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South Carolina Supreme Court Sides with Innovation in Real Estate Lending Law

A strongly worded decision from the South Carolina Supreme Court has surprised many real estate lawyers and lenders by firmly validating a new competitor that has become a gamechanger in the marketplace.

The case Boone v. Quicken Loans centered on whether internet-based residential refinance closings by Quicken Loans and Title Source constituted the unauthorized practice of law.

South Carolina requires a lawyer to close residential real estate transactions, but laws vary in other states where lawyers may have limited involvement and professional title abstractors or a title insurance company are permitted to handle closings.

The five steps that South Carolina lawyers must supervise in a residential closing were established in the 1987 state Supreme Court case, State v. Buyer Services Company. Those steps where a lawyer must be involved meaningfully are document preparation, title search, closing, recording and disbursement.

But in its ruling, the state Supreme Court cited an earlier opinion that said its duty is to protect the public, not lawyers:

"[T]he policy of prohibiting laymen from practicing law is not for the purpose of creating a monopoly in the legal profession, nor for its protection, but to assure the public adequate protection in the pursuit of justice, by preventing the intrusion of incompetent and unlearned persons in the practice of law."

In the Quicken case, the high court found that lawyers were involved in the internet-based transactions and used their professional judgment in each step. The declaratory judgment reversed the special referee’s decision earlier that said no lawyer was involved in a way that protected the interests of the borrower.

The court noted the existence of significant federal regulations, such as the Dodd-Frank Wall Street Reform and Consumer Protection Act, Truth in Lending Act and Real Estate Settlement Procedures Act, which provide consumer protection. It said requiring more attorney involvement would not benefit the public or justify the increase in costs, which in turn could result in a reduction of consumer choice and access to affordable services.

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SCRIPTS System Must be Reviewed to Prescribe Schedule II Mediation

On May 19, 2017, Governor Henry McMaster signed into law the mandate that all licensed professionals with prescriptive authority, including physicians, physician assistants, dentists, optometrists, advanced practice nurses and podiatrists, implement and review a patient's history in the South Carolina Reporting and Identification Prescription Tracking System  ("SCRIPTS") before prescribing Schedule II pain medication.

The SCRIPTS system review requirement allows a designated staff member to review the SCRIPTS system on behalf of the licensed practitioner. If a designated staff member reviews patient information in the SCRIPTS system on behalf of the licensed professional, the licensed professional must discuss the patient's prescription history in the SCRIPTS system with the delegate before prescribing a Schedule II controlled substance. The communication must be reflected in writing in the patient’s chart.  When prescribing a Schedule II medication, licensed professionals should document the medication and the quality of pills prescribed in the patient's chart to ensure compliance with the relevant LLR practice act.

Failure to use the SCRIPTS system as required can result in consequences, including referral to the appropriate South Carolina Department of Labor, Licensing, and Regulation Board for  investigation and potential disciplinary action.  Our professional licensing attorneys routinely defend LLR investigations including South Carolina Board of Nursing complaints, Medical Board complaints, and Dental Board complaints.  

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What Clients Should Know When Preparing for a Deposition

A deposition is a question-and-answer session with the parties to the lawsuit and the other side’s attorney. Typically, a lawyer will ask the same or similar questions of a witness during the deposition as he or she will ask during the trial of the case. The purpose is to determine what type of witness the person would be if the matter were to proceed to trial. In doing this, lawyers are looking at the credibility of a witness if his or her story differs between the deposition and trial.

Deposition preparation and evaluation of the deponent is critically important in cases. In order to adequately obtain information that is being solicited from the witness, an attorney always must prepare for the deponent. In a deposition, lawyers meet with parties in a case, as well as experts and other witnesses, to ask questions before trial and take statements under oath. This formal questioning is part of the discovery phase, which lawyers use to gather facts to prepare their cases. While depositions are a routine part of litigation, understanding their purpose and how to prepare for them is crucial.

Additionally, lawyers use depositions to determine the strength of their case. Depositions are one of the few times that an attorney gets to evaluate witnesses and use that assessment to determine whether settlement of the case is an option, or if the matter should continue through other motions and trial proceedings. 

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Solar Tax Credits & Other Incentives Heat Up Energy-Efficient Demand in South Carolina Construction

With an abundance of sunshine in South Carolina (August’s total solar eclipse notwithstanding), developers and builders are jumping on ways to take advantage of the sun’s rays to provide energy-efficient construction.

Solar panels provide cheap energy, but a major obstacle to mainstream use is the upfront installation cost. The most common residential solar installation – a 5-kilowatt system – costs about $20,000 to install in South Carolina, but generates only about $500 to $1,000 in annual energy savings.

Federal and state tax credits are the most significant tool to offset initial costs, along with rebates and other incentives from private utilities in South Carolina. A lucrative rebate for Duke Energy customers was exhausted at the end of January after falling victim to its own popularity. The utility offered a $5,000 annual rebate for the average household by paying $1 per watt of energy generated from solar panels. Another program for South Carolina Electric & Gas customers offered performance payments of up to 4 cents for every kilowatt hour of electricity generated from solar panels. It expired at the end of 2016. 

Still, South Carolina users enjoy some of the best tax credits in the country and may be able to take advantage of new legislation pending in the House.  

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Eminent Domain in South Carolina: What Happens When the Government Wants Your Land?

South Carolina property owners and businesses have taken notice of recent actions across the state where the government is using eminent domain authority to clear the way for roads, infrastructure and other public uses.

Although a state constitutional amendment in 2006 prohibited the use of eminent domain for economic development, eminent domain is on the table for other uses and has been viewed as a bargaining tool for municipalities to accelerate the sale of coveted land.

Negotiations to acquire property for a library and museum in Myrtle Beach are continuing after the city council in February allowed the city manager to use eminent domain, if necessary, to force the sale of two downtown parcels.

In April, the Charleston City Council authorized the use of eminent domain to acquire the site of a former supermarket for a new intersection and park. One month later, the city reached an agreement with the developer to purchase the 2-1/2-acre site for $3 million.

And plans for Interstate 73, which aims to connect Myrtle Beach to North Carolina and up to Michigan, could involve more right-of-way acquisitions across South Carolina.

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Businesses Collecting Purchased Debt Get Relief In Supreme Court Ruling

A June 12, 2017, U.S. Supreme Court ruling means businesses have less to worry about from regulations designed to protect consumers from abusive and deceptive practices when attempting to collect their own debts.

The Fair Debt Collection Practices Act (FDCPA) authorizes private lawsuits and weighty fines to deter the wayward practices of debt collectors. In the high court’s view, “debt collector” refers to a third-party servicer collecting debts on behalf of a creditor. A bank or other provider that originates a loan and tries to collect the debt itself is not a debt collector and therefore is not bound by the FDCPA.

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If Your Business Loan is in Trouble, You Can Prevent a Bad Situation from Getting Worse

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.

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South Carolina Auto Liability Case May Set New Bar For Awarding Damages

Questions before the South Carolina Supreme Court could change whether negligence in causing a car accident now may be considered in awarding damages for injuries allegedly caused by a vehicle’s design flaw.

The answers to questions of state law certified in the federal products liability case Donze v. General Motors hinge on the South Carolina Supreme Court’s decision on whether comparative negligence, which apportions damages based on fault, applies in crashworthiness cases.

For years, South Carolina plaintiffs have been able to successfully argue that the circumstances of what caused an accident are irrelevant when considering liability based on crashworthiness, which is the degree to which a vehicle will protect its occupants from the effects of an accident – often referred to as the second collision.

Under the crashworthiness theory in South Carolina, a manufacturer can be held responsible for a design flaw of the vehicle that enhances or aggravates the injuries above and beyond those from the initial collision.

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