It was only a matter of time before it became common knowledge. My guess is that tens of thousands of homeowners have successfully litigated their foreclosure cases only to come to a fork in the road where they must make a decision: (1) finish the case at trial or (2) accept an incredibly “generous” offer from the pretender lender. My choice is option #1. But Homeowners understandably most often choose option #2.
Much has been written and spoken about the pattern of crises culminating in the catastrophe that has led, so far, to the displacement of 15,000,000 people from their homes, their jobs, and the lives they had built for themselves. We know that another 15,000,000 will most likely be ruined by a basic breach of trust combined with supreme arrogance.
While most people were playing by the rules, the financial institutions burst out of their roles as intermediaries facilitating payments and transfers of money and securities, and beheaded those people, the professionally managed funds that contained their only hope for pensions, and froze the government into gridlock.
I think you should win this one if you do it right.
The banks fall right through the trap door on this one —- they prove that there was probable cause to believe that they were a valid creditor on the note (UCC3) but not a valid enforcer under the deed of trust (mortgage) (UCC9).
Deutsche Bank AG (DBK) may learn today whether it will get a chance to overturn a California court ruling that exposes it to wrongful-eviction claims the bank says will depress prices in foreclosure sales and spur lawsuits against innocent homebuyers.
An appeals court in San Jose, in the first such ruling in the U.S., said in January that Deutsche Bank can be sued in state court for violating a federal tenant-protection law. Two renters sued over their eviction from a foreclosed home the Frankfurt-based company acquired in 2009 as trustee for a mortgage-backed security that contained a loan on the property.
Deutsche Bank, along with bankers’ groups in California and Nevada, told the California Supreme Court the ruling may jeopardize the economic recovery as lenders and investors weigh the risks of buying properties that house unwanted tenants, are subject to leases, or are vulnerable to lawsuits brought by renters evicted by paid middlemen.
“The risk of being declared a landlord, when there was no knowledge of a tenancy at the time of sale, could have a chilling effect on bidding at the foreclosure sale,” Charles McKenna, the bank’s attorney, said in a petition asking the state high court to overturn the decision of the three-judge appeals panel. The San Francisco-based court may decide as soon as today whether to review the ruling.
Deutsche Bank National Trust Co., a U.S. unit of Europe’s largest investment bank, was the beneficiary of the deed of trust securing the loan on the property in Sunnyvale, California. Deutsche Bank, as trustee, acquired the home, which had a two-bedroom garage rental unit, after the owner defaulted on the mortgage.
The tenants, who paid rent to the owner, sued after their belongings were tossed outside and destroyed and police barred them from the home. Deutsche Bank says the foreclosure ended the tenants’ lease, it played no role in evicting them, and loan servicers are responsible for dealing with renters.
More than one-third of all California residential units in foreclosure during the height of the housing crisis were rentals, and more than 200,000 California tenants lost their homes to foreclosures, according to the California Attorney General’s office. If the ruling stands, thousands of these renters could flood state courts with wrongful-eviction lawsuits, according to Deutsche Bank’s petition.
Nonsense, said Richard Rothschild, attorney for Rosario Nativi and her adult son, who rented the garage unit. They sued after finding their belongings — furniture, electronics, clothing and family photos — in a heap in the backyard in September 2009. Nativi was in her native El Salvador having surgery when she was evicted and had paid the $1,600 monthly rent in advance to the owner, according to court records.
Rothschild, legal director at the Western Center on Law and Poverty, said the January ruling established that tenants can take owners who acquire properties through foreclosure to state court for violating protections Congress afforded renters under the 2009 Protecting Tenants Against Foreclosure Act. The law doesn’t give renters the right to sue in federal court.
“The bank can’t decide that its only job is to clear people out,” Rothschild said by phone.
Deutsche Bank filed the petition as trustee of the mortgage-backed security “on behalf of the investors,” said Ari Cohen, a bank spokesman.
The federal law, which expires at the end of this year, requires that tenants be given 90 days’ notice of eviction. The San Jose appeals court said Deutsche Bank stepped into the landlord’s shoes when it acquired the home and had to honor the existing lease until it expired 10 months later or a new owner moved in and gave the tenants 90 days’ notice.
It doesn’t matter that the rental wasn’t legal because the owner hadn’t obtained the proper permit, the court said.
A California law granting the same protections to renters in foreclosed properties was passed last year, Rothschild said.
“We are unaware of even a mild dent in the housing market,” he said in a filing urging the California Supreme Court not to review the case. Median home prices in California rose to a six-year high in March to $376,000, according to San Diego-based research firm DataQuick.
More than 480,000 properties nationwide were bank-owned as of last month, compared with more than 1 million in January 2011, according to research firm RealtyTrac. Almost 45,000 California homes were bank-owned, down from about 146,000 in January 2011, according to RealtyTrac.
Deutsche Bank contracted with American Home Mortgage Servicing Inc. to service the property and prepare it for sale, and American Home hired a local real-estate company to assist, the appeals court said in its ruling. According to Deutsche Bank, the service company’s contract was with American Home Mortgage Corp., the sponsor of the security holding the loan.
American Home Servicing is named as a defendant in the case. Katarina Wenk-Bodenmiller, a spokeswoman for West Palm Beach, Florida-based loan servicer Ocwen Financial Corp. (OC), which acquired American Home, said by phone the company doesn’t comment on ongoing litigation.
When Nativi, a cleaning woman and caretaker for the elderly, tried to get back into the home, police told her to leave after an employee of the local real estate company said she wasn’t a tenant and had no right to be on the property, according to the court.
“We believe this evidence raises triable issues of material fact whether the bank,” through the employee’s conduct, helped prevent the Nativis from getting back into the home and should have done something to help them, the judges ruled, reversing a trial-court judge who sided with the bank. Nativi is seeking damages for losing her home and possessions.
The decision broadens banks’ exposure to renters’ claims that they were wrongfully evicted, said Eric Rans, an attorney with Encino, California-based Michelman & Robinson LLP who represents banks and real estate developers.
The case is Nativi v. Deutsche Bank National Trust Co., S216911, California Supreme Court (San Francisco).
Dismissal of claims seeking to set aside HOA’s nonjudicial foreclosure sale for delinquent assessment fees was improper when owners were not notified of right of redemption under CCP §729.050.
After an HOA conducted a nonjudicial foreclosure sale of Owners’ unit for delinquent assessment fees, Owners sued the HOA and its agents to set aside the foreclosure, alleging irregularities in the sale notices and procedure. The trial court granted summary judgment for the defendants.
The trustor tendered the amount of the secured indebtedness or was excused from tendering.
The trustee’s failure to comply with the statutory procedural requirements for the notice or conduct of the sale satisfied the first element. An HOA’s nonjudicial foreclosure for delinquent assessments is subject to a right of redemption within 90 days after the sale under CCP §729.035. The trustee must serve notice of the right of redemption, indicating the applicable redemption period, under CCP §729.050. Even if a common law presumption of regularity applies to postsale redemption procedures, defendants had to prove that they complied with the statutory procedures to discharge their initial burden of production on a motion for summary judgment; simply referring to the presumption did not suffice.
As to the second element, a debtor who has not received notice under §729.050 has been harmed or prejudiced by not being informed of the postsale right of redemption and the date on which those redemption rights expire. The debtor has no duty to independently calculate the redemption period based on presale notice of the right of redemption. Section 729.050 relieves the debtor of any such burden.
As to the third element, the court concluded that a debtor is excused from complying with the tender requirement when, as here, the nonjudicial foreclosure is subject to a statutory right of redemption and the trustee failed to provide the notice required under §729.050.
THE EDITOR’S TAKE: Homeowner association lien foreclosure sales are made subject to a 90-day period of post-sale statutory redemption, like judicial foreclosure sales, even though these HOA sales are otherwise conducted like nonjudicial trustee sales. That crossover makes it easy for discrepancies to creep in, since the procedure is unique—the trustee must comply with the different rules of both judicial and nonjudicial sales at the same time.
On the pre-sale end, CC §1367.4 requires the notice of sale to contain an extra statement that the sale will be made subject to a right of redemption, while on the post-sale side, CCP §§729.040 and 729.050 require a special certificate of sale (rather than a deed) to go to the foreclosure purchaser and a separate notice of redemption to go to the foreclosure purchaser and former homeowner, respectively, in addition to the notice that was included in the earlier notice of sale. It’s easy to get that mixed up, and clearly makes these HOA sales more complicated than the quick and final (at least in theory) nonjudicial sale under a deed of trust.
This decision holds that an HOA sale that arguably gave the homeowner only one of the two required notices concerning redemption (1) may make the sale “illegal, fraudulent or willfully oppressive”; (2) may be ipso facto harmful or prejudicial; and (3) eliminates the need for the challenger to tender either the amount of the association lien ($13,640) or the amount bid by the purchaser ($20,400), although the obligation itself appeared to not be under attack.


text:
Our thought for today is from Ezekiel 37:14: "I will put my spirit within you, and you shall live."
Let us pray: Living God, breathe into us Your spirit, that these Representatives follow the example of service to the people. Guide them during these last few days as they strive to do what is good for this State. Inspire them to do the responsible thing. Bestow Your blessings upon our Nation, President, State, Governor, Speaker, staff, and all who contribute to the success of this Session. Protect our defenders of freedom as they protect us. Heal the wounds, those seen and those hidden, of our brave warriors who suffer and sacrifice for our freedom. Lord, in Your mercy, hear our prayers. Amen.
Rep. BRADLEY moved that when the House adjourns, it adjourn in memory of Jerry Cook Brown of Hilton Head, which was agreed to.
The House stood in silent prayer for the family of Joseph Robinette "Beau" Biden III.
Whereupon, the Chair appointed Reps. WHITE, PITTS and CLYBURN to the Committee of Conference on the part of the House and a message was ordered sent to the Senate accordingly.
The Senate respectfully invites your Honorable Body to attend in the Senate Chamber today at a mutually convenient time, for the purpose of ratifying Acts.
On motion of Rep. CORLEY the invitation was accepted.
H. 4287 (Word version) -- Reps. Gambrell, Alexander, Allison, Anderson, Anthony, Atwater, Bales, Ballentine, Bamberg, Bannister, Bedingfield, Bernstein, Bingham, Bowers, Bradley, Brannon, G. A. Brown, R. L. Brown, Burns, Chumley, Clary, Clemmons, Clyburn, Cobb-Hunter, Cole, Collins, Corley, H. A. Crawford, Crosby, Daning, Delleney, Dillard, Douglas, Duckworth, Erickson, Felder, Finlay, Forrester, Funderburk, Gagnon, George, Gilliard, Goldfinch, Govan, Hamilton, Hardee, Hart, Hayes, Henderson, Henegan, Herbkersman, Hicks, Hill, Hiott, Hixon, Hodges, Horne, Hosey, Howard, Huggins, Jefferson, Johnson, Jordan, Kennedy, King, Kirby, Knight, Limehouse, Loftis, Long, Lowe, Lucas, Mack, McCoy, McEachern, McKnight, M. S. McLeod, W. J. McLeod, Merrill, Mitchell, D. C. Moss, V. S. Moss, Murphy, Nanney, Neal, Newton, Norman, Norrell, Ott, Parks, Pitts, Pope, Putnam, Quinn, Ridgeway, Riley, Rivers, Robinson-Simpson, Rutherford, Ryhal, Sandifer, Simrill, G. M. Smith, G. R. Smith, J. E. Smith, Sottile, Southard, Spires, Stavrinakis, Stringer, Tallon, Taylor, Thayer, Tinkler, Toole, Weeks, Wells, Whipper, White, Whitmire, Williams, Willis and Yow: A HOUSE RESOLUTION TO RECOGNIZE AND HONOR THE BELTON HONEA PATH HIGH SCHOOL BASEBALL TEAM FOR AN OUTSTANDING SEASON AND TO CONGRATULATE THE PLAYERS ON WINNING THE 2015 CLASS AAA STATE CHAMPIONSHIP TITLE.
H. 4288 (Word version) -- Reps. G. R. Smith, Burns, Chumley, Putnam, Loftis, Hamilton, Nanney, Kennedy, Willis, Bedingfield, Alexander, Allison, Anderson, Anthony, Atwater, Bales, Ballentine, Bamberg, Bannister, Bernstein, Bingham, Bowers, Bradley, Brannon, G. A. Brown, R. L. Brown, Clary, Clemmons, Clyburn, Cobb-Hunter, Cole, Collins, Corley, H. A. Crawford, Crosby, Daning, Delleney, Dillard, Douglas, Duckworth, Erickson, Felder, Finlay, Forrester, Funderburk, Gagnon, Gambrell, George, Gilliard, Goldfinch, Govan, Hardee, Hart, Hayes, Henderson, Henegan, Herbkersman, Hicks, Hill, Hiott, Hixon, Hodges, Horne, Hosey, Howard, Huggins, Jefferson, Johnson, Jordan, King, Kirby, Knight, Limehouse, Long, Lowe, Lucas, Mack, McCoy, McEachern, McKnight, M. S. McLeod, W. J. McLeod, Merrill, Mitchell, D. C. Moss, V. S. Moss, Murphy, Neal, Newton, Norman, Norrell, Ott, Parks, Pitts, Pope, Quinn, Ridgeway, Riley, Rivers, Robinson-Simpson, Rutherford, Ryhal, Sandifer, Simrill, G. M. Smith, J. E. Smith, Sottile, Southard, Spires, Stavrinakis, Stringer, Tallon, Taylor, Thayer, Tinkler, Toole, Weeks, Wells, Whipper, White, Whitmire, Williams and Yow: A HOUSE RESOLUTION TO RECOGNIZE AND HONOR THE PALMETTO FAMILY COUNCIL AND TO CONGRATULATE THE STAFF AND BOARD OF DIRECTORS FOR THEIR SIGNIFICANT IMPACT ON FAMILY VALUES AND RELIGIOUS AND CONSTITUTIONAL FREEDOM IN SOUTH CAROLINA.
H. 4289 (Word version) -- Reps. Willis, Pitts, G. R. Smith, Bedingfield, Alexander, Allison, Anderson, Anthony, Atwater, Bales, Ballentine, Bamberg, Bannister, Bernstein, Bingham, Bowers, Bradley, Brannon, G. A. Brown, R. L. Brown, Burns, Chumley, Clary, Clemmons, Clyburn, Cobb-Hunter, Cole, Collins, Corley, H. A. Crawford, Crosby, Daning, Delleney, Dillard, Douglas, Duckworth, Erickson, Felder, Finlay, Forrester, Funderburk, Gagnon, Gambrell, George, Gilliard, Goldfinch, Govan, Hamilton, Hardee, Hart, Hayes, Henderson, Henegan, Herbkersman, Hicks, Hill, Hiott, Hixon, Hodges, Horne, Hosey, Howard, Huggins, Jefferson, Johnson, Jordan, Kennedy, King, Kirby, Knight, Limehouse, Loftis, Long, Lowe, Lucas, Mack, McCoy, McEachern, McKnight, M. S. McLeod, W. J. McLeod, Merrill, Mitchell, D. C. Moss, V. S. Moss, Murphy, Nanney, Neal, Newton, Norman, Norrell, Ott, Parks, Pope, Putnam, Quinn, Ridgeway, Riley, Rivers, Robinson-Simpson, Rutherford, Ryhal, Sandifer, Simrill, G. M. Smith, J. E. Smith, Sottile, Southard, Spires, Stavrinakis, Stringer, Tallon, Taylor, Thayer, Tinkler, Toole, Weeks, Wells, Whipper, White, Whitmire, Williams and Yow: A HOUSE RESOLUTION TO RECOGNIZE AND HONOR THE SIGNIFICANT SERVICE OF LAURENS ELECTRIC COOPERATIVE AND TO CONGRATULATE THE ORGANIZATION ON ITS SEVENTY-FIFTH ANNIVERSARY OF PROVIDING ELECTRICITY IN THE PALMETTO STATE.
H. 4290 (Word version) -- Reps. Clemmons, Alexander, Allison, Anderson, Anthony, Atwater, Bales, Ballentine, Bamberg, Bannister, Bedingfield, Bernstein, Bingham, Bowers, Bradley, Brannon, G. A. Brown, R. L. Brown, Burns, Chumley, Clary, Clyburn, Cobb-Hunter, Cole, Collins, Corley, H. A. Crawford, Crosby, Daning, Delleney, Dillard, Douglas, Duckworth, Erickson, Felder, Finlay, Forrester, Funderburk, Gagnon, Gambrell, George, Gilliard, Goldfinch, Govan, Hamilton, Hardee, Hart, Hayes, Henderson, Henegan, Herbkersman, Hicks, Hill, Hiott, Hixon, Hodges, Horne, Hosey, Howard, Huggins, Jefferson, Johnson, Jordan, Kennedy, King, Kirby, Knight, Limehouse, Loftis, Long, Lowe, Lucas, Mack, McCoy, McEachern, McKnight, M. S. McLeod, W. J. McLeod, Merrill, Mitchell, D. C. Moss, V. S. Moss, Murphy, Nanney, Neal, Newton, Norman, Norrell, Ott, Parks, Pitts, Pope, Putnam, Quinn, Ridgeway, Riley, Rivers, Robinson-Simpson, Rutherford, Ryhal, Sandifer, Simrill, G. M. Smith, G. R. Smith, J. E. Smith, Sottile, Southard, Spires, Stavrinakis, Stringer, Tallon, Taylor, Thayer, Tinkler, Toole, Weeks, Wells, Whipper, White, Whitmire, Williams, Willis and Yow: A HOUSE RESOLUTION TO HONOR THE MAGNA CARTA WITH ITS UNDERLYING BIBLICAL PRINCIPLES, RECOGNIZING ITS FUNDAMENTAL BASIS FOR WESTERN CIVILIZATION'S LIBERTY UNDER LAW AND ITS ROLE IN THE DEVELOPMENT OF JURISPRUDENCE AND FREEDOM IN OUR NATION AND THROUGHOUT THE WORLD, AND TO DECLARE JUNE 15, 2015, AS "MAGNA CARTA DAY" IN SOUTH CAROLINA.
H. 4291 (Word version) -- Rep. Bannister: A HOUSE RESOLUTION TO AUTHORIZE THE GREENVILLE YOUNG MEN'S CHRISTIAN ASSOCIATION TO USE THE HOUSE CHAMBER AND ANY AVAILABLE COMMITTEE HEARING ROOMS IN THE BLATT BUILDING ON THURSDAY, DECEMBER 3, 2015, AND FRIDAY, DECEMBER 4, 2015, TO CONDUCT THE YOUTH IN GOVERNMENT PROGRAM.
That the members of the South Carolina House of Representatives, by this resolution, authorize the Greenville Young Men's Christian Association to use the House chamber and any available committee hearing rooms in the Blatt Building on Thursday, December 3, 2015, and Friday, December 4, 2015, to conduct the Youth in Government program. If the House is in statewide session, or if the House chamber is otherwise unavailable, the House chamber may not be used on those dates.
Be it further resolved that a copy of this resolution be forwarded to the Executive Director of the YMCA Youth in Government program and to House of Representatives Sergeant at Arms, Mitchell G. Dorman.
H. 4292 (Word version) -- Reps. Erickson, Alexander, Allison, Anderson, Anthony, Atwater, Bales, Ballentine, Bamberg, Bannister, Bedingfield, Bernstein, Bingham, Bowers, Bradley, Brannon, G. A. Brown, R. L. Brown, Burns, Chumley, Clary, Clemmons, Clyburn, Cobb-Hunter, Cole, Collins, Corley, H. A. Crawford, Crosby, Daning, Delleney, Dillard, Douglas, Duckworth, Felder, Finlay, Forrester, Funderburk, Gagnon, Gambrell, George, Gilliard, Goldfinch, Govan, Hamilton, Hardee, Hart, Hayes, Henderson, Henegan, Herbkersman, Hicks, Hill, Hiott, Hixon, Hodges, Horne, Hosey, Howard, Huggins, Jefferson, Johnson, Jordan, Kennedy, King, Kirby, Knight, Limehouse, Loftis, Long, Lowe, Lucas, Mack, McCoy, McEachern, McKnight, M. S. McLeod, W. J. McLeod, Merrill, Mitchell, D. C. Moss, V. S. Moss, Murphy, Nanney, Neal, Newton, Norman, Norrell, Ott, Parks, Pitts, Pope, Putnam, Quinn, Ridgeway, Riley, Rivers, Robinson-Simpson, Rutherford, Ryhal, Sandifer, Simrill, G. M. Smith, G. R. Smith, J. E. Smith, Sottile, Southard, Spires, Stavrinakis, Stringer, Tallon, Taylor, Thayer, Tinkler, Toole, Weeks, Wells, Whipper, White, Whitmire, Williams, Willis and Yow: A HOUSE RESOLUTION TO CELEBRATE THE SIXTIETH ANNUAL BEAUFORT WATER FESTIVAL, TO BE HELD FRIDAY, JULY 17, 2015, THROUGH SUNDAY, JULY 26, 2015, TO ENCOURAGE ALL SOUTH CAROLINIANS TO ATTEND AND ENJOY THIS FAMILY-FRIENDLY EVENT, AND TO WISH ITS ORGANIZERS EVERY SUCCESS.
H. 4294 (Word version) -- Rep. Bingham: A HOUSE RESOLUTION TO RECOGNIZE AND HONOR DR. VENUS J. HOLLAND, SUPERINTENDENT FOR LEXINGTON COUNTY SCHOOL DISTRICT TWO, UPON THE OCCASION OF HER RETIREMENT AFTER A DISTINGUISHED CAREER OF FORTY YEARS IN THE FIELD OF EDUCATION AND TO WISH HER CONTINUED SUCCESS AND HAPPINESS IN ALL HER FUTURE ENDEAVORS.
H. 4300 (Word version) -- Reps. Mitchell, Alexander, Allison, Anderson, Anthony, Atwater, Bales, Ballentine, Bamberg, Bannister, Bedingfield, Bernstein, Bingham, Bowers, Bradley, Brannon, G. A. Brown, R. L. Brown, Burns, Chumley, Clary, Clemmons, Clyburn, Cobb-Hunter, Cole, Collins, Corley, H. A. Crawford, Crosby, Daning, Delleney, Dillard, Douglas, Duckworth, Erickson, Felder, Finlay, Forrester, Funderburk, Gagnon, Gambrell, George, Gilliard, Goldfinch, Govan, Hamilton, Hardee, Hart, Hayes, Henderson, Henegan, Herbkersman, Hicks, Hill, Hiott, Hixon, Hodges, Horne, Hosey, Howard, Huggins, Jefferson, Johnson, Jordan, Kennedy, King, Kirby, Knight, Limehouse, Loftis, Long, Lowe, Lucas, Mack, McCoy, McEachern, McKnight, M. S. McLeod, W. J. McLeod, Merrill, D. C. Moss, V. S. Moss, Murphy, Nanney, Neal, Newton, Norman, Norrell, Ott, Parks, Pitts, Pope, Putnam, Quinn, Ridgeway, Riley, Rivers, Robinson-Simpson, Rutherford, Ryhal, Sandifer, Simrill, G. M. Smith, G. R. Smith, J. E. Smith, Sottile, Southard, Spires, Stavrinakis, Stringer, Tallon, Taylor, Thayer, Tinkler, Toole, Weeks, Wells, Whipper, White, Whitmire, Williams, Willis and Yow: A HOUSE RESOLUTION TO HONOR LEON E. WILES, CHIEF DIVERSITY OFFICER FOR CLEMSON UNIVERSITY, ON THE OCCASION OF HIS RETIREMENT, TO EXTEND DEEP APPRECIATION FOR HIS MANY YEARS OF DISTINGUISHED PUBLIC SERVICE TO THE STATE OF SOUTH CAROLINA, AND TO OFFER BEST WISHES FOR A SATISFYING AND REWARDING RETIREMENT.
H. 4293 (Word version) -- Rep. Quinn: A CONCURRENT RESOLUTION TO REQUEST THAT THE DEPARTMENT OF TRANSPORTATION AND THE DEPARTMENT OF NATURAL RESOURCES RENAME THE "HOPE FERRY LANDING" ON THE SALUDA RIVER THE "J. B. BARKER BOAT LANDING" AND ERECT APPROPRIATE SIGNS OR MARKERS AT THIS LOCATION THAT CONTAIN THIS DESIGNATION.
H. 4295 (Word version) -- Reps. Funderburk, Alexander, Allison, Anderson, Anthony, Atwater, Bales, Ballentine, Bamberg, Bannister, Bedingfield, Bernstein, Bingham, Bowers, Bradley, Brannon, G. A. Brown, R. L. Brown, Burns, Chumley, Clary, Clemmons, Clyburn, Cobb-Hunter, Cole, Collins, Corley, H. A. Crawford, Crosby, Daning, Delleney, Dillard, Douglas, Duckworth, Erickson, Felder, Finlay, Forrester, Gagnon, Gambrell, George, Gilliard, Goldfinch, Govan, Hamilton, Hardee, Hart, Hayes, Henderson, Henegan, Herbkersman, Hicks, Hill, Hiott, Hixon, Hodges, Horne, Hosey, Howard, Huggins, Jefferson, Johnson, Jordan, Kennedy, King, Kirby, Knight, Limehouse, Loftis, Long, Lowe, Lucas, Mack, McCoy, McEachern, McKnight, M. S. McLeod, W. J. McLeod, Merrill, Mitchell, D. C. Moss, V. S. Moss, Murphy, Nanney, Neal, Newton, Norman, Norrell, Ott, Parks, Pitts, Pope, Putnam, Quinn, Ridgeway, Riley, Rivers, Robinson-Simpson, Rutherford, Ryhal, Sandifer, Simrill, G. M. Smith, G. R. Smith, J. E. Smith, Sottile, Southard, Spires, Stavrinakis, Stringer, Tallon, Taylor, Thayer, Tinkler, Toole, Weeks, Wells, Whipper, White, Whitmire, Williams, Willis and Yow: A CONCURRENT RESOLUTION TO RECOGNIZE AND HONOR RICHARD STILTON HAGINS OF KERSHAW COUNTY UPON THE OCCASION OF HIS RETIREMENT AS DIRECTOR OF SALKEHATCHIE-WATEREE CAMP AND TO THANK HIM FOR HIS TWENTY-FIVE YEARS OF SELFLESS SERVICE TO THE PEOPLE OF KERSHAW COUNTY.
H. 4297 (Word version) -- Reps. Govan, Mack, Rutherford, Alexander, Allison, Anderson, Anthony, Atwater, Bales, Ballentine, Bamberg, Bannister, Bedingfield, Bernstein, Bingham, Bowers, Bradley, Brannon, G. A. Brown, R. L. Brown, Burns, Chumley, Clary, Clemmons, Clyburn, Cobb-Hunter, Cole, Collins, Corley, H. A. Crawford, Crosby, Daning, Delleney, Dillard, Douglas, Duckworth, Erickson, Felder, Finlay, Forrester, Funderburk, Gagnon, Gambrell, George, Gilliard, Goldfinch, Hamilton, Hardee, Hart, Hayes, Henderson, Henegan, Herbkersman, Hicks, Hill, Hiott, Hixon, Hodges, Horne, Hosey, Howard, Huggins, Jefferson, Johnson, Jordan, Kennedy, King, Kirby, Knight, Limehouse, Loftis, Long, Lowe, Lucas, McCoy, McEachern, McKnight, M. S. McLeod, W. J. McLeod, Merrill, Mitchell, D. C. Moss, V. S. Moss, Murphy, Nanney, Neal, Newton, Norman, Norrell, Ott, Parks, Pitts, Pope, Putnam, Quinn, Ridgeway, Riley, Rivers, Robinson-Simpson, Ryhal, Sandifer, Simrill, G. M. Smith, G. R. Smith, J. E. Smith, Sottile, Southard, Spires, Stavrinakis, Stringer, Tallon, Taylor, Thayer, Tinkler, Toole, Weeks, Wells, Whipper, White, Whitmire, Williams, Willis and Yow: A CONCURRENT RESOLUTION TO EXPRESS THE PROFOUND SORROW OF THE MEMBERS OF THE SOUTH CAROLINA GENERAL ASSEMBLY UPON THE PASSING OF THE HONORABLE JOSEPH ROBINETTE "BEAU" BIDEN III OF THE STATE OF DELAWARE, AND TO EXTEND THEIR DEEPEST SYMPATHY TO HIS LOVING FAMILY AND HIS MANY FRIENDS AND COLLEAGUES.
H. 4298 (Word version) -- Reps. Putnam and Hill: A JOINT RESOLUTION PROPOSING AN AMENDMENT TO SECTION 7, ARTICLE VI OF THE CONSTITUTION OF SOUTH CAROLINA, 1895, RELATING TO THE CONSTITUTIONAL OFFICERS OF THIS STATE, TO PROVIDE THAT THERE SHALL BE ELECTED BY THE QUALIFIED VOTERS OF THIS STATE A SECRETARY OF TRANSPORTATION WHO SHALL HOLD THIS OFFICE FOR A TERM OF FOUR YEARS, COTERMINOUS WITH THAT OF THE GOVERNOR WHOSE DUTIES AND COMPENSATION MUST BE PRESCRIBED BY LAW.
Rep. PUTNAM asked unanimous consent to have the Joint Resolution placed on the Calendar without reference.
Rep. D. C. MOSS objected.
On motion of Rep. CLARY, with unanimous consent, the Bill was ordered placed on the Calendar without reference.
I came in after the roll call and was present for the Session on Tuesday, June 2.
William "Bill" Hixon              Peter McCoy, Jr.
The SPEAKER PRO TEMPORE granted Rep. YOW a leave of absence for the day due to family medical reasons.
The SPEAKER PRO TEMPORE granted Rep. HORNE a leave of absence for the day due to work obligations.
The SPEAKER PRO TEMPORE granted Rep. MURPHY a temporary leave of absence.
The SPEAKER PRO TEMPORE granted Rep. V. S. MOSS a temporary leave of absence.
Rep. SPIRES moved that the House recede until 3:00 p.m., which was agreed to.
The SPEAKER granted Rep. NEWTON a leave of absence for the remainder of the day due to a family commitment.
The SPEAKER granted Rep. FUNDERBURK a leave of absence for the remainder of the day due to attending an economic development announcement in Kershaw County.
Rep. HAYES asked unanimous consent to recall S. 135 (Word version) from the Committee on Labor, Commerce and Industry.
Rep. CLEMMONS asked unanimous consent to recall S. 667 (Word version) from the Committee on Judiciary.
Rep. J. E. SMITH moved to table the amendment.
I was temporarily out of the Chamber on constituent business during the vote on Amendment No. 1A to H. 3114. If I had been present, I would have voted in favor of the Amendment.
Rep. W. J. MCLEOD made the Point of Order that the Senate Amendments were improperly before the House for consideration since its number and title have not been printed in the House Calendar at least one statewide legislative day prior to such reading.
Rep. TALLON moved to waive Rule 5.10, pursuant to Rule 5.15.
So, the House refused to waive Rule 5.10, pursuant to Rule 5.15.
Rep. RILEY moved that the House recur to the morning hour, which was agreed to.
H. 4301 (Word version) -- Reps. Anderson, Alexander, Allison, Anthony, Atwater, Bales, Ballentine, Bamberg, Bannister, Bedingfield, Bernstein, Bingham, Bowers, Bradley, Brannon, G. A. Brown, R. L. Brown, Burns, Chumley, Clary, Clemmons, Clyburn, Cobb-Hunter, Cole, Collins, Corley, H. A. Crawford, Crosby, Daning, Delleney, Dillard, Douglas, Duckworth, Erickson, Felder, Finlay, Forrester, Funderburk, Gagnon, Gambrell, George, Gilliard, Goldfinch, Govan, Hamilton, Hardee, Hart, Hayes, Henderson, Henegan, Herbkersman, Hicks, Hill, Hiott, Hixon, Hodges, Horne, Hosey, Howard, Huggins, Jefferson, Johnson, Jordan, Kennedy, King, Kirby, Knight, Limehouse, Loftis, Long, Lowe, Lucas, Mack, McCoy, McEachern, McKnight, M. S. McLeod, W. J. McLeod, Merrill, Mitchell, D. C. Moss, V. S. Moss, Murphy, Nanney, Neal, Newton, Norman, Norrell, Ott, Parks, Pitts, Pope, Putnam, Quinn, Ridgeway, Riley, Rivers, Robinson-Simpson, Rutherford, Ryhal, Sandifer, Simrill, G. M. Smith, G. R. Smith, J. E. Smith, Sottile, Southard, Spires, Stavrinakis, Stringer, Tallon, Taylor, Thayer, Tinkler, Toole, Weeks, Wells, Whipper, White, Whitmire, Williams, Willis and Yow: A HOUSE RESOLUTION TO CONGRATULATE CARLETHIA DENTLEY WILLIAMS OF GEORGETOWN COUNTY ON THE OCCASION OF HER NINETY-FIFTH BIRTHDAY AND TO WISH HER A JOYOUS BIRTHDAY CELEBRATION AND MANY YEARS OF CONTINUED HEALTH AND HAPPINESS.
S. 839 (Word version) -- Senators O'Dell and Nicholson: A CONCURRENT RESOLUTION TO RECOGNIZE AND HONOR JUANITA DAVENPORT "NITA" HOZEY, OWNER AND SOLE OPERATOR OF PRAISE UNLIMITED WEDDINGS, LLC, AND TO CONGRATULATE HER FOR BEING NAMED THE 2015 SOUTH CAROLINA WOMEN IN BUSINESS ADVOCATE OF THE YEAR.
S. 843 (Word version) -- Senator Thurmond: A CONCURRENT RESOLUTION TO RECOGNIZE AND COMMEND DR. BRIAN QUATTLEBAUM OF NORTH CHARLESTON FOR HIS SERVICE AS PRESIDENT OF THE SOUTH CAROLINA CHIROPRACTIC ASSOCIATION FOR 2014-2015 AND TO WISH HIM THE BEST IN ALL HIS FUTURE ENDEAVORS.
Rep. QUINN made the Point of Order that the Bill was improperly before the House for consideration since its number and title have not been printed in the House Calendar at least one statewide legislative day prior to second reading.
Rep. LOFTIS asked unanimous consent to recall S. 667 (Word version) from the Committee on Judiciary.
H. 4208 (Word version) -- Reps. Atwater and Long: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 30 TO TITLE 27 TO ENACT THE "SOUTH CAROLINA HOMEOWNERS PROTECTION ACT OF 2015" SO AS TO SET FORTH THE MANNER IN WHICH A HOMEOWNERS ASSOCIATION CREATED AFTER 2015 MUST BE ESTABLISHED AND ADMINISTERED, AND TO SET FORTH THE RIGHTS OF THE ASSOCIATION AND ITS OWNERS; TO AMEND SECTION 22-3-10, RELATING TO THE JURISDICTION OF MAGISTRATES, SO AS TO GRANT MAGISTRATES CONCURRENT CIVIL JURISDICTION IN CERTAIN ACTIONS BETWEEN ASSOCIATIONS AND OWNERS; AND TO AMEND SECTION 22-3-20, RELATING TO THE JURISDICTION OF MAGISTRATES, SO AS TO PROVIDE THAT A MAGISTRATE DOES NOT HAVE JURISDICTION OF CERTAIN FORECLOSURE ACTIONS BY AN ASSOCIATION.
Rep. WHIPPER, with unanimous consent, withdrew his request for debate on H. 3008 (Word version); however, other requests for debate remained on the Bill.
Rep. R. L. BROWN, with unanimous consent, withdrew his request for debate on H. 3008 (Word version); however, other requests for debate remained on the Bill.
Rep. HENEGAN, with unanimous consent, withdrew her request for debate on H. 3521 (Word version); however, other requests for debate remained on the Bill.
Rep. TALLON, with unanimous consent, withdrew his request for debate on H. 3008 (Word version); however, other requests for debate remained on the Bill.
Rep. DANING, with unanimous consent, withdrew his request for debate on H. 3008 (Word version); however, other requests for debate remained on the Bill.
Rep. MCEACHERN, with unanimous consent, withdrew his request for debate on H. 3521 (Word version); however, other requests for debate remained on the Bill.
Rep. HILL made the Point of Order that the Senate Amendments were improperly before the House for consideration since its number and title have not been printed in the House Calendar at least one statewide legislative day prior to such reading.
While voting on H. 3583, I intended to vote yea, as I am against any discriminatory boycotts of Israel and all our United States trading partners.
(L) A person who violates the provisions of this section may be prosecuted by the State Grand Jury, pursuant to Section 14-7-1600, when a victim is trafficked in more than one county or a trafficker commits the offense of trafficking in persons in more than one county."
Rep. BRANNON explained the Conference Report.
Rep. D. C. MOSS moved that the House do now adjourn.
The House refused to adjourn by a division vote of 38 to 41.
H. 4185 (Word version) -- Rep. McEachern: A CONCURRENT RESOLUTION TO REQUEST THAT THE DEPARTMENT OF TRANSPORTATION NAME THE INTERCHANGE LOCATED AT THE INTERSECTION OF INTERSTATE HIGHWAY 20 AND UNITED STATES HIGHWAY 321 IN RICHLAND COUNTY "WILLIE R. PORTEE INTERCHANGE" AND ERECT APPROPRIATE MARKERS OR SIGNS AT THIS INTERCHANGE THAT CONTAIN THIS DESIGNATION.
S. 331 (Word version) -- Senator Rankin: A CONCURRENT RESOLUTION TO REQUEST THAT THE DEPARTMENT OF TRANSPORTATION NAME THE PORTION OF US HIGHWAY 17 AT THE INTERSECTION OF FARROW PARKWAY AND SC 707 IN HONOR OF THE BELLAMY FAMILY, AND ERECT APPROPRIATE MARKERS OR SIGNS ALONG THIS PORTION OF HIGHWAY THAT CONTAIN THE WORDS "THE BELLAMY INTERCHANGE".
Rep. HILL moved to recall the following Bill from the Committee on Judiciary.
H. 3716 (Word version) -- Reps. Hill, Putnam, G. R. Smith, Corley, Bedingfield, Chumley, Burns and Loftis: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ENACTING THE "SOUTH CAROLINA CONSTITUTIONAL CARRY ACT OF 2015"; TO AMEND SECTION 10-11-320, RELATING TO CARRYING OR DISCHARGING OF A FIREARM, SO AS TO DELETE THE TERM "CONCEALABLE WEAPONS' PERMIT" AND REPLACE IT WITH THE TERM "FIREARM"; TO AMEND SECTION 16-23-20, AS AMENDED, RELATING TO THE UNLAWFUL CARRYING OF A HANDGUN, SO AS TO DELETE REFERENCES TO A CONCEALED WEAPONS PERMIT ISSUED TO A PERSON, TO REVISE THE PROVISION THAT ALLOWS A HANDGUN TO BE CARRIED BY A PERSON IN A VEHICLE, AND TO PROVIDE THAT CERTAIN PERSONS WHO ARE AT LEAST TWENTY-ONE YEARS OF AGE MAY CARRY A HANDGUN UNDER CERTAIN CIRCUMSTANCES; TO AMEND SECTIONS 16-23-420 AND 16-23-430, AS AMENDED, BOTH RELATING TO THE POSSESSION OF A FIREARM ON SCHOOL PROPERTY, SO AS TO DELETE REFERENCES TO CONCEALED WEAPON PERMITS, AND TO PROVIDE THAT BOTH SECTIONS DO NOT APPLY TO A PERSON WHO LAWFULLY IS CARRYING A WEAPON; TO AMEND SECTION 16-23-460, AS AMENDED, RELATING TO CARRYING CONCEALED WEAPONS, SO AS TO PROVIDE THAT THIS SECTION DOES NOT APPLY TO HANDGUNS; TO AMEND SECTION 51-3-145, AS AMENDED, RELATING TO CERTAIN ACTS THAT ARE UNLAWFUL IN A STATE PARK, SO AS TO MAKE A TECHNICAL CHANGE; TO AMEND SECTION 23-31-215, AS AMENDED, RELATING TO THE ISSUANCE OF A CONCEALED WEAPON PERMIT, SO AS TO PROVIDE AN EXCEPTION TO THE PROVISION THAT PROHIBITS THE CARRYING OF A CONCEALABLE WEAPON ONTO CERTAIN PREMISES, TO DELETE THE PROVISION THAT PROVIDES FOR THE REVOCATION OF A PERSON'S PERMIT WHEN HE VIOLATES CERTAIN PROVISIONS CONTAINED IN THIS SECTION, AND TO REVISE THE PROVISION THAT ALLOWS CERTAIN PERSONS TO CARRY A CONCEALED WEAPON WITHOUT A PERMIT; TO AMEND SECTIONS 23-31-220 AND 23-31-225, BOTH RELATING TO A PROPERTY OWNER'S RIGHT TO ALLOW A HOLDER OF A CONCEALED WEAPON PERMIT TO CARRY A WEAPON ONTO HIS PROPERTY, SO AS TO MAKE TECHNICAL CHANGES, TO PROVIDE THAT THIS PROVISION REGULATES BOTH PERSONS WHO POSSESS AND DO NOT POSSESS A WEAPONS PERMIT, AND TO DELETE THE PROVISION THAT REQUIRES THE REVOCATION OF A PERMIT FOR A VIOLATION OF CERTAIN PROVISIONS OF LAW, AND TO DELETE A REFERENCE TO THE PROVISION THAT PROVIDES FOR THE ISSUANCE OF CONCEALED WEAPON PERMITS; AND TO AMEND SECTION 23-31-240, RELATING TO PERSONS WHO ARE ALLOWED TO CARRY A CONCEALED WEAPON WHILE ON DUTY, SO AS TO DELETE THE PROVISION THAT REQUIRES THESE PERSONS TO POSSESS A CONCEALED WEAPON PERMIT.
Rep. J. E. SMITH moved to table the motion.
So, the House refused to table the motion to recall H. 3716.
The question recurred to the motion to recall H. 3716 from the Committee on Judiciary.
By voice vote, the House refused to recall H. 3716 from Judiciary.
Rep. WHITE moved to dispense with the balance of the Motion Period, which was agreed to.
Rep. GAGNON moved to adjourn debate on the Bill until Wednesday, June 3, which was agreed to.
Rep. WEEKS moved to adjourn debate on the Bill until Wednesday, June 3, which was agreed to.
/ SECTION 1. The General Assembly finds that it shall be the public policy of this State to protect its citizens from the application of foreign laws, whether secular or religious in nature or origin, when the application of a foreign law will result in the violation of a right guaranteed by the Constitution of this State or of the United States including, but not limited to, due process, freedom of religion, speech, or press, and any right of privacy as specifically defined by the Constitution of this State. The General Assembly fully recognizes the right to contract freely under the laws of this State and also recognizes that this right may be reasonably and rationally circumscribed pursuant to the state's interest to protect and promote rights and privileges granted under the United States or South Carolina Constitution including, but not limited to, due process, freedom of religion, speech, or press, and any right of privacy as specifically defined by the Constitution of the United States or of this State.
"Section 14-1-250. (A) As used in this section, 'foreign law' means any law, legal code, or legal system of a jurisdiction outside of any state or territory of the United States including, but not limited to, international organizations and tribunals regardless of whether such law, legal code, or legal system is actively used or applied by that jurisdiction's courts, administrative bodies, or other formal or informal tribunals.
(B) Any court, arbitration, tribunal, or administrative agency ruling or decision in a matter at issue shall violate the public policy of this State and be void and unenforceable to the extent that any such ruling or decision is based upon any foreign law that would not grant the parties affected by the ruling or decision, at a minimum, the fundamental liberties, rights, and privileges granted under the United States and South Carolina Constitutions including, but not limited to, due process, freedom of religion, speech, or press, and any right of privacy as specifically defined by the Constitution of the United States, or of this State.
(C) A contract or, if severable, a contractual provision which provides for the choice of a foreign law to govern some or all of the disputes between the parties adjudicated by a court of law or by an arbitration panel arising from the contract mutually agreed upon shall violate the public policy of this State and be void and unenforceable entirely or, if severable, to the extent of the violation, if the foreign law chosen would apply any substantive or procedural law that would not grant the parties the same fundamental liberties, rights, and privileges granted under the United States or South Carolina Constitutions including, but not limited to, due process, freedom of religion, speech, or press, and any right of privacy as specifically defined by the Constitution of the United States or of this State.
(D)(1) A contract or, if severable, a contractual provision which provides the courts or arbitration panels in personam jurisdiction over the parties to adjudicate any disputes between parties arising from the contract mutually agreed upon shall violate the public policy of this State and be void and unenforceable entirely or, if severable, to the extent of the violation, if the jurisdiction chosen applies any foreign law to the dispute at issue, that would not grant the parties, at a minimum, the fundamental liberties, rights, and privileges granted under the United States and South Carolina Constitutions including, but not limited to, due process, freedom of religion, speech, or press, and any right of privacy as specifically defined by the Constitution of the United States or the Constitution of this State.
(2) If a resident of this State, subject to personal jurisdiction in this State, seeks to maintain litigation, arbitration, agency, or similarly binding proceedings in this State and if the courts of this State find that granting a claim of forum non conveniens or a related claim would result or likely result in a violation in the foreign forum of the nonclaimant's fundamental liberties, rights, and privileges granted under the United States or South Carolina Constitution with respect to the matter in dispute, then it is the public policy of this State that the claim shall be denied.
(E) This section shall not apply to a church or other religious organization, association, or society, with respect to the individuals of a particular religion regarding matters that are purely ecclesiastical including, but not limited to, matters of calling a pastor, excluding members from a church, electing church officers, matters concerning church bylaws, constitution, and doctrinal regulations and the conduct of other routine church business, when the jurisdiction of the courts of this State would be contrary to the First Amendment of the United States and the Constitution of this State.
Rep. LIMEHOUSE moved to adjourn debate on the Bill until Wednesday, June 3, which was agreed to.
Rep. HODGES moved that the House do now adjourn, which was agreed to.
(R. 80, S. 3 (Word version)) -- Senators L. Martin, Shealy, Malloy, Courson, Fair, Turner, Lourie and Hembree: AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO ENACT THE "DOMESTIC VIOLENCE REFORM ACT"; TO AMEND SECTION 16-25-10, AS AMENDED, RELATING TO DEFINITIONS FOR PURPOSES OF DOMESTIC VIOLENCE OFFENSES, SO AS TO DEFINE OTHER NECESSARY TERMS; TO AMEND SECTION 16-3-600, AS AMENDED, RELATING TO ASSAULT AND BATTERY OFFENSES, SO AS TO REVISE THE DEFINITION OF "MODERATE BODILY INJURY" TO CONFORM; TO AMEND SECTION 16-25-20, AS AMENDED, RELATING TO DOMESTIC VIOLENCE OFFENSES, SO AS TO RESTRUCTURE THE OFFENSES BY GRADUATING THE PENALTIES INTO DEGREES, DEFINE THE ELEMENTS OF EACH DEGREE, AND PROVIDE A NEW PENALTY STRUCTURE, AMONG OTHER THINGS; TO AMEND SECTION 16-25-65, AS AMENDED, RELATING TO DOMESTIC VIOLENCE OF A HIGH AND AGGRAVATED NATURE, SO AS TO RESTRUCTURE THE OFFENSE, REDEFINE THE ELEMENTS OF THE OFFENSE, AND TO RESTRUCTURE THE PENALTY; TO AMEND SECTION 16-1-60, AS AMENDED, RELATING TO CRIMES DEFINED AS VIOLENT, SO AS TO INCLUDE DOMESTIC VIOLENCE IN THE FIRST DEGREE AS A VIOLENT CRIME; TO AMEND SECTION 17-25-45, AS AMENDED, RELATING TO OFFENSES DEFINED AS "MOST SERIOUS" AND "SERIOUS", SO AS TO ADD THE OFFENSES OF DOMESTIC VIOLENCE OF A HIGH AND AGGRAVATED NATURE AND DOMESTIC VIOLENCE IN THE FIRST DEGREE TO THE LIST OF "SERIOUS" OFFENSES; TO AMEND SECTION 56-7-10, AS AMENDED, RELATING TO UNIFORM TRAFFIC TICKETS, SO AS TO INCLUDE DOMESTIC VIOLENCE IN THE SECOND AND THIRD DEGREE OFFENSES TO THE LIST OF ADDITIONAL OFFENSES FOR WHICH A UNIFORM TRAFFIC TICKET MAY BE ISSUED; TO AMEND SECTION 16-25-30, RELATING TO POSSESSION OF A FIREARM BY A PERSON CONVICTED OF CERTAIN DOMESTIC VIOLENCE OFFENSES, SO AS TO PROVIDE THAT IT IS UNLAWFUL FOR PERSONS CONVICTED OF CERTAIN DOMESTIC VIOLENCE OFFENSES TO SHIP, TRANSPORT, RECEIVE, OR POSSESS A FIREARM OR AMMUNITION UNDER CERTAIN CIRCUMSTANCES AND PROVIDE A TIME FRAME FOR THE RESTORING OF RIGHTS REGARDING SHIPPING, TRANSPORTING, RECEIVING, OR POSSESSING A FIREARM OR AMMUNITION; TO AMEND SECTION 17-15-30 AND SECTION 22-5-510, BOTH AS AMENDED, RELATING TO MATTERS TO BE CONSIDERED WHEN DETERMINING CONDITIONS OF RELEASE ON BOND AND BOND HEARINGS AND INFORMATION TO BE PROVIDED TO THE COURT, RESPECTIVELY, BOTH SO AS TO REQUIRE THE COURT TO CONSIDER IF RELEASE ON BOND WOULD CONSTITUTE AN UNREASONABLE DANGER TO THE COMMUNITY OR AN INDIVIDUAL, TO PROVIDE THAT WHEN A PERSON IS CHARGED WITH A VIOLATION OF CERTAIN DOMESTIC VIOLENCE OFFENSES THAT A BOND HEARING MAY NOT PROCEED WITHOUT THE PERSON'S CRIMINAL RECORD AND INCIDENT REPORT, OR THE PRESENCE OF THE ARRESTING OFFICER, AND TO REQUIRE BOND HEARINGS FOR THESE VIOLATIONS TO BE HELD WITHIN TWENTY-FOUR HOURS AFTER ARREST; TO AMEND SECTION 17-15-10, RELATING TO PERSONS WHO MAY BE RELEASED PENDING TRIAL, SO AS TO REQUIRE THE COURT TO CONSIDER IF RELEASE ON BOND WOULD CONSTITUTE AN UNREASONABLE DANGER TO THE COMMUNITY OR AN INDIVIDUAL; TO AMEND SECTION 16-25-120, AS AMENDED, RELATING TO THE RELEASE OF A PERSON ON BOND WHO IS CHARGED WITH A VIOLENT OFFENSE OR WHEN THE VICTIM IS A HOUSEHOLD MEMBER, SO AS TO PROVIDE THAT THE COURT MUST CONSIDER CERTAIN FACTORS BEFORE RELEASING A PERSON ON BOND; TO AMEND SECTION 17-15-50, RELATING TO AMENDMENT OF AN ORDER RELATING TO BOND, SO AS TO CLARIFY THAT THE COURT WITH JURISDICTION OF THE OFFENSE MAY AMEND THE ORDER AT ANY TIME; TO AMEND SECTION 17-15-55, AS AMENDED, RELATING TO BOND AND THE AUTHORITY OF THE CIRCUIT COURT TO REVOKE BOND UNDER CERTAIN CIRCUMSTANCES, SO AS TO PROVIDE FOR THE PURPOSE OF BOND REVOCATION ONLY THAT A SUMMARY COURT HAS CONCURRENT JURISDICTION WITH THE CIRCUIT COURT FOR TEN DAYS FROM THE DATE BOND IS FIRST SET ON A CHARGE BY THE SUMMARY COURT TO DETERMINE IF BOND SHOULD BE REVOKED; TO AMEND SECTION 16-25-70, AS AMENDED, RELATING TO WARRANTLESS ARREST OR SEARCH FOR A DOMESTIC VIOLENCE OFFENSE, SO AS TO REQUIRE THAT THE MANDATED LAW ENFORCEMENT INVESTIGATION OF A DOMESTIC VIOLENCE OFFENSE MUST BE DOCUMENTED ON AN INCIDENT REPORT FORM WHICH MUST BE MAINTAINED BY THE INVESTIGATING AGENCY; TO AMEND SECTION 16-3-1110, RELATING TO DEFINITIONS FOR PURPOSES OF THE ARTICLE ON COMPENSATION OF VICTIMS OF CRIME, SO AS TO INCLUDE MINOR WITNESSES TO A DOMESTIC VIOLENCE OFFENSE IN THE DEFINITION OF "VICTIM"; TO DIRECT THE DEPARTMENT OF SOCIAL SERVICES IN CONSULTATION WITH THE SOUTH CAROLINA VOUCHER PROGRAM TO PROVIDE CERTAIN CHILDCARE SERVICES TO VICTIMS OF DOMESTIC VIOLENCE TO ENCOURAGE PARTICIPATION IN COURT HEARINGS RELATING TO DOMESTIC VIOLENCE; TO AMEND SECTION 17-22-90, RELATING TO PRETRIAL INTERVENTION PROGRAMS AND AGREEMENTS REQUIRED BY OFFENDERS IN A PROGRAM, SO AS TO REQUIRE THE CIRCUIT SOLICITOR, OR ATTORNEY GENERAL IF APPROPRIATE, TO SELECT AND APPROVE A BATTERER'S TREATMENT PROGRAM FOR USE AS PART OF PRETRIAL INTERVENTION FOR CERTAIN DOMESTIC VIOLENCE OFFENSES; BY ADDING ARTICLE 3 TO CHAPTER 25, TITLE 16 SO AS TO CREATE THE DOMESTIC VIOLENCE ADVISORY COMMITTEE WHOSE PURPOSE IS TO DECREASE THE INCIDENCES OF DOMESTIC VIOLENCE, TO DEFINE NECESSARY TERMS, TO PROVIDE FOR THE MEMBERSHIP OF THE COMMITTEE, TO PROVIDE FOR THE DUTIES OF THE COMMITTEE, AND TO EXEMPT CERTAIN MEETINGS AND INFORMATION FROM THE PROVISIONS OF THE FREEDOM OF INFORMATION ACT AND PROVIDE FOR CONFIDENTIALITY OF CERTAIN INFORMATION RELATED TO THE INVESTIGATION AND REVIEW OF INCIDENCES OF DOMESTIC VIOLENCE BY THE COMMITTEE; BY ADDING ARTICLE 5 TO CHAPTER 25, TITLE 16 SO AS TO RECODIFY THE PROVISIONS OF SECTION 43-1-260, RELATING TO COMMUNITY DOMESTIC VIOLENCE COORDINATING COUNCILS, WITHIN ARTICLE 5; TO AMEND SECTION 59-32-30, AS AMENDED, RELATING TO SUBJECTS TAUGHT IN THE COMPREHENSIVE HEALTH EDUCATION PROGRAM, SO AS TO ADD THE SUBJECT OF DOMESTIC VIOLENCE BEGINNING WITH THE 2016-2017 SCHOOL YEAR; TO REPEAL SECTION 43-1-260 RELATING TO COMMUNITY DOMESTIC VIOLENCE COORDINATING COUNCILS; BY ADDING ARTICLE 18 TO CHAPTER 3, TITLE 16 SO AS TO CREATE PROVISIONS REGARDING PERMANENT RESTRAINING ORDERS, TO DEFINE NECESSARY TERMS, TO PROVIDE PROCEDURES FOR OBTAINING PERMANENT RESTRAINING ORDERS AND EMERGENCY RESTRAINING ORDERS; AND TO AMEND SECTION 22-5-910, AS AMENDED, RELATING TO EXPUNGEMENT OF CRIMINAL RECORDS, SO AS TO INCLUDE FIRST OFFENSE CONVICTIONS FOR DOMESTIC VIOLENCE IN THE THIRD DEGREE IN THE PURVIEW OF THE STATUTE AFTER FIVE YEARS FROM THE DATE OF CONVICTION.
(R. 81, S. 261 (Word version)) -- Senator Thurmond: AN ACT TO AMEND SECTION 59-111-320, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PROVISIONS ALLOWING PERSONS AGE SIXTY AND OVER TO ATTEND STATE-SUPPORTED INSTITUTIONS OF HIGHER EDUCATION WITHOUT PAYMENT OF TUITION, SO AS TO REMOVE CRITERIA PROVIDING THESE PERSONS MAY RECEIVE NO COMPENSATION AS FULL-TIME EMPLOYEES.
(R. 82, S. 301 (Word version)) -- Senator Alexander: AN ACT TO AMEND SECTION 40-2-10, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE SOUTH CAROLINA BOARD OF ACCOUNTANCY, SO AS TO REVISE THE BOARD'S COMPOSITION; TO AMEND SECTION 40-2-20, RELATING TO DEFINITIONS CONCERNING THE PRACTICE OF ACCOUNTANCY, SO AS TO REVISE CERTAIN DEFINITIONS; TO AMEND SECTION 40-2-30, AS AMENDED, RELATING TO ACTIVITIES REQUIRING LICENSURE OR FIRM REGISTRATION, SO AS TO REPLACE A REFERENCE TO THE TERM "FINANCIAL STATEMENTS" WITH THE WORD "INFORMATION" AND TO ADD AN APPROPRIATE CROSS-REFERENCE; TO AMEND SECTION 40-2-35, RELATING TO CERTIFIED PUBLIC ACCOUNTANT LICENSURE REQUIREMENTS, SO AS TO REQUIRE APPLICANTS TO UNDERGO CERTAIN STATE AND FEDERAL CRIMINAL RECORDS CHECKS, TO REQUIRE CONTINUING EDUCATION OR ADDITIONAL EXPERIENCE, AS APPLICABLE, FOR APPLICANTS WHO DELAY SUBMITTING AN APPLICATION FOR A SUBSTANTIAL PERIOD OF TIME AFTER PASSING THE CERTIFIED PUBLIC ACCOUNTING EXAMINATION OR OBTAINING ACCOUNTING EXPERIENCE, AND TO PROVIDE A NECESSARY DEFINITION; TO AMEND SECTION 40-2-40, RELATING TO QUALIFICATIONS FOR REGISTRATION OF CERTIFIED PUBLIC ACCOUNTING FIRMS, SO AS TO PROVIDE THAT A SIMPLE MAJORITY OF THE FIRM OWNERSHIP MUST BE CERTIFIED PUBLIC ACCOUNTANTS, TO PROVIDE QUALIFICATIONS AND CONTINUING PROFESSIONAL EDUCATION REQUIREMENTS FOR NONCERTIFIED PUBLIC ACCOUNTANT FIRM OWNERS, TO DELETE PROHIBITIONS AGAINST OWNERSHIP BY INVESTORS AND COMMERCIAL ENTERPRISES, AND TO GIVE THE BOARD OF ACCOUNTANCY THE DISCRETION TO CHARGE RELATED FEES; TO AMEND SECTION 40-2-80, AS AMENDED, RELATING TO THE INVESTIGATION OF COMPLAINTS AND DISCIPLINARY PROCEEDINGS, SO AS TO PROVIDE THE DEPARTMENT OF LABOR, LICENSING AND REGULATION MAY REQUIRE STATE AND FEDERAL CRIMINAL RECORDS CHECKS IN CONDUCTING SUCH INVESTIGATIONS AND PROCEEDINGS, TO PROHIBIT USE OF CERTAIN CRIMINAL CHARGE DISMISSALS OR RESTITUTION PAYMENTS AS EVIDENCE OF MISCONDUCT SUBJECT TO DISCIPLINE, AND TO PROVIDE FOR THE RECOVERY OF RELATED COSTS; TO AMEND SECTION 40-2-250, AS AMENDED, RELATING TO LICENSE RENEWALS, TO PROVIDE THAT RENEWAL APPLICATIONS MUST BE FILED ON OR BEFORE FEBRUARY FIRST, TO GIVE THE BOARD DISCRETION TO CHARGE RELATED FEES, AND TO PROVIDE THAT LATE FILINGS MAY RESULT IN LAPSE, REINSTATEMENT FEES, AND SANCTIONS; TO AMEND SECTION 40-2-255, RELATING TO REGISTRATION RENEWALS, SO AS TO PROVIDE THAT RENEWAL APPLICATIONS MUST BE FILED ON OR BEFORE FEBRUARY FIRST, TO GIVE THE BOARD DISCRETION TO CHARGE RELATED FEES, AND TO PROVIDE THAT LATE FILINGS MAY RESULT IN LAPSE AND SANCTIONS; AND TO AMEND SECTION 40-2-560, RELATING TO ISSUANCE OF LICENSES, SO AS TO ADD A CROSS-REFERENCE.
(R. 83, S. 437 (Word version)) -- Senators Campsen, Reese, Gregory, Hutto, Cleary, Campbell, Cromer, Young, Bryant, Williams, Bennett, Johnson, Hembree, O'Dell, Davis, Fair, Hayes and Verdin: AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 59-29-240 SO AS TO ENACT THE "JAMES B. EDWARDS CIVICS EDUCATION INITIATIVE", TO DEFINE THE TERM "CIVICS TEST", TO REQUIRE ALL STUDENTS OF PUBLIC OR CHARTER SCHOOLS IN THIS STATE TO TAKE THE CIVICS TEST PRODUCED BY THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES AS PART OF THE UNITED STATES GOVERNMENT REQUIRED CREDIT, TO ALLOW SCHOOL DISTRICTS TO RECOGNIZE STUDENTS WHO RECEIVE A PASSING GRADE ON THE TEST, TO DIRECT THE RESPECTIVE SCHOOLS TO REPORT RESULTS TO THE SOUTH CAROLINA EDUCATION OVERSIGHT COMMITTEE FOR INCLUSION IN THE REPORT CARD FOR EACH SCHOOL, TO PROVIDE NO SCHOOL OR SCHOOL DISTRICT MAY CHARGE A FEE FOR THE TEST, AND TO PROVIDE THAT THE REQUIREMENTS OF THIS SECTION APPLY TO ANY STUDENT ENTERING THE NINTH GRADE BEGINNING WITH THE 2016-2017 SCHOOL YEAR.
(R. 84, S. 592 (Word version)) -- Senator Campsen: AN ACT TO AMEND SECTION 50-11-710, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE HUNTING OF FERAL HOGS, COYOTES, AND ARMADILLOS AT NIGHT, SO AS TO RESTRUCTURE THE EXISTING PROVISIONS THAT REGULATE THE HUNTING OF THESE ANIMALS, AND TO PROVIDE FOR THE NIGHT HUNTING OF THESE ANIMALS BY A PERSON WITH A CENTER FIRE RIFLE USING CENTER FIRE AMMUNITION OR SUBSONIC CENTER FIRE AMMUNITION.
(R. 85, H. 3083 (Word version)) -- Reps. Huggins, Kennedy, Clary, Corley, Weeks, Whipper and Gilliard: AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO ENACT THE "SOUTH CAROLINA OVERDOSE PREVENTION ACT" BY ADDING CHAPTER 130 TO TITLE 44 SO AS TO ALLOW CERTAIN MEDICAL PROFESSIONALS TO PRESCRIBE OPIOID ANTIDOTES FOR INDIVIDUALS WHO THE MEDICAL PROFESSIONAL BELIEVES IN GOOD FAITH ARE AT RISK OF EXPERIENCING AN OPIOID OVERDOSE, TO REQUIRE MEDICAL PROFESSIONALS TO PROVIDE INSTRUCTIONAL INFORMATION TO A PERSON TO WHOM THE MEDICAL PROFESSIONAL PRESCRIBES AN OPIOID ANTIDOTE, TO ALLOW PHARMACISTS TO DISPENSE OPIOID ANTIDOTES PURSUANT TO A PRESCRIPTION, TO ALLOW CAREGIVERS AND FIRST RESPONDERS TO ADMINISTER OPIOID ANTIDOTES TO INDIVIDUALS WHO THE CAREGIVER OR FIRST RESPONDER BELIEVES IN GOOD FAITH ARE AT RISK OF EXPERIENCING AN OPIOID OVERDOSE, TO ALLOW PRESCRIBERS TO PRESCRIBE STANDING ORDERS FOR OPIOID ANTIDOTES TO FIRST RESPONDERS AND FOR FIRST RESPONDERS TO POSSESS THESE OPIOID ANTIDOTES, AND TO PROVIDE PROTECTIONS FROM CIVIL AND CRIMINAL LIABILITY FOR PRESCRIBING, DISPENSING, OR ADMINISTERING OPIOID ANTIDOTES, AND FOR OTHER PURPOSES.
(R. 86, H. 3264 (Word version)) -- Rep. Taylor: AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 137 TO CHAPTER 3, TITLE 56 SO AS TO PROVIDE FOR THE ISSUANCE OF "AMERICAN RED CROSS SPECIAL LICENSE PLATES".
(R. 87, H. 3880 (Word version)) -- Reps. Ott, Hixon, Pitts, Riley and Johnson: AN ACT TO AMEND SECTION 50-11-20, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CERTAIN TERMS AND THEIR DEFINITIONS THAT RELATE TO THE MIGRATORY WATERFOWL COMMITTEE, THE CREATION OF THE COMMITTEE, ITS MEMBERSHIP, AND RESPONSIBILITIES, SO AS TO INCREASE ITS MEMBERSHIP BY ONE WHO SHALL BE A DESIGNEE OF DELTA WATERFOWL OF SOUTH CAROLINA WHO IS NOT A PAID EMPLOYEE.
(R. 88, H. 3888 (Word version)) -- Reps. Cole, Allison, Brannon, Chumley, Forrester, Hicks, Mitchell and Tallon: AN ACT TO AMEND SECTION 7-7-490, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DESIGNATION OF VOTING PRECINCTS IN SPARTANBURG COUNTY, SO AS TO CONSOLIDATE AND RENAME CERTAIN PRECINCTS, AND TO REDESIGNATE THE MAP NUMBER ON WHICH THE NAMES OF THESE PRECINCTS MAY BE FOUND AND MAINTAINED BY THE REVENUE AND FISCAL AFFAIRS OFFICE.
(R. 89, H. 4166 (Word version)) -- Reps. Pitts and Willis: AN ACT TO AMEND ACT 779 OF 1988, AS AMENDED, RELATING TO LAURENS COUNTY SCHOOL DISTRICTS 55 AND 56, SO AS TO REAPPORTION THE SEVEN SINGLE-MEMBER ELECTION DISTRICTS FROM WHICH MEMBERS OF LAURENS COUNTY SCHOOL DISTRICT 56 MUST BE ELECTED, TO DESIGNATE A MAP NUMBER ON WHICH THESE SINGLE-MEMBER ELECTION DISTRICTS ARE DELINEATED, AND TO PROVIDE DEMOGRAPHIC INFORMATION PERTAINING TO THE REAPPORTIONED ELECTION DISTRICTS.
H. 4086 (Word version) -- Reps. Allison, Alexander, Anderson, Anthony, Atwater, Bales, Ballentine, Bamberg, Bannister, Bedingfield, Bernstein, Bingham, Bowers, Bradley, Brannon, G. A. Brown, R. L. Brown, Burns, Chumley, Clary, Clemmons, Clyburn, Cobb-Hunter, Cole, Collins, Corley, H. A. Crawford, Crosby, Daning, Delleney, Dillard, Douglas, Duckworth, Erickson, Felder, Finlay, Forrester, Funderburk, Gagnon, Gambrell, George, Gilliard, Goldfinch, Govan, Hamilton, Hardee, Hardwick, Hart, Hayes, Henderson, Henegan, Herbkersman, Hicks, Hill, Hiott, Hixon, Hodges, Horne, Hosey, Howard, Huggins, Jefferson, Johnson, Jordan, Kennedy, King, Kirby, Knight, Limehouse, Loftis, Long, Lowe, Lucas, Mack, McCoy, McEachern, McKnight, M. S. McLeod, W. J. McLeod, Merrill, Mitchell, D. C. Moss, V. S. Moss, Murphy, Nanney, Neal, Newton, Norman, Norrell, Ott, Parks, Pitts, Pope, Putnam, Quinn, Ridgeway, Riley, Rivers, Robinson-Simpson, Rutherford, Ryhal, Sandifer, Simrill, G. M. Smith, G. R. Smith, J. E. Smith, Sottile, Southard, Spires, Stavrinakis, Stringer, Tallon, Taylor, Thayer, Tinkler, Toole, Weeks, Wells, Whipper, White, Whitmire, Williams, Willis and Yow: A CONCURRENT RESOLUTION TO PROMOTE UNDERSTANDING OF THE DESTRUCTIVE EFFECTS OF IRON DISORDERS ON THE HEALTH OF OUR CITIZENS, TO ENCOURAGE MEDICAL RESEARCH AND EDUCATION TO STEM THE TIDE OF THESE DISORDERS, AND TO DECLARE THE MONTH OF JULY 2015 AS "IRON DISORDERS AWARENESS MONTH" IN THE STATE OF SOUTH CAROLINA.
At 5:13 p.m. the House, in accordance with the motion of Rep. BRADLEY, adjourned in memory of Jerry Cook Brown of Hilton Head, to meet at 10:00 a.m. tomorrow.

matches: V. V. V. V. V. V. V. V. V. V. V.


LEGAL NOTE 0121: WHAT IS THE DEGREE OF DILIGENCE REQUIRED OF BANKS?
PNB RECEIVED FOREIGN CHECKS. THE RULE REQUIRES A 15-DAY CLEARING. BUT PNB ALLOWED THE CHECKS TO BE CLEARED BEFORE THE END OF THE 15 DAY PERIOD? WHOSE FAULT IS IT?
FAULT OF PNB. PNB’S DISREGARD OF ITS PREVENTIVE AND PROTECTIVE MEASURE AGAINST THE POSSIBILITY OF BEING VICTIMIZED BY BAD CHECKS HAD BROUGHT UPON ITSELF THE INJURY OF LOSING A SIGNIFICANT AMOUNT OF MONEY.
Here, while PNB highlights Ofelia’s fault in accommodating a stranger’s check and depositing it to the bank, it remains mum in its release of the proceeds thereof without exhausting the 15-day clearing period, an act which contravened established banking rules and practice.
It is worthy of notice that the 15-day clearing period alluded to is construed as 15 banking days. As declared by Josephine Estella, the Administrative Service Officer who was the bank’s Remittance Examiner, what was unusual in the processing of the check was that the “lapse of 15 banking days was not observed.” Even PNB’s agreement with Philadelphia National Bank regarding the rules on the collection of the proceeds of US dollar checks refers to “business/ banking days.” Ofelia deposited the subject check on November 4, 1992. Hence, the 15th banking day from the date of said deposit should fall on November 25, 1992. However, what happened was that PNB Buendia Branch, upon calling up Ofelia that the check had been cleared, allowed the proceeds thereof to be withdrawn on November 17 and 18, 1992, a week before the lapse of the standard 15-day clearing period.
This Court already held that the payment of the amounts of checks without previously clearing them with the drawee bank especially so where the drawee bank is a foreign bank and the amounts involved were large is contrary to normal or ordinary banking practice. Also, in Associated Bank v. Tan, wherein the bank allowed the withdrawal of the value of a check prior to its clearing, we said that “[b]efore the check shall have been cleared for deposit, the collecting bank can only ‘assume’ at its own risk x x x that the check would be cleared and paid out.” The delay in the receipt by PNB Buendia Branch of the November 13, 1992 SWIFT message notifying it of the dishonor of the subject check is of no moment, because had PNB Buendia Branch waited for the expiration of the clearing period and had never released during that time the proceeds of the check, it would have already been duly notified of its dishonor. Clearly, PNB’s disregard of its preventive and protective measure against the possibility of being victimized by bad checks had brought upon itself the injury of losing a significant amount of money.
WHAT KIND OF DILIGENCE IS REQUIRED OF BANKS?
WHAT IS THE DUTY OF A COLLECTING BANK?
It bears stressing that “the diligence required of banks is more than that of a Roman pater familias or a good father of a family. The highest degree of diligence is expected.” PNB miserably failed to do its duty of exercising extraordinary diligence and reasonable business prudence. The disregard of its own banking policy amounts to gross negligence, which the law defines as “negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected.” With regard to collection or encashment of checks, suffice it to say that the law imposes on the collecting bank the duty to scrutinize diligently the checks deposited with it for the purpose of determining their genuineness and regularity. “The collecting bank, being primarily engaged in banking, holds itself out to the public as the expert on this field, and the law thus holds it to a high standard of conduct.” A bank is expected to be an expert in banking procedures and it has the necessary means to ascertain whether a check, local or foreign, is sufficiently funded.
PNB OBLIGES CHEA TO RETURN THE MONEY UNDER THE PRINCIPLE OF SOLUTION INDEBITI.
WHAT ARE THE REQUISITES OF SOLUTIO INDEBITI?
(B) THAT THE PAYMENT WAS MADE BY REASON OF AN ESSENTIAL MISTAKE OF FACT.
ARE SPOUSES CHEAH OBLIGATED TO RETURN THE MONEY WITHDRAWN UNDER THE PRINCIPLE OF SOLUTIO INDEBITI?
NO. IN THE FIRST PLACE, THE GROSS NEGLIGENCE OF PNBCAN NEVER BE EQUATED WITH A MERE MISTAKE OF FACT, WHICH MUST BE SOMETHING EXCUSABLE AND WHICH REQUIRES THE EXERCISE OF PRUDENCE. NO RECOVERY IS DUE IF THE MISTAKE DONE IS ONE OF GROSS NEGLIGENCE.
Art. 2154. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises.
“[T]he indispensable requisites of the juridical relation known as solutio indebiti, are, (a) that he who paid was not under obligation to do so; and (b) that the payment was made by reason of an essential mistake of fact.
In the case at bench, PNB cannot recover the proceeds of the check under the principle it invokes. In the first place, the gross negligence of PNB, as earlier discussed, can never be equated with a mere mistake of fact, which must be something excusable and which requires the exercise of prudence. No recovery is due if the mistake done is one of gross negligence.
A STRANGER GAVE THE CHEAH SPOUSES A CHECK FOR US$300,000.00. THEY WENT TO THE BANK AND DEPOSITED IT. BEFORE THE 15 DAY CLEARING PERIOD THEY WERE INFORMED BY PNB THAT THE CHECK HAS ALREADY BEEN CLEARED. THEY WENT TO THE BANK AND ENCASHED IT. ARE THEY LIABLE TO RETURN THE MONEY.
YES, BECAUSE THEY ARE GUILTY OF CONTRIBUTORY NEGLIGENCE. SPOUSES LEAH SHOULD HAVE BEEN MORE DILIGENT BECAUSE THE ONE WHO GAVE HER THE CHECK WAS A STRANGER. ALSO, WHE THE BANK CALLED HER UP AND INFORM HER THAT THE BANK WAS CLEARED BEFORE THE 15 DAY PERIOD SHE SHOULD HAVE FIRST VERIFIED THE REGULARITY OF SUCH HASTY CLEARANCE CONSIDERING THAT IF SOMETHING GOES WRONG WITH THE TRANSACTION, IT IS SHE AND HER HUSBAND WHO WOULD BE PUT AT RISK AND NOT THE ACCOMMODATED PARTY.
The CA found Ofelia’s credulousness blameworthy. We agree. Indeed, Ofelia failed to observe caution in giving her full trust in accommodating a complete stranger and this led her and her husband to be swindled. Considering that Filipina was not personally known to her and the amount of the foreign check to be encashed was $300,000.00, a higher degree of care is expected of Ofelia which she, however, failed to exercise under the circumstances. Another circumstance which should have goaded Ofelia to be more circumspect in her dealings was when a bank officer called her up to inform that the Bank of America check has already been cleared way earlier than the 15-day clearing period. The fact that the check was cleared after only eight banking days from the time it was deposited or contrary to what Garin told her that clearing takes 15 days should have already put Ofelia on guard. She should have first verified the regularity of such hasty clearance considering that if something goes wrong with the transaction, it is she and her husband who would be put at risk and not the accommodated party. However, Ofelia chose to ignore the same and instead actively participated in immediately withdrawing the proceeds of the check. Thus, we are one with the CA in ruling that Ofelia’s prior consultation with PNB officers is not enough to totally absolve her of any liability. In the first place, she should have shunned any participation in that palpably shady transaction.
In any case, the complaint against the spouses Cheah could not be dismissed. As PNB’s client, Ofelia was the one who dealt with PNB and negotiated the check such that its value was credited in her and her husband’s account. Being the ones in privity with PNB, the spouses Cheah are therefore the persons who should return to PNB the money released to them.
All told, the Court concurs with the findings of the CA that PNB and the spouses Cheah are equally negligent and should therefore equally suffer the loss. The two must both bear the consequences of their mistakes.
Law favoreth diligence, and therefore, hateth folly and negligence.—Wingate’s Maxim.
bank had dealt with a rubber check.
These consolidated Petitions for Review on Certiorari filed by the Philippine National Bank (PNB) and by the spouses Cheah Chee Chong and Ofelia Camacho Cheah (spouses Cheah) both assail the August 22, 2005 Decision and December 21, 2005 Resolutionof the Court of Appeals (CA) in CA-G.R. CV No. 63948 which declared both parties equally negligent and, hence, should equally suffer the resulting loss. For its part, PNB questions why it was declared blameworthy together with its depositors, spouses Cheah, for the amount wrongfully paid the latter, while the spouses Cheah plead that they be declared entirely faultless.
On November 4, 1992, Ofelia Cheah (Ofelia) and her friend Adelina Guarin (Adelina) were having a conversation in the latter’s office when Adelina’s friend, Filipina Tuazon (Filipina), approached her to ask if she could have Filipina’s check cleared and encashed for a service fee of 2.5%. The check is Bank of America Check No. 190 under the account of Alejandria Pineda and Eduardo Rosales and drawn by Atty. Eduardo Rosales against Bank of America Alhambra Branch inCalifornia,USA, with a face amount of $300,000.00, payable to cash. Because Adelina does not have a dollar account in which to deposit the check, she asked Ofelia if she could accommodate Filipina’s request since she has a joint dollar savings account with her Malaysian husband Cheah Chee Chong (Chee Chong) under Account No. 265-705612-2 with PNB Buendia Branch.
That same day, Ofelia and Adelina went to PNB Buendia Branch. They met with Perfecto Mendiola of the Loans Department who referred them to PNB Division Chief Alberto Garin (Garin). Garin discussed with them the process of clearing the subject check and they were told that it normally takes 15 days. Assured that the deposit and subsequent clearance of the check is a normal transaction, Ofelia deposited Filipina’s check. PNB then sent it for clearing through its correspondent bank, Philadelphia National Bank. Five days later, PNB received a credit advice from Philadelphia National Bank that the proceeds of the subject check had been temporarily credited to PNB’s account as of November 6, 1992. On November 16, 1992, Garin called up Ofelia to inform her that the check had already been cleared. The following day, PNB Buendia Branch, after deducting the bank charges, credited $299,248.37 to the account of the spouses Cheah. Acting on Adelina’s instruction to withdraw the credited amount, Ofelia that day personally withdrew $180,000.00. Adelina was able to withdraw the remaining amount the next day after having been authorized by Ofelia. Filipina received all the proceeds.
In the meantime, the Cable Division of PNB Head Office in Escolta, Manila received on November 16, 1992 a SWIFT message from Philadelphia National Bank dated November 13, 1992 with Transaction Reference Number (TRN) 46506218, informing PNB of the return of the subject check for insufficient funds. However, the PNB Head Office could not ascertain to which branch/office it should forward the same for proper action. Eventually, PNB Head Office sent Philadelphia National Bank a SWIFT message informing the latter that SWIFT message with TRN 46506218 has been relayed to PNB’s various divisions/departments but was returned to PNB Head Office as it seemed misrouted. PNB Head Office thus requested for Philadelphia National Bank’s advice on said SWIFT message’s proper disposition. After a few days, PNB Head Office ascertained that the SWIFT message was intended for PNB Buendia Branch.
PNB Buendia Branch learned about the bounced check when it received on November 20, 1992 a debit advice, followed by a letter on November 24, 1992, from Philadelphia National Bank to which the November 13, 1992 SWIFT message was attached. Informed about the bounced check and upon demand by PNB Buendia Branch to return the money withdrawn, Ofelia immediately contacted Filipina to get the money back. But the latter told her that all the money had already been given to several people who asked for the check’s encashment. In their effort to recover the money, spouses Cheah then sought the help of the National Bureau of Investigation. Said agency’s Anti-Fraud and Action Division was later able to apprehend some of the beneficiaries of the proceeds of the check and recover from them $20,000.00. Criminal charges were then filed against these suspect beneficiaries.
Meanwhile, the spouses Cheah have been constantly meeting with the bank officials to discuss matters regarding the incident and the recovery of the value of the check while the cases against the alleged perpetrators remain pending. Chee Chong in the end signed a PNB drafted letter which states that the spouses Cheah are offering their condominium units as collaterals for the amount withdrawn. Under this setup, the amount withdrawn would be treated as a loan account with deferred interest while the spouses try to recover the money from those who defrauded them. Apparently, Chee Chong signed the letter after the Vice President and Manager of PNB Buendia Branch, Erwin Asperilla (Asperilla), asked the spouses Cheah to help him and the other bank officers as they were in danger of losing their jobs because of the incident. Asperilla likewise assured the spouses Cheah that the letter was a mere formality and that the mortgage will be disregarded once PNB receives its claim for indemnity from Philadelphia National Bank.
Although some of the officers of PNB were amenable to the proposal, the same did not materialize. Subsequently, PNB sent a demand letter to spouses Cheah for the return of the amount of the check, froze their peso and dollar deposits in the amounts of P275,166.80 and $893.46, and filed a complaint against them for Sum of Money with Branch 50 of the Regional Trial Court (RTC) of Manila, docketed as Civil Case No. 94-71022. In said complaint, PNB demanded payment of around P8,202,220.44, plus interests and attorney’s fees, from the spouses Cheah.
without waiting for the 15-day clearing period, in violation of its bank practice as mandated by its own bank circular, i.e., PNB General Circular No. 52-101/88. Because of this, spouses Cheah averred that PNB is barred from claiming what it had lost. They further averred that it is unjust for them to pay back the amount disbursed as they never really benefited therefrom. As counterclaim, they prayed for the return of their frozen deposits, the recoupment of P400,000.00 representing the amount they had so far spent in recovering the value of the check, and payment of moral and exemplary damages, as well as attorney’s fees.
of US$298,950.25 or its peso equivalent based on Central Bank Exchange Rate prevailing at the time the proceeds of the BA Check No. 190 were withdrawn or the prevailing Central Bank Rate at the time the amount is to be reimbursed by the defendants to plaintiff or whatever is lower. This is without prejudice however, to the rights of the defendants (accommodating parties) to go against the group of Adelina Guarin, Atty. Eduardo Rosales, Filipina Tuazon, etc., (Beneficiaries- accommodated parties) who are privy to the defendants.
No other award of damages for non[e] has been proven.
The RTC held that spouses Cheah were guilty of contributory negligence.
Because Ofelia trusted a friend’s friend whom she did not know and considering the amount of the check made payable to cash, the RTC opined that Ofelia showed lack of vigilance in her dealings. She should have exercised due care by investigating the negotiability of the check and the identity of the drawer. While the court found that the proximate cause of the wrongful payment of the check was PNB’s negligence in not observing the 15-day guarantee period rule, it ruled that spouses Cheah still cannot escape liability to reimburse PNB the value of the check as an accommodation party pursuant to Section 29 of the Negotiable Instruments Law. It likewise applied the principle of solutio indebiti under the Civil Code. With regard to the award of other forms of damages, the RTC held that each party must suffer the consequences of their own acts and thus left both parties as they are.
Unwilling to accept the judgment, the spouses Cheah appealed to the CA.
As both parties were equally negligent, it is but right and just that both parties should equally suffer and shoulder the loss. The scam would not have been possible without the negligence of both parties. As earlier stated, the complaint of PNB cannot be dismissed because the Cheah spouses were negligent and Ms. Cheah took an active part in the deposit of the check and the withdrawal of the subject amounts. On the other hand, the Cheah spouses cannot entirely bear the loss because PNB allowed her to withdraw without waiting for the clearance of the check. The remedy of the parties is to go after those who perpetrated, and benefited from, the scam.
WHEREFORE, the May 20, 1999 Decision of the Regional Trial Court, Branch 5,Manila, in Civil Case No. 94-71022, is hereby REVERSED and SET ASIDE and another one entered DECLARING both parties equally negligent and should suffer and shoulder the loss.
Accordingly, PNB is hereby ordered to credit to the peso and dollar accounts of the Cheah spouses the amount due to them.
In so ruling, the CA ratiocinated that PNB Buendia Branch’s non-receipt of the SWIFT message from Philadelphia National Bank within the 15-day clearing period is not an acceptable excuse. Applying the last clear chance doctrine, the CA held that PNB had the last clear opportunity to avoid the impending loss of the money and yet, it glaringly exhibited its negligence in allowing the withdrawal of funds without exhausting the 15-day clearing period which has always been a standard banking practice as testified to by PNB’s own officers, and as provided in its own General Circular No. 52/101/88. To the CA, PNB cannot claim from spouses Cheah even if the latter are accommodation parties under the law as the bank’s own negligence is the proximate cause of the damage it sustained. Nevertheless, it also found Ofelia guilty of contributory negligence. Thus, both parties should be made equally responsible for the resulting loss.
Both parties filed their respective Motions for Reconsideration but same were denied in a Resolution dated December 21, 2005.
Hence, these Petitions for Review on Certiorari.
The petitions for review lack merit. Hence, we affirm the ruling of the CA.
PNB’s act of releasing the proceeds of the check prior to the lapse of the 15-day clearing period was the proximate cause of the loss.
WHEREFORE, premises considered, the Petitions for Review on Certiorari in G.R. No. 170865 and in G.R. No. 170892 are both DENIED. The assailed August 22, 2005 Decision and December 21, 2005 Resolution of the Court of Appeals in CA-G.R. CV No. 63948 are hereby AFFIRMED in toto.
 TSN,July 5, 1995, p. 26.
 Banco Atlantico v. Auditor General, 171 Phil. 298, 304 (1978).
 487 Phil. 512, 525 (2004).
 Philippine Savings Bank v. Chowking Food Corporation, G.R. No. 177526, July 4, 2008, 557 SCRA 318, 330, citing Bank of the Philippine Islands v. Court of Appeals, 383 Phil. 538, 554 (2000); Philippine Bank of Commerce v. Court of Appeals, 336 Phil. 667, 681 (1997) and Philippine Commercial International Bank v. Court of Appeals, 403 Phil. 361, 388 (2001).
 Metropolitan Bank and Trust Company v. Philippine Bank of Communications, G.R. Nos. 141408 and 141429, October 18, 2007, 536 SCRA 556, 563, citing Banco de Oro Savings and Mortgage Bank v. Equitable Banking Corporation, 241 Phil. 187, 200 (1988).
 Victoriano v. People, G.R. Nos. 171322-24, November 30, 2006, 509 SCRA 483, 493, citing Fonacier v. Sandiganbayan, G.R. Nos. 50691, 52263, 52766, 52821, 53350, 53397, 53415 and 53520, December 5, 1994, 238 SCRA 655, 687-688.
 City of Cebu v. Judge Piccio, 110 Phil. 558, 563 (1960).
 N.B. Solutio indebiti also covers mistake in law under Article 2155 of the Civil Code.
 Valenzuela v. Court of Appeals, 323 Phil. 374, 388 (1996).
 Consolidated pursuant to our Resolution dated April 26, 2006, rollo (G.R. No. 170865), p. 392 and rollo (G.R. No. 170892), p. 95.
 Docketed as G.R. No. 170865, rollo, pp. 105-129.
 Docketed as G.R. No. 170892, id. at 11-39.
 CA rollo, pp. 172-188; penned by Associate Justice Jose Catral Mendoza (now a member of this Court) and concurred in by Presiding Justice Romeo A. Brawner and Associate Justice Mario L. Guariña III.
 Id. at 261; penned by Associate Justice Jose Catral Mendoza and concurred in by Associate Justices Mario L. Guariña III and Celia C. Librea-Leagogo.
 TSN,July 3, 1998, pp. 14-17.
 TSN,July 3, 1998, pp. 18-19;July 24, 1998, pp. 32-33.
 Records, pp. 201 and 425.
 Stands for ‘Society for Worldwide Interbank Financial Telecommunication.’ It is an international transaction processing system owned by and serving the financial community worldwide. It handles financial messages such as: a. customer transfers or payment orders; b. bank transfers; c. foreign exchange confirmation; d. debit confirmation; e. credit confirmation; f. statement of account; g. collections; h. documentary credits; i. syndications; j. traveler’s checks; See Joint Affidavit of Gregorio SC Termulo and Leoncio M. David, Assistant Department Manager II and Division Chief III of the Cable Division, International Department of PNB, id. at 312-315.
 Based on the records of the case at bar, upon the NBI’s investigation, the withdrawn money was divided among Transmedian Management (Adelina Guarin’s office), Nilo Montalban, Patricio Valleser, and Lucresio Semblante, who all received a part of the proceeds as commissions, while the rest of the amount was divided between Felix Sajot and Eduardo Rosales, id. at 276-277. The NBI, suspecting a conspiracy among the bank officers and the beneficiaries, filed an estafa case against Adelina Guarin and PNB officials Lorenzo Bal, Ponciano Felix, Teresita Gregorio, and Domingo Posadas before the Office of the Ombudsman, but this was dismissed, id. at 402-407. Criminal case for estafa was likewise filed by the Makati Prosecutor against Filipina Tuazon, Nilo Montalban, Patricio Vallaser, Lucresio Semblante, Eduardo Rosales and Felix Sajot before the Regional Trial Court of Makati, id. at 426-427.
 TSN,July 3, 1998, pp. 43-48;July 24, 1998, p. 9.
 Under Account Nos. 265-560184-0 and 265-705612-2.
 Converted to peso at a rate of $1 = P27.695. The amount recovered was deducted from the $300,000, then computed at an interest rate of 7.5% per annum.
The existing cash letter services of our foreign correspondents [sic] bank make it possible for PNB to obtain immediate credit, subject to final payment for US dollar denominated checks withdrawn on banks in theU.S.A.negotiated with us by clients. The guarantee period ‘and’ notice of non-payment by telex features under such clearing item is made known to PNB within 15 days from date of receipts of checks by our collecting agent bank. Records, p. 525 as incorporated in the RTC Decision, p. 20.
 Id. at 506-541; penned by Judge Urbano Victorio, Sr.
 See PNB’s Motion for Reconsideration, id. at 194-207 and the spouses Cheah’s Motion for Reconsideration, id. at 208-231.
 Allied Banking Corporation v. Lim Sio Wan, G.R. No. 133179,March 27, 2008, 549 SCRA 504, 518.


text:
HEM RAJ Vs. URMILA DEVI & ORS.
Contested proceedings in Civil Court for restitution of conjugal rights — Court coming to a conclusion that wife had no just or reasonable cause to withdraw her society from husband — No subsequent event justifying her staying away — Not entitled to maintenance u/Section 125, Cr. P.C.
The respondents herein filed a petition under Section 125 of the Code of Criminal Procedure on 25.2.1993 on the file of the Additional Chief Judicial Magistrate, Hamirpur for maintenance. The first respondent is the wife of the petitioner and respondent Nos. 2 to 4 are the children born out of the wedlock. The allegation of the 1st respondent was that her husband, petitioner herein had neglected and refused to maintain the respondents without any lawful excuse despite having sufficient means of income, whereas according to her she had no source of income to maintain herself and the children. The Additional Chief Judicial Magistrate found that the 1st respondent had no valid excuse to be away from the husband and as such she is not entitled to maintenance from him. However, he proceeded to grant maintenance in favour of the three children @ Rs. 250/- per month. The petitioner did not challenge that order as he was willing to pay maintenance to the children. The first respondent challengd the order by filing Criminal Revision No. 1 of 1996 on the file of the Sessions Judge, Hamirpur. The Sessions Judge has reversed the order of the Additional Chief Judicial Magistrate in so far as it related to the maintenance claimed by the 1st respondent herein. Consequently, she directed the petitioner herein to pay a sum of Rs. 200/- per month by way of maintenance to the 1st respondent, from the date of the decision of the Trial Court i.e. 18.11.1995.
2. The aggrieved husband has preferred this revision petition during the pendency of the proceeding before the Additional Chief Judicial Magistrate. The petitioner herein had filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights on the file of the Senior Sub-Judge, Hamirpur. That proceeding was instituted on 17.4.1993 and after contest, it was disposed of on 30.6.1995. The Civil Court found that the 1st respondent had no reasonable or just cause for withdrawing herself from the society of the petitioner herein. Consequently, the Senior Sub-Judge passed a decree for restitution of conjugal rights, as prayed for by the petitioner herein. Admittedly, that decree has become final as it has not been challenged by way of appeal by the 1st respondent. It is recorded in die judgment of the Civil Court in paragraph 8 that the 1st respondent had stated before the Court that she was ready to accompany the husband, but she contested the proceedings and a decree has been passed for restitution of conjugal rights.
3. In this revision petition, learned Counsel for the petitioner contends that once the Civil Court has gone into the matter and given findings that the 1st respondent had no reasonable or just cause for withdrawing herself from the society of the husband, then the Criminal Court cannot grant maintenance in her favour on the footing that the husband had neglected or refused to maintain her. The order of the Civil Court was marked as Ex. RX before the Additional Chief Judicial Magistrate. The Revisional Court while referring to the said order held that inspite of the order for restitution of conjugal rights, it is open to the Criminal Court to consider the claim of maintenance and grant the same. The Revisional Court has also taken into account a circumstance that maintenance was being paid by an order passed by the Army Authorities at a time, when the petitioner herein was serving in the Army on a representation made by the 1st respondent herein. It is not in dispute that the petitioner herein was making payments from 1989 by virtue of the said order of maintenance passed by the Army Authorities.
4. The contention of learned Counsel for the petitioner is that the order passed by the Civil Court having become final, the 1st respondent cannot claim maintenance under Section 125 of the Code of Criminal Procedure. It is also contended by him that the factum of payment of maintenance when the petitioner was in the Army service will not enable the 1st respondent to continue the claim of maintenance under Section 125 of the Code of Criminal Procedure, inspite of there being an order for restitution of conjugal rights. In support of his contention, he has referred to certain authorities. On the other hand, learned Counsel for the respondent has contended that the mere fact that there is a decree for restitution of conjugal rights will not prevent the 1st respondent from claiming separate maintenance. He has referred to certain authorities in support of his contention. He has also made a reference to certain statement made in the course of evidence of one of the witnesses before the Civil Court to the effect that the petitioner is having some illicit relationship with some third party. Such contention is not available to the 1st respondent in this proceeding as even the Civil Court found that the same was not established at all. Neither there was any pleading in that proceeding nor is there any such pleading in the present proceeding. Reliance is also placed by learned Counsel of the respondents on the payment made by the husband from 1989 pursuant to the order of the Army authorities.
5. Insofar as the payment of maintenance made when the petitioner was in Army service is concerned, that cannot give rise to a claim of maintenance by the 1st respondent. It is not open to her to claim maintenance under Section 125 of the Code of Criminal Procedure excepting on the proved fact that the petitioner herein has neglected or refused to maintain her. It is only when the Court is satisfied that there is neglect or refusal to maintain on the part of the petitioner that maintenance can be granted under Section 125 of the Code of Criminal Procedure.
6. The view taken by different Courts on the question as to the effect of a decree for restitution of conjugal rights is not uniform. Before referring to that, it is necessary to point out the effect of the decree passed by a Civil Court in a matter over which it has competence.
That proposition shall be kept in mind where an approach is made to the question on hand. Section 125 of the Code of Criminal Procedure begins with the words “If any person having sufficient means neglects or refuses to maintain”. Hence, it is the duty of the Criminal Court to find out whether the person who is liable to maintain has sufficient means and has neglected or refused to maintain. Unless there is a finding that he has refused or neglected to maintain, there is no question of granting maintenance under that section.
8. Section 9 of the Hindu Marriage Act provides for restitution of conjugal rights. The opening words of the section are “when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, aggrieved party may apply.” When a Civil Court has considered the matter after contest by both the parties and come to a conclusion that wife has without reasonable excuse withdrawn from the society of the husband, it is not open to the Criminal Court to come to a conclusion that the husband has neglected or refused to maintain her. Once there is a decree for restitution of conjugal rights, it is the duty of the wife to obey the same and she cannot refuse to abide by the same and make a complaint that the husband has refused to maintain her.
9. In Gopala Pillai v. Padmini Amma, 1978 KLT 485, a decree for restitution of conjugal rights was passed. Thereafter, the husband filed a petition for dissolution of marriage as the wife was not willing to abide by the decree for restitution of conjugal rights. That petition for dissolution of marriage was allowed and only thereafter the petition for maintenance under Section 125 of the Code of Criminal Procedure was filed by the wife. In such situation, the Court held that the order for restitution of conjugal rights was not a ground for the refusal of maintenance under Section 125 of the Code of Criminal Procedure.
10. In K. Narayan Rao v. Bhagyalakshmi, 1984 Cr.LJ 276, the Karnataka High Court had to consider as similar question. It was found on the facts of the case that the wife did not have sufficient opportunity to contest the proceeding for restitution of conjugal rights. She was living far away from the place where the petition was instituted. She did not have adequate means even to contest the proceeding. In such situation, the Court held that the husband obtaining an order of restitution of conjugal rights will not prevent the wife from instituting the proceeding under Section 125 of the Code of Criminal Procedure.
11. In Smt. Radha @ Billo v. Ram Ditta, 1984 MLJ 392, the High Court of Punjab and Haryana held that a decree for restitution of conjugal rights obtained by the husband against the wife and the finding that the wife was living away from the husband without reasonable excuse was binding on the Criminal Court and that as the decree had become final, her claim for maintenance under Section 125 of the Code of Criminal Procedure was not sustainable.
12. In Girishbhai Babuhhai Raja v. Hansaben Girishchandra & Anr., 1986 (1) Guj.LR 630, the learned Judge of the Gujarat High Court had after placing reliance on the judgment of the Supreme Court in Captain Ramesh Grander’s case, AIR 1978 SC 1807, held that the decree passed by the Civil Court was binding on the Criminal Court and the same issue could not be tried once again by the Magistrate under Section 125 of the Code of Criminal Procedure. The Court held that in view of the decree for restitution of conjugal rights, the wife was not entitled to claim maintenance under the provisions of Criminal Procedure Code.
13. In Smt. Mahtab Begum v. Ansar Ahmad, 1986 (2) All.LJ 1096, the Allahabad High Court held that the claim for maintenance under Section 125 of the Code of Criminal Procedure has for its premise neglect or refusal of the spouse to maintain her. Under the proviso to Sub-Section (2), if he offers to maintain his wife on condition of her living with him and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by her and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Thus, from the evidence, if the claim of the husband for restitution had succeeded, it was certainly binding on the wife and she was not entitled to claim maintenance under Section 125 of the Code of Criminal Procedure.
14. In Babulal v. Sunita, 1987 Cr.LJ 525, the learned Judge of the Madhya Pradesh High Court held that Section 125 of the Code of Criminal Procedure should be given liberal construction and in the absence of any statutory bar the wife’s application cannot be rejected merely because the husband has obtained a decree for restitution of conjugal rights against her and she declines to comply with it. On the facts, it is found by the learned Judge that the decree for restitution of conjugal rights passed against the wife was obtained ex-parte and she could not contest the suit, as she was confined to bed and was hospitalised during that period. In such circumstances, the Court held that the ex-parte decree obtained by the husband should not be allowed to come in the way of the wife claiming maintenance.
15. In Mohd. Shakeel v. Smt. Shaeehna Parveen & Ors., 1987 Cr.LJ 1509, the Delhi High Court had to consider a similar case of claim for maintenance under Section 125 of the Code of Criminal Procedure, where a decree had been obtained for restitution of conjugal rights. But it is seen from the report that the judgment o f the Civil Court granting restitution of conjugal rights was under appeal and the matter was at that time pending. The Court said that unless and until the final verdict was given, the husband cannot deprive the wife of her maintenance as ordered by the lower Courts in that case. Hence, the ruling has no relevance in the present case.
16. In Maddina Subbamma v. Maddina Venkateswarlu & State, 1993 (1) SLJ 92, a Single Judge of the Andhra Pradesh High Court held that a decree for restitution of conjugal rights is not an absolute bar to the consideration of a petition under Section 125 of the Criminal Procedure Code. Referring to certain rulings of other High Courts, the learned Judge held that though there was a decree for restitution of conjugal rights, the wife had justifiable grounds to stay away from the husband and in such circumstances, maintenance could be granted to her. It was found that on the facts that the wife had sufficient reasons to be away from the husband as there was no security to her life in the hands of the husband. The ruling depend upon the facts of the case.
17. On a consideration of the aforesaid rulings, I have no hesitation to hold that once a Civil Court has found in a contested proceeding on the basis of evidence that the wife had no just or reasonable cause to withdraw her society from the husband, she cannot claim maintenance under Section 125 of the Code of Criminal Procedure. It is not as if she had pleaded any subsequent event or circumstance, which justified her to stay away from her husband inspite of the decree for restitution of conjugal rights having been passed against her.
18. The provisions of Section 127(2) of the Code of Criminal Procedure also show that the Magistrate is bound to give effect to an order of a competent Civil Court and vary or cancel the order for maintenance made under Section 125 of the Code of Criminal Procedure.
19. It follows that the order passed by the Sessions Judge in the revision petition granting maintenance to the 1st respondent is unsustainable and the said order is set aside. This revision petition is allowed accordingly. There will be no order as to costs.
Sir read some of the 125 case details. Same is experienced by me today where my wife has wilfully gone back to her parents in just 3 months without any valid reason and has now filed a case of 125 for interim and final maintenance till she files a case for divorce and also asking hefty alimony. How to get rid of this situation. Can you please guide me.

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