Charleston Housing Court

In 2016, North Charleston experienced the highest rate of eviction (16.5 out of 100 renters) of any area in the United States.  The national  average was 6.53 per 100.  In that same timeframe, 10.03 households per day were evicted.  Low income tenants spent upwards of 70% of their monthly income on housing costs.  Eviction is closely linked to homelessness.  Up to 70% of tenants facing eviction have no access to legal knowledge or representation.  The numbers are shocking. 

 These factors prompted the South Carolina Access to Justice Commission to petition the S.C. Supreme Court to form the first ever housing court in South Carolina.  South Carolina Legal Services (SCLS) and other local providers of legal and social services came together to seek the Commission’s support in submitting the petition to the Supreme Court in order to set up a viable experiment.  On May 24, 2019, that proposal took one step closer to becoming a reality when the Chief Justice of the Supreme Court issued an order approving the Commission’s proposal [MF1] and creating what is officially called the Charleston Housing Court Pilot Project (Pilot Project). 

Under the Pilot Project, three Charleston County magistrates have been appointed to serve as judges of the housing court.  Besides SCLS, other partners in the project include One80 Place Legal Services, Charleston Legal Access, Charleston Pro Bono Legal Services, Charleston County Magistrate Courts, the Charleston School of Law, Trident Urban League, 2-1-1 Hotline, the City of Charleston and Nelson Mullins Riley & Scarborough LLP. 

The magistrate courts and the project partners will draw up criteria to determine who is eligible to participate in the Pilot Project.  Under the Commission’s proposal, the process for connecting potential eligible tenants with attorneys is two-fold.  For tenants who contact the magistrate courts to request an eviction hearing, one will be scheduled for a designated housing court day.  The tenant will then call 2-1-1, which can screen the tenant for income eligibility and connect the tenant with a local legal services provider such as SCLS to meet with the tenant and determine whether representation will be provided. 

For tenants who do not call 2-1-1 ahead of their scheduled hearing, One80 Place will coordinate with the Charleston School of Law and other pro bono attorneys to place someone at the relevant magistrate courts on the days designated for housing court.  For tenants that desire representation, they will meet with the legal counsel and, depending on the facts of the tenant’s case, the attorney will try the case or attempt to mediate it or otherwise resolve the matter with the landlord outside of trial. 

The Chief Justice’s order delineates several data points that must be kept in order to track the Pilot Project’s effectiveness.  These include the  

  1.   number of tenants represented and by whom
  2.   number of evictions filed
  3.   number of hearings requested
  4.   number of evictions that were settled or dismissed
  5.  number of tenants provided financial support
  6. number of evictions averted by mediation, hearing, or financial support
  7. number of evictions with writs of ejectment issued; and
  8. a comparison of number of evictions filed and the number of writs of ejectment in the three pilot project Magistrate Courts with the number of evictions of the other Magistrate Courts in Charleston County.

There is no official start date for the Pilot Project, which may take time to set up.  However, the May 29th order was a necessary and powerful signal that evictions in Charleston County will start getting the attention they deserve while tenants get the legal services they need.


 [MF1]Can we turn this phrase into a hyperlink to the order at https://www.sccourts.org/whatsnew/displayWhatsNew.cfm?indexId=2391

Helping Victims of Stalking

I watched the episode below of the television series, Stalked, several years ago and it forever changed my understanding of stalking.

This episode is based on real life events. The print from the mirror being licked, in particular, helped me better understand the fear and the invasion of privacy that stalking victims experience. The constant fear of being watched and repeated acts of unwanted conduct is psychological torment. Whereas an incident of physical abuse is limited in time to the actual act itself, even if it recurs, stalking, and the anxiety it produces, takes place on a 24 hour, never ending continuum. For example, the opposing party in one of my recent divorce cases was physically abusive towards my client, but his repeated phone calls to her after the separation disturbed her even more than the hitting and shoving. He would repeatedly call and text client, as often as ninety times within a 90-minute period. His contact would occur all throughout the day, as early as 9 a.m. and as late as 2 a.m. He would show up in places where he knew she would visit, like the gym. To make matters worse, it can be difficult to get legal relief as a stalking victim because the harassment is harder to prove than physical abuse. There is usually less evidence and stalkers often use technology to conceal their identity.

I recently participated in a webinar, SPARC: Identifying and Responding to Stalking, presented by the Stalking Prevention Awareness and Resource Center. Here are three tips from the webinar that I find helpful when serving our South Carolina Legal Services (SCLS) clients who are victims of stalking:

  1. A web-based service that lets you know who is behind an anonymous blocked Caller ID: www.trapcall.com.  When a call is declined, the phone rings back and unmasks the calling number, providing you with information about who is calling and where they live, even before the call is answered. It stops spam callers and automatically blocks spam, telemarketing and robocalls. Stalkers often call victims from apps that assign them different phone numbers. It also allows the person who was called to record incoming calls, which can be used to provide police and attorneys with proof of harassment. Note that this is a paid service.
  2. Stalkers often use apps to change the number shown on the Caller ID to make it appear that it is a friend or family member of the victim that is calling. This is known as spoofing. One way to prove spoofing is to obtain the phone records from the victim, the supposed calling friend or relative, and the suspect. The victim’s record will show the “friend” called, the friend’s records will show that no call was placed. The suspect’s records will show a call to a spoof service. Financial records or a review of the suspect’s app store on a cell phone can reveal the purchase of apps used to stalk victims.
  3. Victims should usually be advised to have no contact at all with the offender. If a stalker calls the victim 59 times, and the victim answers the 59th call, it reinforces to the stalker that they only have to call 59 times the next time and they will be rewarded by the victim’s answering. However, stopping all contact may not be the best advice in all situations. Victims are in the best position to know how to keep themselves safe. It may be safer for them to have limited contact to minimize the threat. Telling a client to change their phone number may escalate the threat of physical harm if the stalker then acts out due to a loss of control or contact. Telling a victim to move or change their number may put them at more risk if they can still be found at their place of employment or a relative or friend’s home.

Because of the challenges facing the staking victims, it important for those of us who represent and assist them to stay informed on the dynamics of stalking and ever-evolving tactics that stalkers use. If you are a victim of stalking, South Carolina Legal Services may be able to help. To apply, please call our statewide Intake Office at 1-888-346-5592. You can call between 9:00 am and 6:00 pm, Monday through Thursday. We also have an Apply Online option for a limited number of legal issues: http://www.lawhelp.org/sc/online-intake.

Judgment Proof

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

Veronica Blake thought she needed to file bankruptcy when she was sued by Sunshine Finance.  South Carolina Legal Services (SCLS) clients are often fearful that bankruptcy is the only answer, because debt buyers and finance companies often tell them that. However, when you are on a fixed income and have no assets to protect (such as a house or a car), the creditor has no remedy against you other than to get a judgment that they cannot collect.  We call this the bankruptcy bypass or being judgment proof, because South Carolina law prohibits garnishment of wages for consumer debt. Additionally, if a consumer has a house or a car to protect, the property exemptions found in S.C. Code 15-41-30 usually protect them without the necessity of filing bankruptcy.  You can find our brochure about being judgment proof here.

As for Ms. Blake, SCLS accepted her case and filed an Answer denying the alleged debt.  That kind of Answer is called a general denial.  In response to the general denial, Sunshine Finance voluntarily dismissed its case against Ms. Blake.  It turns out that there was no need for the client to file for bankruptcy. SCLS often has clients who are sued for collection by a debt buyer like Sunshine Finance.  A debt buyer is an entity that is in the business of buying a debt for “pennies on the dollar” and then trying to collect the entire amount from the consumer.  They most often have no way of proving the underlying debt, so, if they sue a consumer, they rely on the consumer not responding.  In that case, the debt buyer gets a default judgment and the requirement of proof is very limited or, in some cases, nonexistent. 

When SCLS represents the consumer, the debt buyer or other creditor is forced to present evidence with a live witness. This usually results in a dismissal, as in the case of this client, or in a settlement. As of the date of this article, SCLS had over 100 pending cases to defend consumers from debt collection and unconscionable collection practices. The S.C. Consumer Protection Code and the federal Fair Debt Collection Practices Act are 2 of the tools we use most often to protect clients from these practices.

Student Loans and You

Over 40 million Americans have an average student loan debt of $30,000.00. Because they are unemployed or have income below the poverty line, 28% of borrowers are unable to make payments on their student loans. It is important to be aware of all the effects, advantages and disadvantages of taking out a student loan.

If you are only thinking about attending college, think carefully about whether your degree is likely to land you a job with a high enough salary to be able to repay your student loans. If you are already in college, having a part-time job may allow you to set some money aside to help pay for the loans after you graduate or pay some of the interest on the loans while in school. Consider other options to save money while in school: cook at home instead of eating out, look for more affordable housing, buy or rent used textbooks. Finally, stay in touch with your financial aid office to see if you qualify for any grants and financial aid.

If you are already out of college and have student loans, here is some important information to keep in mind. Your lenders are ready to collect on the loans as soon as you are out of school, and they will. The Federal government can garnish up to 15% of your weekly pay or 30 times the hourly minimum wage – whatever is less. The government can also capture your tax refund or send your loan to a collection agency.

If you need to delay repayment or temporarily stop making payments on your federal student loans, check here to see if you are eligible for a deferment or forbearance. If you have other loans, contact the lender about income-based repayment programs to help you set up a more appropriate payment plan. They are required to set you up for whichever repayment plan you qualify.

If you are struggling with making regular payments on your student loans, here are some resources to help educate you on your options.

  • Equal Justice Works offers a free informational webinar that explains how you can reduce your monthly student loan payments and qualify for Public Service Loan Forgiveness. You can register for the webinar here. They also offer a free e-book entitled “How to Manage Your Student Loan Debt While Pursuing a Public Interest Career” which can be downloaded here.
  • Visit the Federal Student Aid website for information on how to repay your loans, loan consolidation, forgiveness and discharge, and more.
  • Check out our free resources on student loans, financial education, financial aid scams and more.

Remember, with very few exceptions, both federal and private student loans must be repaid. In many cases, you cannot fully discharge them in bankruptcy. It is important that you make timely payments, and if you are unable to do so, that you seek help. South Carolina Legal Services may be able to help. To apply, please call our statewide Intake Office at 1-888-346-5592. You can call between 9:00 am and 6:00 pm, Monday through Thursday. We also have an Apply Online option for a limited number of legal issues: http://www.lawhelp.org/sc/online-intake.

Rock Hill Office

The Rock Hill office welcomed a new staff attorney.  Carla Bryson joined the office in April.  She will be practicing primarily in the areas of consumer, housing, education, and family law.

Nothing about Carla’s journey has been traditional. After leaving the teaching profession, she attended community college where she earned an Associate’s Degree in Paralegal Studies. Carla worked for a law firm in North Carolina for about six months when she realized she wanted more.  Because her children were now older, her husband convinced her it was time to chase her dream. And that’s what she did.

Carla graduated from the University of South Carolina School of Law in December 2018. Carla’s love for reading and learning new things made law school a little more tolerable and a little less grueling.

On May 7, 2019, Carla was admitted to the South Carolina Bar. Carla hopes to be an inspiration to others who may have abandoned their dreams.

Carla enjoys reading and spending time with family. Carla has already started working on her next dream. She dreams of traveling to Bora Bora with her family and reading a good book while there.

Missed the Tax Deadline. Now What? Part 2

This is a continuation of the article that first appeared in our April 2019 issue. For Part 1, look here.

What happens when a taxpayer that is entitle to a refund files a late return or never files?

The Internal Revenue Services’ (IRS) “general rule” is that in order to claim a tax refund, the taxpayer must file the tax return within 3 years of the due date. Example: The due date to file 2017 tax return was April 17, 2018 (or October 15, 2018 if the taxpayer requested an extension). In order to claim the refund, the taxpayer will have to file the 2017 tax return on or before April 17, 2021 (or before October 15, 2021 only if a filing extension was granted).

If the 3-year statute of limitation has passed, the taxpayer will not receive the refund unless there are extenuating circumstances. This rule also applies to any tax credits such as the Earned Income Tax Credit. The taxpayer will not receive any tax refund nor tax credits if the tax return is filed after the 3-year deadline. Does it matter if a taxpayer with a refund due does not file a tax return at all? Yes, it does matter. By law, we are required to file as long as we have taxable income or there is another filing requirement.

What happens if a taxpayer with a balance due files the tax return after April 15?

Penalties and interest – that’s what will happen…and they are awful! The IRS charges two different penalties. There is the Failure to File Penalty, which starts accruing the day after the tax filing due date. This penalty is 5% of the unpaid taxes for each month or part of a month that a tax return is late. Then, the IRS charges a second penalty, which is the Failure to Pay Penalty. The Failure to Pay Penalty is 0.5% of the taxpayer’s unpaid taxes for each month or part of a month after the due date. It also starts accruing the day after the tax filing due date. And finally, there is the interest that accrues on any unpaid tax from the due date of the return until the date of payment in full. The interest rate is determined quarterly and is the federal short-term rate plus 3%. A taxpayer can and must file a late tax return even with a balance due any time after the due date, however, the sooner the better.

What happens if a taxpayer files and has a balance due and he/she cannot afford to pay?

Ten years of notices, financial hardships, headaches, and emotional distress. The IRS has 10 years from the date the tax was assessed to collect on the tax debt. Ten years can seem to be an eternity, especially for the low-income taxpayers that cannot afford to pay back to the IRS after losing their jobs due to disability or loss of household income, among other reasons. This is why the sooner the taxpayer files the late return, the better. The longer the taxpayer waits to file a late return with a balance due, the higher is the tax debt and the longer the IRS will have to collect on it. During those 10 years, the IRS can garnish and levy wages, Social Security benefits, future tax refunds, bank accounts, and they can even seize any property the taxpayer might own. Finally, the IRS will file a federal tax lien against the taxpayer if the tax debt for any given year is more than $10,000. 

What happens if a taxpayer never files the tax return?

Good luck with the IRS! If a taxpayer fails to file, eventually, the IRS will file a substitute return on behalf of the taxpayer and they do not need the taxpayer’s consent to do so. Before filing a substitute return, the IRS will make many attempts to get the taxpayer to file the late return. 

There are some “inconveniences” from having the IRS file a substitute return. One inconvenience is that the substitute return filed by the IRS might not give the taxpayer any tax credits, tax deductions or exemptions that the taxpayer might be entitled to receive. Then, there is the fact that if the substitute return shows a balance due, the taxpayer will be forever and ever in debt with the IRS …unless of course the taxpayer pays the tax debt to the IRS.  There is not a statute of limitation for the IRS to collect on a substitute return balance due. Also, tax debt that arises from a substitute return cannot be discharged through bankruptcy. The IRS will be collecting until the tax debt is paid in full or paid through an offer in compromise. Can the taxpayer file a tax return after the IRS files a substitute return? Yes, the taxpayer can file after the IRS has filed the substitute return especially if the taxpayer intends to apply for any of the IRS tax debt relief programs in the future. However, bankruptcy is still off the table. 

The IRS tax debt relief programs are limited. Applying for any of the IRS programs can be an overwhelming, confusing, rough and an extremely long process for most of our low-income taxpayers. There is no guaranty that the IRS will accept the taxpayer’s request for any of their tax debt relief programs. Therefore, it is in the taxpayers’ best interest to file all required tax returns, even if it is a late return. Sometimes, filing a late tax return can help resolve part of the federal tax controversy or reduce the balance due. The bottom line is that no matter what caused the taxpayer to miss the deadline, taxpayers should file tax returns when required even if it is years past the due date. 

Quick Tips for Parents

Individualized Education Program Annual Review Meetings

For most students with an Individualized Education Program (IEP), the end of the school year means it’s time for their annual review meeting. If you are a parent of a child with an IEP and your annual review is coming up soon, here are some quick tips to help you navigate the meeting.

  1. Understand the purpose of the meeting. The IEP team (including you!) are meeting to consider (1) how well/poorly the student progressed toward their IEP goals, (2) whether an extended school year (ESY) is necessary, (3) whether the student continues to qualify for an IEP, and, if so, (4) what goals and services the student will need for the following school year.
  2. Come to the meeting prepared. Three things here. First, the school must record data on a student’s progress toward their IEP goals. The IEP document itself dictates how this data is recorded and how often it is provided to the parent(s). Make sure you get this data and review it before the meeting. Don’t focus on grades – focus on progress in each individual goal. Second, ask for a “proposed or draft IEP.” You aren’t entitled to one by law, but many schools will provide you with a draft copy ahead of time, so you have time to digest all the information. Third, bring whatever people or documents you believe are relevant to the meeting. For example, if the student sees a therapist or doctor outside of school and they have new/relevant information, bring something in writing from them or have them participate (in person or by telephone).
  3. Don’t breeze through last year’s IEP goals. When a team sets an IEP goal, they believe the student can achieve it within the year. In the annual review meeting, if the school states the student did not achieve an IEP goal, you should ask “Why?” Now, there are many different answers to this question, and, admittedly, it can be difficult to determine exactly why. However, if the answer from the school is, “The goal was just too high,” you should be respectfully suspicious. The student should be making appropriate progress, given their disability. If you believe the student should be doing better, voice that in the meeting. Ask about what more the school can be doing. If the school resists, you may need to seek the opinion of an independent child psychologist, parent advocate, or attorney. Also, if the school tells you, “IEP goals are aspirational; we just have to do our best to try and reach them,” respectfully correct them (see “attainable” below in #5).
  4. Understand the purpose of an extended school year (ESY). A student will qualify for ESY only if additional time is needed by the school to complete the student’s IEP goals, or if there is a serious risk that the student will regress – move backward – over the summer break. Schools are typically very resistant to ESY for an obvious reason: cost. If it takes your student a very long time to catch up at the beginning of each school year, they may need ESY services. If you believe your student qualifies for ESY and the school denies the services, you should speak with a parent advocate or attorney.
  5. Don’t breeze through this year’s IEP goals. The IEP goals are the meat of the IEP. They dictate exactly what the school is going to focus on. IEP goals must be “SMART”: Specific, Measurable, Attainable, Results-oriented, and Time-bound. The goal must be specific in that it needs to address a particular deficiency the student has as a result of their disability. “Johnny’s math grade will improve,” is not specific; “Johnny will improve his ability to add and subtract single-digit numbers…” is.  The goal must be measurable in that the student’s skill and progress must be objectively scored. Think charts and graphs; not feelings and observations. The goal must be attainable, meaning it accurately reflects the kind of progress the student can and should make. The goal must be results-oriented in that it specifies how the student and school will go about accomplishing the goal. Finally, the goal must be time-bound, meaning the goal should be completed within a certain amount of time (typically 1 year).

    Here’s what I tell people all the time: if you can’t understand what the goal is saying, tell the IEP team; odds are, someone else doesn’t understand it either. Ask the team to reword the goal in such a way that a new person can read and understand it without explanation.

Always remember that you are a member of the IEP team. The school has to consider your thoughts, information and opinions. You are an expert on your student in a way that no one else is.

Finally, if you disagree with any part of the IEP, you need to (1) respectfully vocalize your disagreement, (2) ensure your disagreement is in writing (either on a specific form or in the meeting notes), and (3) sign the meeting documents noting “for participation purposes only” next to every signature. Get copies of everything and make arrangements to immediately speak with a parent advocate or attorney.

Notes from the Employment Unit

Greetings from the Employment Law Unit of South Carolina Legal Services! What do we do, you ask? Our Unit serves the civil legal needs of low-income South Carolinians with employment-related issues.

We help workers overcome legal barriers to a job, such as a criminal record that prevents a worker from being able to support his or her family, denial of an occupational license, or a driver’s license suspended due to an excessive fine that prevents a worker from being able to get to work. The purpose of these types of services is to increase individuals’ ability to find high-quality jobs and thereby strengthen our state’s workforce.

Other types of issues we help with include those arising on the job. Workers have a legal right to a safe workplace free of illegal discrimination, as well as a right to be paid all wages when due. We help workers protect these rights.

Finally, we assist with legal issues arising after separation from the job, such as preservation of unemployment benefits so that workers and their families have the support they need while they look for their next job opportunity.

While a large part of the work of the Employment Law Unit is fighting hard for our clients’ rights in the workplace, we also do all we can to educate workers about their rights and the legal tools that can help expand their employment opportunities. We present legal clinics throughout the state on various topics, including how people can overcome a criminal record using the expungement process, and how to get a driver’s license reinstated. Any group interested in having one of our attorneys speak on an employment-related topic is welcome to email a request to jackcohoon@sclegal.org or tiffneylove@sclegal.org.

The Employment Law Unit is here to serve you!

Adopting Family

Timmy came to live with his grandmother Cathy a few months after he was born. SC Department of Social Services (DSS) removed him from his mother due to neglect, abuse, and use of drugs in his presence. In the few months that followed, Cathy was granted custody of the baby. She already had custody of Timmy’s older brother, Kyle, who came to be with her under similar circumstances.

Cathy admits that her daughter, the boys’ mother, was troubled. Jennifer was suffering from mental illness, frequent homelessness bouts, and was a victim of domestic abuse. In other words, she was in no position to care and provide a home for two small children. The fathers of the children were not in their lives. Neither provided any financial support. As far as Cathy knew, neither ever showed any interest in his child. She would later find out, one of them had been incarcerated out of state.

This last factor was what complicated the case. When Cathy first came to South Carolina Legal Services (SCLS) needing help with adoption, the only information she had about the fathers were their names. After doing some research into the matter, SCLS was able to locate the whereabouts of both fathers. One of them, who was still in South Carolina, consented to give up his parental rights and allow for Cathy’s adoption. Jennifer too was willing to consent. The situation with the other father was a bit more complicated. Having an incarcerated party in a case normally presents more challenges than otherwise, and in this case, the father was uncooperative. Still, with perseverance, hard work and having followed the proper legal channels, SCLS was able to get the judge to terminate his parental rights as well. No further obstacles were present, and Cathy was able to adopt both Timmy and Kyle.

Although both kids already considered Cathy as their mother, this made it official. The boys were very excited. After the hearing, they posed for a photo with the presiding Judge. He gave them two teddy bears that had been donated by the local attorneys’ bar association to commemorate the occasion. There wasn’t a dry eye in the court room. Happiest of all was Cathy. This process gave her a piece of mind. Now, nobody would be able to come and take her babies away from her.

Social Work and the Law

Social Work and the Law

Two years ago, the Columbia office of SCLS welcomed the firm’s first Masters of Social Work (MSW) student from the University of South Carolina. His name was Patrick. Of all the great things I learned and observed in Patrick, I was particularly taken by his ability to identify and meet our clients’ immediate needs. For example, Patrick and I both noticed a certain client’s boots were wrapped in duct tape, and that his shirt had a hole in the elbow. Patrick inquired further, and discovered that this was his only pair of shoes, and he only owned one change of clothes. Patrick was able to get our client some more shoes and clothes. He was also able to help the client sign up for the food bank and showed him how to navigate there on the bus.

Because of our success with Patrick, this year the Columbia office welcomed two MSW students: Mackin and Emily. We now have an MSW student in the office 4 days a week. I am always astounded by the things they can accomplish for our clients. They have assisted our clients with everything from food, clothing, diapers and wipes, feminine hygiene products to wheelchairs, utility payments and even money. For example, we had a disabled client who entered into a rent-to-own agreement, and the SCLS attorney was able to secure clear title to the property. However, in order to clear the title, the client had to pay $3,500. To a client on a fixed income, it might as well have been one million dollars. Mackin and Emily worked with the attorney and managed to raise the $3,500 that the client needed through multiple charities and churches. This client now owns her home free and clear and has new connections to her community thanks to the efforts of our MSW students.

Through my experience with these amazing students, I’ve discovered that social workers are like legal aid attorneys in many ways. They are professionals trained to help the poor, the less fortunate, and humanity, generally. They are able to provide compassion and empathy without judging the client. Finally, like legal aid lawyers, social workers do a wide variety of jobs in a multitude of practice areas.

There is, however, one sticky issue related to ethical standards that can be a potential problem for social workers in legal settings. Lawyers have a duty of loyalty and confidentiality to their clients. We are not mandated reporters. In other words, if we discover there is abuse or neglect happening in a client’s home, we do not have an obligation to report that to officials. In fact, depending on the circumstances, we could be subject to discipline for making such a report. However, social workers and social work students are mandated reporters. This means that caution should be used when having a social worker help on a case. They should not be used in cases where this could potentially become an issue, and clients should be advised of this distinction when you involve a social worker in their case. (If a student does see something that they believe they would be mandated to report, they must first discuss it with the attorney supervisor and their supervising professor.)

If you are interested in how to get MSW students integrated into your legal aid office, or you are a funder who would love to see this program expanded at South Carolina Legal Services as much as I would, please reach out to me at jenniferrainville@sclegal.org and have your checkbook ready.