Vol. 6, No. 6, Pg. 29. A Primer for Mortgage Foreclosures in South Carolina.

• Author: By Charles B. Simmons Jr.

South Carolina Lawyer

1995.

Vol. 6, No. 6, Pg. 29.

A Primer for Mortgage Foreclosures in South Carolina

29A Primer for Mortgage Foreclosures in South CarolinaBy Charles B. Simmons Jr.The primary purpose in a mortgage foreclosure suit is to have the mortgaged property sold and the proceeds of sale applied against the debt secured by the property.

30Whether one likes it or not, sooner or later most lawyers will have clients seeking to foreclose a note and mortgage. The primary purpose, of course, in a mortgage foreclosure suit is to have the mortgaged property sold and the proceeds of sale applied against the debt secured by the propert. This article will guide the reader through a fairly typical mortgage foreclosure action.

In counties having Equity Court Judges, also known as Masters in Equity, those courts handle most of the mortgage foreclosure actions. Circuit courts also have jurisdiction to hear forclosures and do so most often in counties without Equity Judges.

In order to foreclose a mortgage efficiently and correctly, a lawyer needs to take the following steps.

1) Review of the Documents. Take a close look at the note, mortgage and any other related documents to ensure that the debtor is, in fact, in default on the note and mortgage. Never fall into the trap of assuming that what the client tells the lawyer is necessarily accurate. Also, the client may not be aware that certain legal requirements in the note and mortgage or the South Carolina Code may be applicable.2) Title Exam. Have a title exam performed to determine what parties may have mortgages, liens or other claims on the property. The lawyer should name these other parties as defendants. The purpose of the foreclosure suit is, of course, to bring before the court all parties necessary to a complete determination or settlement of the issues.

Caveats. 1) A creditor having a superior lien to the mortgage being foreclosed is a proper party, but not a mecessary party. The property may be sold subject to the lien. 2) One who acquires title to the mortgaged property after the proper filing of the lis pendens is not a necessary party. A subsequent purchaser is bound by the foreclosure decree to the same extent as if made a party.

3) Lis Pendens. The plaintiff must file a lis pendens in all mortgage foreclusure suits pursuant to S.C. Code Ann. 15-11-10 et. seq....