Court of Appeals Protects Recurrent Retirement Plan Contributions from Post-Judgment Attachment
Posted on Apr 23, 2018 by
Kristen N. Nichols
A recent, very debtor-friendly decision of the South Carolina Court of Appeals essentially put most routine retirement account contributions beyond the reach of creditors seeking to satisfy past judgments. The court made clear its strong stance toward protecting individuals’ retirement accounts and, for one of the first times, explicitly said that funds deposited into retirement accounts generally can’t be undone as fraudulent transfers.
The debtor in the case, First Citizens Bank v. Blue Ox, signed a confession of judgment after his LLC had defaulted on loan payments owed to its bank. After failing to pay the judgment, the debtor contributed money to his retirement accounts as well as a 529 college savings account. The bank contended that it could attach these post-judgment contributions because they were fraudulent transfers and therefore not subject to protections otherwise provided to retirement accounts under Sections 5-41-30(A)(13) and (14) of the South Carolina Homestead Exemption Act. Rejecting the bank’s claims (and reversing the lower court), the Court of Appeals ruled that Statute of Elizabeth, which generally prohibits fraudulent conveyances, did not apply because the movement of money did not transfer ownership from the debtor but rather converted the funds into protected assets that still belonged to him.
The Court of Appeals further noted that while there were several “badges of fraud” present, on balance there was no fraudulent intent because the “contributions were limited in amount, were not secretive in nature, and most tellingly, were in line with [the debtor’s] long-standing pattern of investing in his retirement – conduct that is encouraged by the very existence of [protections typically afforded to IRAs and 401(k) accounts under the Homestead Exemption Act].” continue reading
Mediation: A Mandatory (and Often Better) Way to Resolve Certain Workers’ Comp. Claims
Posted on Apr 16, 2018 by
Cynthia C. Dooley
South Carolina now mandates the use of mediation as a way to help resolve certain workers’ compensation claims. These are defined in 67-1802 of the state Workers’ Compensation Commission Regulations, but generally, they are cases that would be litigation-intensive and highly contested – e.g., occupational disease, contested death and mental injury claims.
The goal of promoting timely and cost-effective resolutions largely is being achieved. Practically speaking, there are several aspects of mediation that make it a good alternative to a hearing before a commissioner of the Workers’ Compensation Commission.
The Traditional Hearing Route
Historically, most workers’ compensation cases have been decided by one of the state’s seven commissioners. While the commissioners are experienced and more than able to render fair decisions, time factors often limit the ability of attorneys and claimants to fully explain their respective positions. In 2017, the Commission had 10,458 cases docketed for a hearing. A normal case is scheduled to last from one to two hours. Once docketed, on average the case may take at least three months to actually be heard. After the hearing, commissioners often must review reams of evidence before a ruling is made. Although the ruling is binding on the parties, there is always the potential for appeal, thus extending the process and increasing costs. The hearing also submits all issues to the interpretation of one person. By contrast, mediations often last for an entire day giving the parties time to fully explore and present their respective positions. continue reading
Mediation is key to efficient, cost-effective e-discovery
Posted on Feb 06, 2018 by
Richard S. Dukes
Nearly everything we do leaves a trail of data, and the abundance of electronic evidence has transformed the way legal disputes are handled from beginning through resolution.
Think of all the different ways we communicate with others – either directly, with text messages or emails, or passively, where social media posts may be viewed by friends or connections. Before electronic evidence became the norm, printed documents relevant to a case were placed in a file, boxed and stored along with countless others to be turned over to opposing counsel, who had to sort through it all by hand. Now, the realm of discoverable digital data has grown exponentially, making the ability to search efficiently even more important. The Radicati Group, a technology market research firm, estimated that 269 billion emails were sent per day in 2017. That’s a lot of data.
Each piece of data helps tell a story, and that data can be used as evidence in a lawsuit. Preservation, retrieval, review, and production of electronic data can dramatically affect the expense of litigation, and controlling those costs through careful management of the discovery process is the key benefit of employing a mediator to assist with discovery. continue reading
Court Comes Down Hard On Bank That Didn’t Satisfy Open-Ended Mortgage in 90 Days
Posted on Dec 02, 2015 by
Kristen N. Nichols
The South Carolina Supreme Court recently sent a clear message to banks: all mortgages – including those with a home equity line of credit (HELOC) – must be satisfied within 90 days of receiving a payoff. Banks that don't have a procedure for timely execution of payoffs where there is a line of credit should implement one immediately or risk certain liability. continue reading
Arbitration: Should I Stay (in Court) or Should I Go (to Arbitration)?
Posted on Oct 24, 2014 by
Audra M. Byrd
In South Carolina, 33 out of 46 counties are “mandatory mediation” counties, and circuit court litigants in these counties are required to participate in mediation of their lawsuits prior to trial (with certain limited exceptions). continue reading