Wachesaw Plantation E. Cmty. Servs. Ass'n, Inc. v. Alexander

• Decision Date: 28 June 2017
• Docket Number: Opinion No. Op. 5494,Appellate Case No. 2011-198986
• Citation: 802 S.E.2d 635,420 S.C. 251
• Parties: WACHESAW PLANTATION EAST COMMUNITY SERVICES ASSOCIATION, INC., Respondent, v. Todd C. ALEXANDER, Appellant.
• Court: South Carolina Court of Appeals

420 S.C. 251

802 S.E.2d 635

WACHESAW PLANTATION EAST COMMUNITY SERVICES ASSOCIATION, INC., Respondent,

v.Todd C. ALEXANDER, Appellant.

Appellate Case No. 2011-198986

Opinion No. Op. 5494

Court of Appeals of South Carolina.

Heard May 11, 2017

Filed June 28, 2017

Charles T. Smith, of Georgetown, for Appellant.

Stephanie Carol Trotter, of McCabe, Trotter & Beverly, P.C., of Columbia, for Respondent Wachesaw Plantation East Community Services Association, Inc.

Jack M. Scoville, Jr., of Jack M. Scoville, Jr., P.A., of Georgetown, for Respondent William George.

GEATHERS, J.:

In this lien foreclosure action filed by Respondent Wachesaw Plantation East Community Services Association, Inc. (the Association), Appellant Todd C. Alexander (Homeowner) seeks review of an order of the Master-in-Equity denying his motion to vacate the judicial sale of his property. Homeowner argues (1) the master erred in denying the motion to vacate because the sale price was inadequate and was accompanied by other circumstances warranting the interference of the court, namely, Homeowner's health problems and his lack of prior knowledge of the judicial sale; (2) the sale constituted a forfeiture of Homeowner's property because the sale was involuntary and resulted in a price that was $135,000 less than the property's tax valuation; (3) the third-party bidder, Respondent William George (Bidder), was unjustly enriched because Homeowner was unable to attend the sale; and (4) Homeowner had an equitable right to redeem his property up to the time Bidder complied with the bid and received the deed to the property. We affirm.

I. Circumstances Warranting Interference

Homeowner first argues that the inadequacy of the sale price combined with his health problems and his lack of prior knowledge of the sale warranted setting it aside. We disagree.

"[T]he determination of whether a judicial sale should be set aside is a matter left to the sound discretion of the trial court." Wells Fargo Bank, NA v. Turner , 378 S.C. 147, 150, 662 S.E.2d 424, 425 (Ct. App. 2008). "An abuse of discretion occurs when the judgment is controlled by some error of law or when the order, based upon factual, as distinguished from legal conclusions, is without evidentiary support." Regions Bank v. Owens , 402 S.C. 642, 647, 741 S.E.2d 51, 54 (Ct. App. 2013). This standard of review "merely represents the appellate courts' effort to incorporate the two sound principles underlying the proper review of an equity case."¹ Crossland v. Crossland , 408 S.C. 443, 452, 759 S.E.2d 419, 423–24 (2014) (quoting Lewis v. Lewis , 392 S.C. 381, 391, 709 S.E.2d 650, 655 (2011) ). "[T]hose two principles are the superior position of the trial [court] to determine credibility and the imposition of a burden on an appellant to satisfy the appellate court that the preponderance of the evidence is against the finding of the trial court." Id. at 452, 759 S.E.2d at 424 (first alteration in original) (quoting Lewis , 392 S.C. at 391, 709 S.E.2d at 655 ).

"Our courts zealously insure judicial sales be openly and freely conducted and nothing be allowed to chill the bidding." E. Sav. Bank, FSB v. Sanders , 373 S.C. 349, 355, 644 S.E.2d 802, 805–06 (Ct. App. 2007). However, "[a] judicial sale will be set aside when either: (1) the sale price ‘is so gross as to shock the conscience[;]’ or (2) the sale ‘is accompanied by other circumstances warranting the interference of the court.’ " Wells Fargo , 378 S.C. at 150, 662 S.E.2d at 425 (second alteration in original) (quoting Poole v. Jefferson Standard Life Ins. Co. , 174 S.C. 150, 157, 177 S.E. 24, 27 (1934) ).

As has been said time and again in cases involving the setting aside of judicial sales, it is the policy of the [c]ourts to uphold such sales when regularly made, and when it can be done without violating principle or doing injustice; and that mere inadequacy of price, unaccompanied by other circumstances [that] would invoke the exercise of the [c]ourt's discretion is not sufficient, unless, perhaps, it is so great as to raise a presumption of fraud or to shock the conscience of the [c]ourt.

Henry v. Blakely , 216 S.C. 13, 18, 56 S.E.2d 581, 583 (1949).

Here, Homeowner does not argue that the sale price shocks the conscience. Rather, he asserts (1) the price of $181,000 is inadequate because the fair market value of the property is $316,800 and (2) he did not know about the foreclosure hearing, the foreclosure judgment, or the judicial sale until the day after the sale. He maintains his lack of knowledge of these events constitutes excusable neglect. See Wells Fargo , 378 S.C. at 152 n.1, 662 S.E.2d at 426 n.1 (explaining a party seeking to set aside a judicial sale on the ground that the price at which the property was sold was merely inadequate, rather than shocking to the conscience, must show excusable neglect). Homeowner also implies that his health difficulties, including multiple hospitalizations, prevented him from responding to either the Association's imposition of assessments or this action.

Specifically, Homeowner argues he did not know this action had been referred to the master or that a hearing had been scheduled because the Order of Default and notice of the foreclosure hearing were mailed to his post office box. However, he does not indicate that the post office box was no longer a valid address or that he ever sent a change of address notification to the Association after having accepted service of the Summons and Complaint sent to his post office box.

Homeowner also asserts he was not properly served with notice of the foreclosure judgment or notice of the judicial sale. He points to the lack of an address for him on the Form 4 judgment. However, such an omission is not conclusive as to whether Homeowner was served. In this particular case, the Form 4 judgment lists the address for the Association's attorney, and all previous documents related to this action had been sent to Homeowner by the Association's attorney rather than the master.

Further, "[t]here is no requirement of law that parties to a suit for foreclosure be given personal notice of a judicial sale." Peoples Fed. Sav. & Loan Ass'n v. Graham , 291 S.C. 178, 182, 352 S.E.2d 511, 514 (Ct. App. 1987). Graham involved a mortgage foreclosure naming as defendants two judgment lienholders in addition to the mortgagors. Id. at 179, 352 S.E.2d at 512. The lienholders asserted prejudice from their lack of personal notice of the judicial sale "so they could attend and bid in the protection of their judgments." Id. at 182, 352 S.E.2d at 514. This court noted the lienholders did not dispute that the legal requirements "for public notice of the judicial sale were met." Id. Likewise, in the present case, Homeowner does not dispute that public notice of the sale was properly given.

In any event, in his Memorandum in Support of Motion to Vacate Sale, Homeowner essentially admits that the foreclosure judgment and notice of the judicial sale were delivered to his post office box and that he simply did not check his post office box until the day after the sale: "[Homeowner] did not know that a foreclosure decree or a notice of sale had been issued until the day after the sale when the notices were brought to his hospital room ." (emphasis added). Homeowner's affidavit explains that the day after the sale, his property manager notified him that a stranger who claimed he was working for the "new owner" of the house changed the locks on the house. Homeowner contacted an assistant "who had periodically collected [his] mail at the post office," and the assistant "brought the unopened letters to [his] hospital room." Therefore, it is reasonable to infer that the foreclosure judgment and notice of sale were among the uncollected mail items sitting in Homeowner's post office box prior to the date of the sale.

Additionally, while we sympathize with Homeowner's health difficulties, he has not carried his burden of convincing this court that his health difficulties, by themselves, constituted excusable neglect. See Crossland , 408 S.C. at 452, 759 S.E.2d at 424 (citing one of the principles underlying the proper review of an equity case as "the imposition of a burden on an appellant to satisfy the appellate court that the preponderance of the evidence is against the finding of the trial court" (quoting Lewis , 392 S.C. at 391, 709 S.E.2d at 655 )). Homeowner has admitted his disease allowed for periodic stable periods, and his affidavit indicates he was not hospitalized at the time he was served with the Summons and Complaint, the Order of Default, the Notice of Hearing, or the Master's Report and Judgment of Foreclosure and Sale. Further, although Homeowner was in the hospital on the day of the judicial sale, he does not indicate that he was unable to send an agent to the sale to bid for him. Moreover, in his brief and in his Memorandum in Support of Motion to Vacate Sale, Homeowner essentially admits he was able to instruct his attorney to make a last-minute offer to the Association despite his medical condition. Therefore, the record as a whole indicates Homeowner had the ability to effectively participate in this action, either directly or through an agent, despite his health difficulties.

Based on the foregoing, Homeowner has failed to show that the master abused his discretion in declining to set aside the judicial sale. See Wells Fargo , 378 S.C. at 150, 662 S.E.2d at 425 ("[T]he determination of whether a judicial sale should be set aside is a matter left to the sound discretion of the trial court.").

II. Forfeiture and Unjust Enrichment

These issues are not preserved for appellate review because the master did not rule on them and Homeowner did not file a Rule 59(e) motion seeking rulings on these issues. See West v. Newberry Elec. Co - op. , 357 S.C. 537, 543, 593 S.E.2d 500, 503 (Ct. App. 2004) (holding an issue that was neither addressed by the trial court in the final order nor raised in a Rule 59(e),...