SC Underwriting Summary

Search/Exam

• Search and Exam are Practice of Law. Attorney supervised search required.
• Minimum Search Requirements -- No statutory minimum, most attorneys search 40 – 60 years pursuant to SC Bar guidance
• Plant or other search restrictions -- No
• Additional Requirements for REO Searches -- N/A
• Foreclosure Checklist -- N/A
• Special Searches Required (Code, HOA, Utilities)? --
• Survey Requirements --
  • Purchase – yes if new construction
  • Refinance – no
• UPL Hot Button Issues -- Extreme caution required for SC Transactions; WFG approved attorney is Mark Keegan; closing with any other attorney requires written approval from Compliance.
• As of May 1, 2021, the South Carolina Department of Employment and Workforce iniated a statewide online tax lien registry for the filing and indexing of state tax liens. After April 30, 2021, counties will no longer receive state tax liens, satisfgactions or expungements from DEW. A search of the DEW Tax Lien Registry can be conducted at the following url: https://uitax.dew.sc.gov/LienRegistry/registry

UPL

South Carolina is a traditional attorney-state which defines the closing of real estate transactions as the practice of law. The SC Supreme Court has identified five functions which constitute the practice of law:

• Supervision of the title search and title examination;
• Review of closing documents;
• Supervision of the closing (Note: paralegals may not conduct closings);
• Supervision of the recording of documents;
• Supervision of the disbursement of funds.

In Matrix Financial Services Corp. v. Frazer, 394 S.C. 134; 714 S.E.2d 532 (2011) the Supreme Court held that a mortgage loan not closed by a South Carolina licensed attorney could be denied equitable relief in a foreclosure action.

More details on SC UPL

This is a good explanation of how to do this correctly for National Agents

Vesting

• S.C. does not recognize Tenancy by the Entirety.
• Statute recognizes JTROS. Specific creation language recognized per SC 27-7-40 "as joint tenants with rights of survivorship, and not as tenants in common"
• Also recognizes tenants in common

Witness Requirements

• Deeds, mortgages, and powers of attorney require two witnesses and must be notarized.
• Notary may serve as one of witnesses
• The notary may use either an acknowledgment or probate (the probate being a South Carolina method of authenticating a document whereby the witnesses attest to the validity).

Spousal Joinder Requirements/Homestead

• Spouses not in title not required to join in the execution of deeds or mortgages.

• South Carolina does not recognized civil unions.

Probate

• S.C. does not rely on Affidavits of Heirship

Foreclosure Review

REQUIREMENTS TO INSURE PROPERTY COMING FROM FORECLOSURE SALES (SC)

The foreclosure file must be reviewed for compliance with these matters: 1. A proper lis pendens was filed in the correct county; 2. The foreclosure action was filed in the correct county; 3. For mortgage foreclosure, verify that lis pendens filed at least 20 days prior to entry of judgment. See S.C. Code Ann. § 15-11-10 (last sentence); 4. All necessary persons (according to the title search) were made parties to the foreclosure action. Note, SCDOR and SCDEW no longer files liens in county ROD. Title search should include confirmation of no liens by searching SCDOR and SCDEW lien websites on all appropriate parties; 5. All defendants were properly served; 6. All defendants either filed an answer or an order of default was entered as to ALL non-answering parties; 7. All parties received notice of the foreclosure hearing and that a hearing was held where a Judge, Master or Special Referee was actually present; 8. A final, non-appealable order of foreclosure and sale was entered; 9. The complaint, order of foreclosure, and the judicial deed adequately describe the property; 10. The property was properly advertised for sale and a proper bid was made; 11. A Master’s or Special Referee’s deed was filed conveying the foreclosed premises; 12. A report on sales and disbursements was filed; 13. The property is vacant and/or the Protecting Tenants at Foreclosure Act of 2009 is not applicable. Tenants may have rights that could potentially make the post-foreclosure bidder/owner subject to the Residential Landlord-Tenant Act, or at least provide the tenant 90 days from the foreclosure sale date to vacate the property;

Additionally, for REO properties: 14. If deficiency is requested, the 30-day additional sale period has been completed and the sale is final; 15. There has not been litigation commenced or threatened against lender by the borrower/mortgagor or anyone related to the borrower/mortgagor alleging defects in the foreclosure process; and, 16. Consider if loss in equity if HOA v. mortgage foreclosure. See Winrose Homeowners' Ass'n v. Hale, 428 S.C. 563, 837 S.E.2d 47 (2019).

Updated per Clint Yarborough 12-9-21

Who May Serve As Trustee On Deed Of Trust

• S.C. is a mortgage state. Deeds of trust are not permitted.

Time Limitations

• US Judgment Liens -- 20 years, renewable for 20 years
• State Court Judgment Liens -- 10 years (unless appeal pending -- case has "active energy")
• Lis Pendens -- 5 Years
• Federal Tax Liens -- 10 years (+30 days); can be refiled
• State Tax Liens -- 10 years
• Estate Tax Lien -- Federal 10 years
• State Inheritance Tax Liens --
• Mechanics Liens -- 6 months if suit is not filed
• Financing Statements -- 5 years + 6 Months, can be renewed for additional 5 year terms
• Mortgages -- 20 years from maturity
• HOA Liens -- 10 years
• Condominium assessments --
• DSS for Child Support Liens – 6 years
• Mental Health Liens -- 10 years (may be perpetual)

Some Counties have hospital liens, environmental liens and Miscellaneous liens

Updated per Clint Yarborough 7-12-17

Odd Stuff

• The attorney who paid off a mortgage loan may satisfy the mortgage by affidavit if he or she has a written payoff statement from the lender and the cancelled check or proof of wire transfer for the proceeds paid to the lender.

• There is no general usury limits on non-consumer transactions. Interest on consumer credit transactions are limited by S.C. Code Ann. Section 37-2-201.