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South Carolina
JUDICIAL DEPARTMENT
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Advisory Opinions
ADVISORY COMMITTEE
ON STANDARDS OF JUDICIAL CONDUCT
OPINION OPINION NO. 15 - 2003

RE:  Propriety of a special referee receiving commission on the sale of foreclosed property.

FACTS

A judge inquires into the propriety of a special referee receiving a percentage commission for handling a foreclosure sale.

CONCLUSION

A special referee may receive a percentage commission for handling a foreclosure sale.

OPINION

This Committee previously addressed this issue in Advisory Opinion 25-2003 and concluded that a special referee was not permitted to receive a percentage commission for handling a foreclosure sale. Advisory Opinion 25-2003. This decision was partially based on Advisory Opinion 6-2000 which stated that a master-in-equity was not permitted to receive a percentage commission for handling foreclosure sales. Advisory Opinion 6-2000. Advisory Opinion 6-2000 and concluded that "[a] master-in-equity must not receive sales commission for handling a foreclosure sale; the commission must be deposited into the general fund of the County." Advisory Opinion, 6-2000. As noted in that Opinion, a masters-in-equity shall collect the following fees which must be deposited in the general fund of the county:

(1) in actions for partitions, foreclosure of liens upon real property, or sales of real property, either in private or by auction, a fee of one hundred dollars. If the matter requires more than one day of hearing, there is a thirty-five dollar charge for each additional day or portion of the day until the matter is concluded.

(3) on sales of land, a fee equal to one percent of the bid or of the funds passing through the court, whichever is greater. The minimum commission collectible under this item is twenty-five dollars, and the maximum commission is two thousand, five hundred dollars;

S.C. Code Ann. §14-11-310(3) (1999).

Sales by referees are addressed in South Carolina Code §15-39-635. SC Code Ann. § 15-39-635 (Supp. 2002). It states, in pertinent part: "The provisions of law governing these sales by masters also apply to referees acting pursuant to this section." SC Code Ann. § 15-39-635. However, the Committee has reviewed this matter further and is now of the opinion that special referees should be permitted to receive a percentage commission for handling foreclosure sales. This opinion does not affect the Committee's view that masters-in-equity are not permitted to receive percentage commissions on foreclosure sales, nor does it affect the Committee's view that special referees are not permitted to receive percentage commissions in other areas. This opinion applies exclusively to special referees and their handling of foreclosure sales.

Therefore, a special referee may receive a percentage commission for handling a foreclosure sale.

A. CAMDEN LEWIS, CHAIRMAN
JAMES A. SPRUILL, III
HOWARD P. KING

February ___, 2004