Attorney Andrew R. Hart secured consumer judgment on behalf of a South Carolina consumer in the Pickens County Court of Common Pleas for selling a used truck using unfair and deceptive methods.

A used car dealership in Easley, South Carolina was found liable for damages in the amount of $34,646.00. The judgment determined that the dealership violated the South Carolina Unfair Trade Practices Act (SC Code 39-5-10), which bars businesses from using unfair or deceptive practices in conducting business in South Carolina. Along with damages suffered by the consumer, attorney’s fees and costs were awarded as part of the consumer judgment.

The case involved the sale of a used truck to a consumer. The consumer, after experiencing a coolant leak in the vehicle almost immediately after purchase of the used truck, took the vehicle to two different mechanics. Each mechanic informed him that the vehicle had a blown head gasket, and one of the mechanics testified that a representative from the dealership has brought the same vehicle in two days prior and had been informed of the blown gasket. Testimony and evidence presented established that the consumer was not told of the truck’s blown head gasket before purchase, and the judge awarded $34,646.00 in damages to compensate the consumer.

About Hart Consumer Law, LLC

Hart Consumer Law, LLC is a law firm based in Spartanburg, South Carolina serving consumer clients in South Carolina (including Greenville, Spartanburg, Cherokee, Pickens, Anderson, Greenwood, Laurens, Oconee and Union County). Hart Consumer Law, LLC exclusively represents consumers in State and Federal court, and represents consumers in cases of used car sales, lemon law, unfair trade practices, breach of warranty, undisclosed damage, and other consumer and civil matters. Contact Hart Consumer Law, LLC to setup an initial consultation if you have an issue with a used vehicle you purchased.

On behalf of a South Carolina consumer, Andrew R. Hart, Esq. successfully won a lemon law claim filed against FCA US LLC. As part of the award, the consumer will receive all money back that was paid for the defective vehicle.

The case arose out of a consumer’s lease of a new 2018 Jeep Grand Cherokee from Big O Dodge in Greenville, South Carolina. Within days, the Jeep Grand Cherokee would not start, and the consumer had to tow the vehicle to a dealership for inspection. As more than a month passed without the vehicle being repaired and without any solutions presented, the consumer was forced to maintain payments on the lease in order to maintain their credit.

Even after filing of the case, FCA US LLC denied responsibility, claiming that the parts needed to fix the Jeep were on “national backorder” and that because the parts were expected to arrive nearly 3 months after the consumer first brought the vehicle in for repair, a lemon law claim was “not justified and premature at best.”

Applying the clear standards set forth in South Carolina for Lemon Law, the arbitrators unanimously agreed with the consumer and awarded a repurchase of the Jeep Grand Cherokee, which includes a refund of the lease down payment, all monthly payments, trade-in allowance and sales tax or other fees paid at purchase. The decision shows a clear rejection of the manufacturer’s argument that a consumer should have to abide by a manufacturer’s timeline for the repair of a vehicle, and represents a victory for South Carolina consumers raising lemon law claims against FCA US LLC.

For more information about South Carolina Lemon Law, contact us to set up a time for a consultation.

About Hart Consumer Law, LLC

Hart Consumer Law, LLC is a law firm based in Spartanburg, South Carolina serving consumer clients in South Carolina (including Greenville, Spartanburg, Cherokee, Pickens, Anderson, Greenwood, Laurens, Oconee and Union County). Alford & Hart, LLC exclusively represents consumers in State and Federal court, and represents consumers in cases of lemon law, used vehicle sales, unfair trade practices, breach of warranty, undisclosed damage, and other consumer matters.

Because of defects with the service of the original Complaint in 2009, a Discover Bank judgment in excess of $9,000.00 rendered against a consumer was declared null and void by the Spartanburg County Court of Common Pleas in South Carolina.

The consumer, represented by Andrew R. Hart, filed a motion challenging the 2009 judgment in May 2018. The consumer didn’t learn of the existence of the judgment until, while exploring the possibility of refinancing her mortgage in early 2018, she was informed by her bank that a lien from the judgment was present on her property. Upon investigating the judgment, the consumer found that Discover Bank claimed to serve her at an address where she did not live. In her motion and supporting affidavits, the consumer asserted that she was never served with a summons and compliant, and that due to the lack of service, the resulting judgment was void. The judge agreed with the consumer and granted the motion for relief from judgment, voiding the $9,332.89 judgment along with nearly 9 years of accumulated interest and finding that service claimed by Discover Bank was ineffective.

Without effective service, jurisdiction is never obtained over another party, and any judgment rendered is subsequently void. Rule 60 of the South Carolina Rules of Civil Procedure permits a court to relieve a party from a final judgment. This is especially important in the context of consumers, because if a consumer discovers a judgment that they were unaware of or believes was improperly obtained, a mechanism exists to challenge the judgment.

A common method of service in South Carolina is personal service. Rule 4 of the South Carolina Rules of Civil Procedure states the applicable standard for service of process. Under Rule 4(d)(1), personal service may be made upon an individual by delivering a copy of the summons and complaint to him/her personally, or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Rule 4 serves at least two purposes – it confers personal jurisdiction on the court and assures the defendant of reasonable notice of the action. Other methods of service on individuals – including certified mail and publication – are allowable in South Carolina courts as well.

If you’re a consumer who discovers a judgment or pending case against them and you do not believe you were properly served, it’s imperative to take action immediately, and may be worth consulting with a consumer attorney to determine the best course of action.

 

It is occurs all too often that I meet with a panicked prospecive client who just had their vehicle repossessed, and they cannot figure out why. Without a vehicle, they are unable to do the things many of us take for granted everyday – go to work, take their kids to school, or go to the store or pharmacy. It reinforces just how much our livelihood depends on a vehicle. Without it, you might be not be able to make a living. Now a company is demanding that they not only pay the past-due amount or the entire amount of the vehicle loan, but also towing and storage fees.

South Carolina residents should be aware of the laws that apply to your finance company, bank or lien holder repossessing your car. Consumer protections do exist in South Carolina, and knowing the rules will help you protect yourself from companies who might try to take advantage of you for their own financial gain.

To start, the only person who can legally “repossess” your vehicle is a lien holder. This is the company or person to whom you are making paying for your vehicle. If you own your car free and clear, and have title in your name only, your car cannot be “repossessed” – it would simply be theft at point, and you would need to call the police.

The South Carolina Consumer Protection Code sets forth rules dictating when, and how, a vehicle can be repossessed by a lien holder from a consumer. The South Carolina Consumer Protection Code, at 37-5-110 states that if a consumer is behind in payments on a vehicle loan, and is ten or more days late on a payment, the creditor may deliver written notice – referred to as a Right to Cure Notice – to the consumer of the payment due. The notice must conspicuously – that is, it must stand out so as to be visible – state the name, address and telephone number of the creditor to whom payment is to be made, a brief identification of the transaction (like identifying your vehicle), the consumer’s right to cure the default, and the amount of payment and date by which payment must be made to cure the default. From the date the lender delivers that notice, a consumer has not less than 20 days to cure the default and catch up the past-due payments.

The concept is simple enough – a lender must notify a consumer that they are behind, giving the consumer a 20-day period to catch up the loan and correct the missed payments. In practice, however, there are a number of pitfalls that continuously cause issues for consumers:

• Only ONE notice is required to be sent by a lender during the entire life of the loan. Even if you received a right to cure notice years ago, a lender does not have to sent you a second notice. If you miss a payment after you received a right to cure letter previously, your lender may be able to repossess your vehicle without further notice.

• Delivery of a right to cure notice is typically by mail. It’s a reality that people move all the time, and often on short notice. Mail will be sent by a creditor to the address that you, the consumer, have registered with them. Imagine a scenario where you have moved since you signed your auto loan, and your lender repossesses your vehicle without your prior knowledge. While you had spoken on the phone with your lender and told them you moved, the lender states they sent the notice to your prior address because it was the last one on file. How can you prove your lender didn’t follow the law? You want proof – in writing, as many instances as possible – showing your lender knew your address. Send mail to your lender telling them your new address and keep a copy. Send an email and keep a copy. Keep bills or other notices the creditor has sent to your new address. You have to be a protector of your own interests, because your lender will not do it for you.

• A lender is not required to sent a right to cure letter by certified mail. The law does not require you to be personally served with the right to cure notice – it only requires that it is mailed to your address, or personally given to you. Make sure to open all mail received from your lender, and keep everything.

• Be careful of anything the lender verbally states to you about payment arrangements when you are behind. Unless you document the conversations, there won’t be proof they ever happened, and a lender can produce the written notices to rely on for proof.

• A right to cure notice applies only to a consumer missing payments or falling behind on the contract. If another part of the contract has been breached – for example, if a consumer fails to maintain insurance on the vehicle – then a right to cure notice is not required and your lender may be entitled to repossess your vehicle.

If your vehicle or other property has been repossessed without a right to cure letter, you may be entitled to damages. Consult with our office to make sure you rights as a consumer are being enforced.

One of the most common misconceptions I hear as a bankruptcy attorney is some variation on this statement:

“How can someone afford to file for bankruptcy if they can’t pay their bills?”

The way of thinking that produces a statement like that – the assumption that because someone can’t afford a house payment, car payment or credit card payment, they must not make any money or are unwilling to pay anything – is extremely misguided. It represents a fundamental misunderstanding of the circumstances that typically lead someone to file bankruptcy, and does not accurately reflect the financial status of most people that I see filing bankruptcy. Like most assumptions, it reveals more about the individual drawing the assumption than the person they’re attempting to judge.

The prospective clients I speak to who are thinking about filing bankruptcy are hard-working individuals who have been affected by financial hardships that they cannot control, such as loss of income from a job, increased medical costs from sudden health troubles, or sky-high interest rates on loans or credit cards. While they continue to receive a steady income through work, social security, or other benefits, the hardship they experienced has made it impossible to catch up payments on things they were unable to pay during that difficult period. Credit card companies, finance companies, mortgage companies and other financial institutions, no matter what they tell you, are unforgiving and profit from consumers defaulting on their obligations. So while a prospective client may have an income that now allows they to restart making payments, banks and credit companies demand not only that but interest, late fees, costs, and any number of other fees that act to make it extremely difficult for an individual to get back on their feet.

Which leads us back to the original question – how much does it cost to file bankruptcy in South Carolina?

I typically break costs down to prospective clients in three separate categories: bankruptcy credit course and financial management course costs, bankruptcy filing fee, and attorney’s fees.

Credit Counseling & Financial Management Course

The bankruptcy rules require you to complete two educational courses – one (Credit Counseling) prior to filing your case, and one (Financial Management/Debtor Education) before you case is finished. As private companies supply the course, a fee is charged to complete the course and obtain the certificate that must be filed with the bankruptcy court.

You must take the course through a provider that has been approved by the U.S. Trustee’s Office.

• Click here for a list of all providers approved for the credit counseling course.

• Click here for a list of all providers approved for the Financial Management/Debtor Education course.

Costs vary depending on the provider, and it’s up to you to determine who you want to take the course through.

Filing Fee

Your bankruptcy filing fee depends on if you file a Chapter 7 or Chapter 13. The fee is paid directly to the bankruptcy court, and is required to file a case in South Carolina.

The standard Chapter 7 bankruptcy filing fee in South Carolina is $335.00. It is paid at the time of filing. You may qualify for waiver of the fee if you cannot afford it. Rules allow for an application to pay the filing fee in installments as well, where you can make up to four payments within 120 day of filing totaling $335.00.

The standard Chapter 13 bankruptcy filing fee in South Carolina is $310.00. The fee is paid at the time of filing, and you cannot apply to have the fee waived based on income. Rules allow for an application to pay the filing fee in installments as well, where you can make up to four payments within 120 day of filing totaling $310.00.

Attorney Fee

The final cost to consider in filing bankruptcy is attorney’s fees. It’s also the most difficult cost to plan for, as – speaking only for my firm and the way I work with client’s on fees – each case is different.

Our goal is to help clients seek relief from financial hardships that affect their lives. As an attorney, my main directive is to assist clients in whatever matter I might be handling to improve their well-being and find solutions to their issue. We prioritize that main goal over setting any minimum attorney’s fee – ultimately, a client’s individual circumstances and the complexity of their case determines what a fee would be, rather than a need or goal to profit from a case. Any bankruptcy filer or organization advertising a “no money down” bankruptcy or unbelievably low fee does not have your best interests at heart.

One of the most common questions we hear in South Carolina is “what is chapter 7 bankruptcy?” The bankruptcy process itself is extremely complex, but explaining what a Chapter 7 does, at it’s core, is much more simple.

Simply put – Chapter 7 is a liquidation bankruptcy, with the end goal being to discharge all eligible debts and creditors and emerge with a “fresh start” financially. This allows you to move forward without collections, payments or contact from your discharged creditors, and rebuild and start your financial life from that point forward. Understandably, you probably have questions after reading that:

Who can File a Chapter 7?

Both individuals and businesses can file for Chapter 7 relief.

If your debt is primarily business debt, you are not subject to the means test.

Eligibility for Chapter 7 requires a determination of whether your income is too high. You can make too much money to file a Chapter 7. The “means test” determines whether a debtor qualifies for Chapter 7. The first part of the test requires the debtor to compare their current monthly income — the average gross income in the six months preceding the application for bankruptcy — with South Carolina’s median income.

Eligible monthly income includes all of the following:

• wages, salary, tips, bonuses, overtime, and commissions

• gross income from a business, profession, or a farm

• interest, dividends, and royalties

• rents and real property income

• regular child support or spousal support

• unemployment compensation

• pension and retirement income

• workers’ compensation

• annuity payments

• state disability insurance

Will I Lose My Property in a Chapter 7?

People often think that by filing Chapter 7, they will lose their house, car, money and personal property. While the fear behind the worry is understandable, South Carolina provides you with exemptions for your property that may stop you from losing anything in a Chapter 7 (typically called a “no-asset” Chapter 7).

What are the exemptions in South Carolina? South Carolina Code 15-41-30 provides the following:

• $50,000.00 per debtor for real property used as a residence (referred to as the “homestead exemption”);

• $5,000.00 for one vehicle;

• $4,000.00 for household goods and furnishing, including furniture, electronics, clothing, appliances, collectibles or other similar items;

• $1,000.00 for jewelry;

• If a debtor is not using a homestead exemption, a debtor may exempt up to $5,000.00 in cash or liquid assets, such as stocks, bonds, deposit accounts, certificates of deposit, or unpaid earnings, refunds or deposits;

• $1,500.00 for professional tools, implements or books used for work or a debtor’s profession (referred to as “tools of the trade”);

• A “Wildcard Exemption,” allowing up to $5,000.00 of any unused exemptions to be applied to any property of the debtor.

• 100% of individual retirement plans, such as a 401k or an IRA, with some exceptions

The effect of these exemptions is that if your property is worth less than the exemption provided, then it is exempt and a Chapter 7 Trustee cannot seize or sell the property, and you will get to keep the property.

What Debts Can be Discharged in a Chapter 7 Bankruptcy?

Many types of debt can be discharged in a Chapter 7 Bankruptcy. They include, but aren’t limited to, the following examples. There are always exceptions to rules, so please contact us to discuss if your particular type of debt can be discharged:

• credit card debt;

• collection agencies and debtor collectors;

• medical bills;

• personal loans;

• past-due utility bills, including cell phone, television, electric, and other providers;

• civil court judgments;

• auto repossession deficiency balances;

• car accident claims, not involving drunken driving;

• business debt;

• past-due rent and money owed for leases or other contracts;

• certain types of unpaid taxes and penalties assessed more than three years ago;

• attorney fees (except child support and alimony awards)

Not all types of debt are can be discharged, however. For example, if your property has a lien on it and you wish you keep the property, you may not be able to discharge the lien that has attached to your property. Additionally, the Federal Bankruptcy Code list 19 categories of debt that cannot be discharged. The debt that you have that could potentially be discharged would have to be discussed with your attorney.

Can I Continue Making Payments on my House and Car in a Chapter 7 and Keep Them?

You may keep certain secured debts such as your car or your furniture or house by reaffirming those debts. To do so, you must sign a voluntary “Reaffirmation Agreement.” If you decide that you want to keep your house or your car or your furniture, and you reaffirm the debt, you cannot bankrupt (or wipe-out) that debt again for eight years. You will still owe that debt and you must continue to pay it just as you were obligated to continue to pay it before you filed bankruptcy. In order to reaffirm the debt, you must also bring it current. In other words, if you are three or four months behind, then you must pay the back payments which are due in order to reaffirm it. You can selectively reaffirm your debts – you can state that you wish to keep the house and the furniture, but that you want the car and the jewelry to go back to the respective Creditors.

You generally have to show that you can afford to make payments on secured debt you are reaffirming, meaning that your income, less your regular expenses for food, clothing, utilities and other regular expenses, must leave you with enough money to make the payment you want to reaffirm. Again, exceptions apply to rule, so be sure to discuss any specific situation with your attorney.

Can I Keep My Wages, Social Security or Other Income in a Chapter 7?

Chapter 7 Bankruptcy will not have an effect, by itself, on your wages or your Social Security benefits. You will not lose your social security or disability benefits, for example, by filing for a Chapter 7 bankruptcy. Nor will you be required to pay your wages to the court because you file a Chapter 7 bankruptcy.

If you are facing foreclosure in South Carolina and want to save your home, Chapter 13 bankruptcy may provide a valuable tool to stop foreclosure and allow you to keep your house.

Through a Chapter 13 bankruptcy, you can stop foreclosure, pay off back-owed payments on your mortgage over a three to five-year period, and potentially treat second mortgages, equity lines and judgment liens with lower payments. While advice from a bankruptcy attorney is recommended for a full understanding of any potential case, I’m providing a general overview of the process for affected homeowners to seek relief.

The Automatic Stay

When a consumer files bankruptcy, “automatic stay” immediately becomes effective. The automatic stay prohibits creditors from making any collection efforts against the individual filing bankruptcy – this includes a mortgage company foreclosing on a debtor, meaning a bank can be stopped from filing or proceeding with a foreclosure or imminent sale of a house. While not advisable from a planning perspective, a bankruptcy could theoretically be filed the minute before a foreclosure sale and stop the sale of a property.

The automatic stay is effective until a motion from stay is granted, or unless it expires early due to a previous filing by a debtor. Again, when and how the automatic stay might be affected is a case-by-case determination, but generally, if you file a Chapter 13 plan proposing to make payments to your creditors and that plan in confirmed, the stay will remain in effect as long as you are making all required payments.

For illustration purposes only, imagine a South Carolina couple who was faced with a temporary drop in income due to a job loss, and they are $10,000.00 behind on their mortgage. While the mortgage company is likely demanding that amount be paid all in one lump sum to stop a foreclosure, a bankruptcy allows the couple to pay this amount over a three to five year-period as part of their bankruptcy plan payment, along with their regular monthly mortgage payment. By spreading out the payments over a longer period of time, the chances of success and retention of the house are potentially greatly increased, and may be a better option than attempting to pay a large sum at once that many individuals simply do not have access to.

Can I Afford to Keep My Home in a Chapter 13?

“Feasibility” is the word in determining whether a consumer can afford the payment necessary to maintain a Chapter 13 plan. Feasibility means simply whether you have enough income to support the payment you are proposing to make.

Income is the easier of the two figures to calculate. The bankruptcy schedules will ask for your monthly income from all sources, including wages, benefits, social security, contributing household members, and will also have you disclose your monthly expenses, including mortgage payment, food, gas, utilities and other regular expenditures.

Calculating the required payment in a chapter 13 plan is more complex, but ultimately it consists of the payment off all required obligations, including back-owed payments (or “arrearage”) for your mortgage. In order for a plan to be “feasible” and able to be confirmed by the bankruptcy court, your available income has to exceed the monthly payment you are proposing to make through your bankruptcy plan.

Judgent Liens and Second/Third Mortgages and Equity Lines in Chapter 13

If you have a second mortgage, equity line or judgment lien on your residence, you may be able to pay less than the full amount of those secured loans and judgments through a Chapter 13 bankruptcy.

This can happen happen when the mortgage or judgment is not secured by your equity in the property. For these obligations to not be “secured by equity” on the property means that the value of all prior liens on the property with priority are valued higher than the value of the property.

To best illustrate it, think of having a house worth $100,000.00 which has a mortgage and an equity line. If the mortgage balance is $125,000.00, then the owner does not have any equity in the property, and the equity lien is no longer secured by equity. The equity lien could be paid as unsecured, and could possibly be paid less than the full value through a chapter 13 plan.

If you are facing foreclosure, you should seek advice immediately about the options you have.

In a Chapter 7 bankruptcy, you can wipe out any past-due or charged-off medical bills.

With the rising cost of health care and medical treatment, more and more individuals are struggles.

ling to pay medical bills. In a chapter 7 bankruptcy, medical bills are treated as non-priority unsecured debt. This means that any medical bills you have will not receive any priority treatment by the Chapter 7 trustee if they are able to make any payments to your creditors. If no payments are made to your medical debt, or only a portion of the debt is paid by the Chapter 7 trustee, the remaining amount will be wiped out by the bankruptcy discharge. This means that medical creditors can no longer attempt to collect any of the discharged debt from you.

Hart Consumer Law, LLC exclusively represents consumers and advocated for their interests. If you are interested in learning more about a potential Chapter 7 bankruptcy filing, contact us for a consultation and learn what options are best for you.

 

With the pandemic, job losses and an economic recession, more and more people are finding it difficult to keep up with monthly payments on their vehicles. Having a vehicle to drive to work or transport children to school is a necessity. Even if your vehicle has been repossessed in South Carolina, a Chapter 13 bankruptcy may still be able to get your vehicle back and allow you to keep paying for it.

If your car has been repossessed due to missed payments, but has not yet been sold by your lender, you can get your car back by filing a Chapter 13 bankruptcy if you are able to show you can afford to make payments on the vehicle. How much payments are will be depends on the balance of the loan and how much longer you have to pay on it and other facts, but in the simplest terms you can keep the vehicle if you can afford to pay for it along with your other obligations. You are also not required to pay the entire past-due balance all at once. In your Chapter 13 plan, you are able to pay the past-due amount in monthly payments over the course of your plan, which generally lasts three to five years.

Hart Consumer Law, LLC exclusively represents consumers and advocated for their interests. If you are interested in learning more about a potential Chapter 13 bankruptcy filing to save your vehicle from repossession, contact us for a consultation and learn what options are best for you.

While you may fear a court office or creditors knocking on your door asking for your personal property in a Chapter 7 bankruptcy, the reality is most individuals are allowed to keep their day-to-day property.

The property you are allowed to keep in a South Carolina Chapter 7 bankruptcy is based on the value of the property and the exemptions South Carolina provides you. An “exemption” is an amount, set out in the laws of South Carolina, that are you allowed to apply to your property value is various property categories. If you property is worth less than the exemption amount, then you will not lose that property.

The current exemption values provided by South Carolina for the type of property many people typically have are:

-Homestead (the home you own and in which you live) – $63,237.50

-Household goods, furnishings, electronics, clothing, appliances – $5,050.00

-One vehicle – $6,325.00

-Jewelry – $1,225.00

-Cash and liquid assets (usable only if you are not claiming a homestead exemption) – $6,325.00

-Retirement Accounts (IRA, 401ks) – no limit

-Tools of the trade (professional books, tools or equipment used for work) – $1,900.00

-“Wildcard” exemption – you can apply any unused certain exemptions, up to $6,325.00.

Keep in mind that in a joint case where spouses are filing, both spouses are able to use these exemptions so the amounts available double.

Bottom line – If you file a Chapter 7 bankruptcy in South Carolina and your property is less than the exemptions you are provided, it means you will not lose any property in a Chapter 7 bankruptcy.

As a disclaimer, all cases are based on individual facts and circumstances, and the above is not provided as legal advice to your specific situation. A consultation with my office and retention as counsel is required prior to any legal advice specific to your particular situation being provided.