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
If Your Business Loan is in Trouble, You Can Prevent a Bad Situation from Getting Worse
Posted on Jun 06, 2017 by
Harriet P. Wallace
A business owner with visions of growth doesn’t borrow money thinking he or she won’t be able to pay it back. Sometimes, though, dreams don’t go according to plan.
When loan payments are late or missed or stop altogether, a loan will go into default, meaning the borrower hasn’t met his or her obligations when it comes to the agreement to repay. As difficult as that may be for a business to face, the situation won’t just go away by ignoring it.
Most business loans involve real estate, but they may also be secured with equipment or inventory as collateral. Defaulting on a loan places those assets at risk of foreclosure or liquidation. continue reading
When Entering into a Commercial Lease, Understand Your Obligations
Posted on Jan 23, 2017 by
Ian D. McVey
Entering into a commercial lease is a significant responsibility for both the landlord and tenant. Before a commercial lease is finalized, it is critical that both sides perform due diligence on the lease provisions and protections.
In City Electric Supply v. Johnny Murray – a lease dispute between an electric company and a family-run boat repair shop in North Charleston – the Court of Common Pleas granted the plaintiff’s motion for summary judgment and ordered the tenant to be evicted from the property. The case featured several legal missteps by the defendant that can serve to inform parties who are entering into commercial leases. continue reading
Eminent Domain in South Carolina: Don’t Sell until the Price is Right
Posted on Apr 16, 2015 by
Jeffrey L. Payne
Property owners in South Carolina no longer have to fear that their land will be taken from them for an economic development project. Voters put the brakes on what they saw as the abuse of eminent domain in 2006 with a constitutional amendment that forbids the use of eminent domain for economic development.
Nonetheless, eminent domain is alive and well for other purposes in South Carolina, and here’s what you need to know. continue reading
Unloading Beasts of Burden: SC’s New Expedited Foreclosure Law
Posted on Aug 26, 2014 by
TURNER PADGET LITIGATION TEAM
South Carolina’s real estate market is not yet out of the woods from recession woes. According to a June 2013 RealtyTrac nationwide study, South Carolina ranks ninth in the nation for the number of abandoned properties in foreclosure. South Carolina’s ranking is ahead of its neighboring states, Georgia and North Carolina, despite having half as many housing units as these states. continue reading