South Carolina Supreme Court Updates - Scott & Corley, PA
South Carolina Supreme Court Orders Foreclosure Hearings, Foreclosure Sales, and Evictions to Resume May 15, 2020.The South Carolina Supreme Court, on April 30, 2020, issued South Carolina Supreme Court Administrative Order 2020-04-30-02 (“Foreclosure/Evictions Resumption Order”) which states that Master-in-Equity courts statewide shall resume foreclosure hearings, foreclosure sales, and eviction actions beginning May 15, 2020. Foreclosure referrals, first legals, etc. have continued to proceed since the March 18, 2020 moratorium, where permitted by the bank/servicer and the CARES Act. Accordingly, beginning May 15, 2020, the remainder of the foreclosure actions (orders of reference, hearings, and judicial sales) shall then proceed. Attached below is the full “Foreclosure/Evictions Resumption Order”.
To ensure full compliance with the requirements of the Foreclosure/Evictions Resumption Order, below is an outline of several important process changes to ensure full compliance with the Supreme Court's mandates:
1. CARES Act Certification - The Foreclosure/Evictions Resumption Order states that the “judge shall require the person or entity pursuing eviction or foreclosure to certify in writing that the real estate at issue is not subject to the limitations and requirements of the CARES Act. If the real estate is subject to the restrictions of the CARES Act, the eviction or foreclosure proceeding shall terminate without any action taken.”
On May 6, 2020, the South Carolina Supreme Court issued a supplement to its previous Foreclosure/Evictions Resumption Order which also included Court-approved certification forms that comply in full with the CARES Act Certification requirement listed in its April 30th Order. Attached below is the May 6th Order entitled “Supreme Court Administrative Order 2020-05-06-01”.
The May 6th Order further states: “For evictions and foreclosures filed before the date of this Order, the Certification of Compliance must be submitted along with the initial filing. For evictions and foreclosures filed before the date of this Order, the Certification of Compliance must be filed with the court prior to proceeding with the eviction or foreclosure. If a party required to file a Certification of Compliance neglects to do so the eviction or foreclosure shall terminate without further action taken.”
Attached below is the Court-approved CARES Act Certification form that must be completed and filed, beginning May 18, 2020, on all foreclosure cases in which the foreclosure firm is instructed to proceed. With the extension of the foreclosure moratorium, excepting vacant or abandoned properties, for all Federally-backed loans until June 30, 2020, the foreclosure firm will request confirmation from the bank/servicer in writing as to whether the subject real estate/mortgage loan is on a CARES Act forbearance plan or may otherwise proceed. Based on the foreclosure firm's receipt of that written confirmation from the bank/servicer, it will complete, execute, and file with the Court the attached CARES Act Certification form.
Although the case may be showing as “active” in the bank/servicer's case management system (i.e., Loansphere, Tempo, etc.), the foreclosure firm will nevertheless be required to request confirmation from the bank/servicer in writing for each “active” case before completing and filing with the Court the CARES Act Certification. As consistent with certification requirements in previous Supreme Court Administrative Orders involving foreclosure actions, the foreclosure firm may reasonably rely on information (i.e., loan servicing records and case management/data base records) provided by the bank/servicer to complete the CARES Act Certification, per Rule 11(c), SCRCP.
2. Court-mandated Dismissal of any Foreclosure Case on a CARES Act Forbearance Plan - The Foreclosure/Evictions Resumption Order further states "if the real estate is subject to the CARES Act, the eviction or foreclosure proceeding shall terminate without any action" The phrase “terminate without any action” is being interpreted as meaning that any pending foreclosure case where the subject mortgage loan has been placed on a CARES Act forbearance plan must be dismissed without prejudice to remove it from the case docket and require a restart if the forbearance plan is unsuccessful .
In light of the plain language in the Foreclosure/Evictions Resumption Order and after the foreclosure firm confirms from the bank/servicer in writing that the COVID-19 or other CARES Act “hold” within its case management system means that the subject mortgage loan is on an active CARES Act forbearance plan, the foreclosure firm must prepare and file with the Court a dismissal of the foreclosure case without prejudice.
3. Notices of Foreclosure Hearing – Per the Foreclosure/Evictions Resumption Order and the Supreme Court's April 22, 2020 Amended Order Regarding Operation of the Trial Courts During the Coronavirus Emergency, foreclosure hearings may proceed either by video conference (i.e., WebEx, GoTo Meetings, etc.), or by telephone conference, or in person, but in person hearings shall be strictly subject to the “social distancing” mandates and all attending parties must wear a mask or other facial covering.
CARES Act Certification Form - Click Here
5/6/20 Order - Click Here
4/30/20 Order - Click Here