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April 15, 2020
Update on South Carolina Court Order Affecting Consumer Financial Services Litigation
On Friday, April 3, 2020, [1] the South Carolina Supreme Court issued Administrative Order No. 2020-04-03-01 regarding Operation of the Trial Courts During the Coronavirus Emergency. This order will impact consumer financial services litigation in South Carolina state courts in a variety of ways.
The governor of South Carolina has issued a Home or Work Order closing certain non-essential businesses, but legal services and the South Carolina court system are not affected by that order. The South Carolina Supreme Court has suspended jury selection and jury trials until further notice and has severely curtailed in-person hearings. In light of these limitations on the court system, the Administrative Order makes the following modification to court rules and procedure:
- Scheduling Orders: The Administrative Order extends all deadlines in existing scheduling orders by 45 days following the Governor’s lifting the state of emergency due to COVID-19. [2]
- Forgiveness of Procedural Defaults: Procedural defaults from March 13, 2020, are forgiven so long as the defaults are corrected within thirty days. This forgiveness does not apply to jurisdictional deadlines, however, like deadlines to appeal.
- Extensions by Consent: While court rule allows South Carolina attorneys under normal circumstances to grant only one extension of a deadline by written consent, the Administrative Order permits attorneys to agree to further extensions of time without seeking permission from the court, and such extensions are “strongly encouraged.”
- Certification in Lieu of Affidavits: Sworn documents to be filed in litigation, such as affidavits supporting motions, can be filed using a certification that any untrue statement in the document subjects the maker to contempt proceedings, similar to the sworn declarations permitted under federal law, see 28 U.S.C. § 1746. The specific language is included in the Order.
- Oath to Witnesses: While the Administrative Order does not permit e-notarization of real estate instruments, wills, or other formal documents, the order does permit oaths to be administered to witnesses in hearings, non-jury trials, and depositions by telephone or video-conferencing. Proposals have been presented to South Carolina’s Governor regarding e-notarization.
Importantly, the Administrative Order does not:
- Extend the statutes of limitations or repose (the Supreme Court notes this issue has been raised to the General Assembly);
- Extend the deadline to file motions to reconsider, motions for relief from judgment, or similar motions under Rules 50(b), 52(b), 59, and 60(b), SCRCP; or
- Extend the deadline for filing and serving a notice of appeal.
If you have any questions, please contact Carmen Thomas or Matt Abee. Additional resources about COVID-19 are available from Nelson Mullins at this link.
The SC Supreme Court has a COVID-19 resources page at this link.
A prior South Carolina order specifically addressed evictions and foreclosures and suspended evictions until May 1, 2020, and suspended foreclosures until further direction from the Court.
The CARES Act also suspends foreclosures and evictions. See these presentation resources for further information.
[1] This article has been updated to reflect the amendments made by In Re: Operation of the Trial Courts During the Coronavirus Emergency, No. 2020-000447 (S.C. Sup. Ct. filed April 14, 2020) (Shearouse Adv. Sh. No. 15 at 1).
[2] On April 14, 2020, the Court amended the Administrative Order’s provision on scheduling orders. In Re: Operation of the Trial Courts During the Coronavirus Emergency, No. 2020-000447 (S.C. Sup. Ct. filed April 14, 2020) (Shearouse Adv. Sh. No. 15 at 1). The Amended Administrative Order now stays all scheduling orders retroactive to March 13, 2020. This stay will automatically end 45 days after Governor McMaster lifts the COVID-19 state of emergency. The Amended Administrative Order allows judges to issue new scheduling orders that will not be subject to the stay, but requires those judges to consider the impact the state of emergency has on the parties’ ability to proceed with the litigation and encourages judges to seek input from the parties before issuing new or amended scheduling orders.
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These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.
