drury Dev. Corp. v. Foundation Ins. Co., 380
Whether a conformed copy of a will should be admitted to probate.The South Carolina Court of Appeals upheld the circuit court’s determination that the probate court erred in admitting the copy of the will to probate. The will was not allowed.When an original will cannot be located a presumption arises that the original will was destroyed by the testator. Presumption of Revocation “When the testator takes possession of his will and it cannot be found at his death, the law presumes that the testator destroyed the will animo revocandi.” Golini v. Bolton, 326 S.C. 333, 340, 482 S.E.2d 784, 787 (Ct.
Appellate court affirms summary judgment that niece lacked standing as “real representative” to bring a survival action.
Decedent’s niece sued alleging that her aunt’s co-workers unduly influenced aunt to change her will to make the co-workers the sole beneficiaries by promising aunt that they would care for her and her home so that she could avoid going to an assisted living facility. Niece alleged that the co-workers breached this promise neglecting aunt and her home in her last year of life. Niece was not elected by the will as personal representative and sued, alternatively, as the “real representative”. The court explained that the real representative, historically, permitted an heir of property to pursue a legal action
Bankruptcy court holds that mortgagee could be sanctioned for improperly investigating before filing its motion if Debtor’s attorney had used the correct procedure to move for sanctions.
In this 2015 case, Debtor’s mortgagee, Greentree, moved to court to lift the automatic stay based on its claim that Debtor did not have the home properly insured. However, Debtor did have home insurance starting on the date of the petition and continuously thereafter. Debtor’s counsel argued that mortgagee’s counsel should have called Debtor’s counsel to inquire regarding the home owners insurance before filing its motion and the court agreed. At the hearing, Greetree pivoted, arguing that the insurance was inadequate because it did not cover the entire secured claim. The court stated that this was easily fixed by Debtor
Debtor denied discharge because the number of errors in the bankruptcy filing displayed “reckless disregard for the truth”
This older South Carolina Bankruptcy Court case is a good example of the risk of failing to disclose the required information to the Court and the Court’s trustee. The Trustee brought this case before the Court because of a transfer of real estate from daughter to father that happened more than a year before the bankruptcy petition was filed. The Trustee argued that the Debtor retained a concealed, secret ownership interest because she continued to reside on the property. The Court held that her merely residing on the property was insufficient to prove an ownership interest where there was no
South Carolina Court of Appeals Construes Claims for Breach of Contract and Breach of Warranty as In-Fact a Claim for Equitable Indemnity
The Court explained that where claimant’s “injuries arose exclusively from having to defend itself in [the] lawsuit” and not as a direct result of defendant’s conduct, there is no independent claim for breach. The Court sited Addy v. Bolton, 257 S.C. at 33, 183 S.E.2d at 709 explaining that where the wrongful act of the defendant has involved the plaintiff in litigation with others … as makes it necessary to incur expense to protect his interest, such costs and expenses, including attorneys’ fees, should be treated as the legal consequences of the original wrongful act and may be recovered as damages.” In this case,
While the Court found that Debtor had met the substantial and unanticipated change standard of In re Murphy, 474 F.3d 143, 149 (4th Cir. 2007) (citing In re Arnold, 869 F.2d 240, 243 (4th Cir. 1989)) where Debtor was diagnosed with cancer and co-Debtor lost her job. However, the Court denied Debtors’ requested reduction, stating that the best evidence before the Court was Debtors’ filed Schedules I and J, which showed a surplus greater that the requested reduction. The Court declined to revisit Debtors’ argument that Social Security payments should not be included in the payment amount, explaining that Debtors had
SC Plaintiffs not required to apply statute of limitations to restore an action stricken due to bankruptcy.
The South Carolina Court of Appeals reversed and remanded holding that it was not necessary for Plaintiff’s to comply with the statute of limitations when they complied upon the initial filing of the summons and complaint and the case was stricken, using Form 4, “due to bankruptcy”. The Court explained that neither the local rules nor the bankruptcy code, 11 U.S.C. § 362, require the dismissal of a state action upon issuamce of the automatic stay. The circuit court erred in relying on 11 U.S.C. § 108c, which states,[I]f applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement
Plaintiffs sued for damages under SC Code Ann 29-3-320 which provides for “ a sum of money not exceeding one-half of the amount of the debt secured by the mortgage, or twenty-five thousand dollars, whichever is less, plus actual damages, costs, and attorney’s fees in the discretion of the court” after their home’s prior owner ran up a line of credit secured by Plaintiff’s home which Plaintiffs paid to satisfy upon purchasing the home. Plaintiffs closing attorney followed proper procedure to satisfy the mortgage, however, mortgagee left the line of equity open in the name of the prior owner. After the prior