Articles from July 2019

Fighting over custody or getting divorced can be one of the hardest times in a person’s life.  There are all sorts of unknowns and stressors that can cause any person involved in a family court case to worry and be unable to sleep.   Many people involved in a custody or divorce case find themselves angry and needing to vent or talk to someone about what they are going through.  They need to be able to say how horrible their spouse is or what needs to happen in their case.   With the rise in popularity of social media, many people with an ongoing case in family law will post their thoughts or feelings online. 

As an attorney, I have seen many cases turn on the fact that one party posted something on Facebook,  Snapchat, or another social media site.  Posting something negative about your child’s other parent is never a good idea, even if it is true.  Family Court judges want to see that parents can work together, respect each other, and co-parent.  Encouraging your child to have a healthy relationship with his or her other parent will look favorable on you in court.  Telling the world how awful your ex is, will only make you look bad. 

Some people use social media to brag about their lifestyle, wealth, how hard they partied last week, their favorite illegal drug, or who they are in a relationship with.  I have used these types of posts to show the court that the other party is making more money than what they declared. This can lead to a higher child support or alimony obligation if I can prove that the other party is not being truthful about their income. I have also used posted photos showing a party waving a gun around or smoking pot which can result in the court suspending visitation with that parent. 

Many temporary and final orders will have language that may prevent one parent from talking bad about the other parent in front of the child or discussing the case with the child.  Parents should read their court orders and follow it word for word.   Posting online that you told your child something or posting something knowing that your child could read it, could result in the court holding you in contempt. 

Many people are shocked to learn that a parent could be forced to turn over everything that they have ever posted or texted during the discovery phase of the case.  Many of my clients view what they post as private.  However, in custody and divorce proceedings there is little to no privacy.  Be prepared for everything that you ever posted on Facebook or any other site to be viewed by your ex and his or her attorney, and maybe even by a judge. 

Although social media can be fun and an easy way to vent and get things off your chest, I strongly caution my clients to be very careful about what they are posting online.  Posting online that you are “going to Aruba for vacation” but then claiming you cannot afford child support can land you in hot water with the court.  You can choose to stay out of trouble by not posting. 

The mind has a unique ability of savoring delightful memories.  Summer in the South makes me think about fresh cut grass, the sound and smell of a light rain that you can see marching across fields of your neighbor’s yard. We would play outside most of the day. Those are some of my memories associated with summer.  What will this generation of students remember about this summer?

This past school year, there was a new energy and increasing camaraderie about public education in South Carolina.  Everyone expressed a desire to improve education outcomes and find a way to support teaching as a profession.  What can South Carolina Legal Services do to improve educational outcomes?  We are a statewide law firm and we meet thousands of vulnerable or fragile families each year.  We are not educators.  We are not legislators. 

We are human, and many of the clients we serve are a part of various kinds of families or communities. 

• We can take a moment and think about what an eviction will mean for a school aged child and explain the McKinney Vento Homeless Act. 
• We can take a breath and ask what switching a “week on and week off” custody arrangement will do to a child. 
• If a parent can no longer pay child support because she lost her job, we can ask her how else she can be involved in their lives. Maybe she can call more often, or text if that is how they communicate. 
• When we are preparing documents for temporary hearings, we can ask which parent reads to or with the child at night. Encourage your client to be the parent who reads with her child.
• We can ask clients to think about their child’s future. 
• When working with parents on an affidavit for a temporary hearing, ask them to dedicate a paragraph to their child, and start off with that paragraph. Encourage them to reflect more on why they should have custody.
• We can ask families that are struggling with budgeting what they would like to teach their child about managing finances.
• We can ask people that are struggling with keeping steady employment if they have thought about creating a small business or a separate source of income based on a hobby they enjoy or a skill they possess.   
• We can ask our clients if they have noticed whether their child is aware of the stress they are experiencing, and whether have they thought about how stress can impact their child.

We cannot educate. We cannot legislate.  We cannot preach.  We can ask. After all, we are masters at carefully adding information into the record with leading questions. Never underestimate a lawyer that cares.

Check out your rights under the Dealers Act

The South Carolina Regulation of Manufacturers, Distributors, and Dealers Act (“Dealers Act”)

S.C. Code Ann. §§ 56-15-10 to -600 (2006 & Supp. 2014).

The Dealers Act[1] is available to South Carolina consumers who have been harmed by unfair methods of competition and unfair or deceptive acts or practices as defined in the Act. [2]  It applies to any person who engages directly or indirectly in purposeful contacts within the state of South Carolina in connection with the offering or advertising for sale of a motor vehicle or who has business dealings with respect to a motor vehicle within this State.

Specific violations stated within the Dealers Act include

1. requiring a purchaser of a new motor vehicle to also purchase special features, appliances, equipment, parts or accessories not desired or requested—unless they were already on the car when it came to the dealership;
2. to represent and sell as a new motor vehicle one which is used, including one that has been used and operated for demonstration purposes; and
3. resorting to or using any false or misleading advertisement in connection with the dealer’s business

Sometimes advertising is not false or misleading, it’s just “puffing”.  According to Black’s Law Dictionary “puffing” is the expression of an exaggerated opinion — as opposed to a factual misrepresentation — with the intent to sell a good or service. Puffing involves expressing opinions, not asserting something as a fact. Although there is some leeway in puffing goods, a seller may not misrepresent them or say they have attributes that they do not possess.

What are some of the acts and practices that have been found to be arbitrary, in bad faith, or unconscionable?  First, S.C. Courts have defined those terms as follows:

1. Arbitrary conduct is readily definable and includes acts which are unreasonable, capricious or nonrational; not done according to reason or judgment; depending on will alone.[3]
2. Bad faith is “[t]he opposite of good faith, generally implying or involving actual or constructive fraud, or a design to deceive or mislead another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.” [4]

“Unconscionability has been recognized as the absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them.”[5]

Here are some methods employed by dealers that violate the Dealers Act:

1. Collecting insurance premiums but then failing to apply them and failing to tell the purchaser they have no insurance;
2. Inaccuracies in a financing application made by a dealer such as:
   1. falsely listing the purchaser’s identity;
   1. listing the wrong motor vehicle as the collateral;
   1. misrepresenting the purchaser’s monthly income to qualify them for a loan;
3. Failure to act in good faith when a purchaser requests that the dealer correct inaccuracies in paperwork and/or assist in correcting problems caused by dealer’s bad faith actions;
4. Promising that your payment will be lower in the future;
5. Selling extended service contracts but calling them warranties;
6. Making false statements about the condition of the motor vehicle;
7. Charging closing fees that are not actual expenses incurred by the dealer.

The Dealers Act provides remedies for acts which cause damage to any of the parties or to the public.  These include a private action for money damages and injunctive relief.  In an action for money damages, the amount recovered is doubled and you can seek attorney fees and costs.  If the dealer acted maliciously, punitive damages not exceeding triple the damages can be awarded.

Under the Act, dealers are required to maintain complete and correct records of each sale transaction for at least four years and the Statute of limitations for pursuing a private action is four years. [6] 

The S.C. Attorney General has the power to investigate, issue cease and desist orders and injunctive relief on any valid abuse connected with the sale, rental or leasing of a new or used motor vehicle.  But the Act requires that reasonable attempts by the consumer have first been made with the dealer to alleviate the complaint.[7]

[1] S.C. Code Ann. §56-15-30(a)

[2] S.C. Code Ann. § 56-15-40(1) (2006).

[3] Taylor v. Nix, 307 S.C. 551, 555, 416 S.E.2d 619, 621 (1992).

[4] State v. Griffin, 100 S.C. 331, 331, 84 S.E. 876, 877 (1915) (citation omitted).

[5] Fanning v. Fritz’s Pontiac-Cadillac-Buick, Inc., 322 S.C. 399, 403, 472 S.E.2d 242, 245 (1996).

[6] S.C. Code Ann. §56-15-120.

[7] S.C. Code Ann. §56-15-40(5)

NOTE: All the names in this article have been changed to protect their identities.

Domenika Johnson came home from work one evening to find a For Sale sign in her front yard. Surely, this was a mistake. Maybe the realtor meant to put it on the property next to hers. It was vacant, and Domenika had not seen anyone coming or going there in years – for as long as she lived there, actually. In the mailbox, she had a letter from a real estate company. The first line made her heart sink. The property you are occupying belongs to someone else, it read. This could not be. Her property? Her home? She bought it with her own savings 15 years ago. She only had 5 years left on the mortgage. In that moment, Domenika felt panic come over her. What was going on? What could she do? Where could she turn? As she spent the next few days trying to sort out what was happening, her home was auctioned off and sold.

She came to South Carolina Legal Services (SCLS) with little hope. It was too late, she thought. The closing was taking place a couple days later. Her home was gone. But she was determined to keep fighting, she just needed help. The first step for us was to ensure that the auction sale would not be finalized. We filed for a temporary restraining order, asking that the court delay the closing until a hearing could be held to determine what happened and to whom the property really belonged. Our motion was granted. Our attorneys and paralegals started working on piecing together the rest.

The “rest” soon became clearer. Domenika’s lot came from a couple who were developing their land back in the 70s. At that time, a home was to be built on Lot 13. The lot next to it, Lot 12, was to be vacant. Due to circumstances that we may never know, the home was actually built on Lot 12. This was never reflected in any records. All the records showed Lot 13 as having a house on it and Lot 12 as vacant and unimproved. In reality, Lot 13 was vacant and unimproved, and Lot 12 had a house on it. For over 20 years, despite numerous ownership changes, property valuations and surveying, the mistake was never noted or corrected. For over 15 years, Domenica had been living in and paying mortgage and taxes on a house, which according to the official records did not exist. Home Money LLC bought Lot 12 at a tax sale for less than $1,000. It was advertised as “unimproved”. Since there was a house on that lot, they were now trying to flip it for $40,000.

Domenika was in danger of losing everything, only because of a recording error four decades prior, and a predatory business that was trying to make a quick buck. Home Money LLC was trying to use every legal loophole to speed up the sale and finalize the deal. SCLS, too was trying to exhaust every legal remedy to keep Domenika in her home. Court action, legal motions, community partner involvement, settlement offers – we tried everything.

Although we were prepared for a long trial and felt confident that law and fairness were on our side, we wanted to resolve it as quickly as possible to allow Domenika a peace of mind. In the nick of time, we were able to find a buyer for the unimproved, vacant lot. With that money, we were able to settle the case with Home Money LLC. Domenika got to keep her home. The records were changed to reflect the reality. She now legally owns Lot 12 with a house on it.

Her angels, as she calls us, have helped keep Domenika in her home. We are also grateful for a grant from Bank of America, which allowed us to accept this case. Domenika was slightly above our regular income guidelines, but she was far from being able to afford an attorney. We could not have accepted her case if not for this specific grant from Bank of America which allows us to take accept some clients in certain circumstances who are over income.