Blackmon v. Patel, 1545

• Decision Date: 20 August 1990
• Docket Number: No. 1545,1545
• Citation: 396 S.E.2d 128,302 S.C. 361
• Court: South Carolina Court of Appeals
• Parties: David Wellings BLACKMON, Respondent, v. Ramlal Vallabhbhai PATEL and Rux Mani Ramlal Patel, Appellants, and Third-Party Plaintiffs, v. Jivanbhai Bhulabhai PATEL, Bhula Lallu Bhakta, Luxmi Bhula Bhakta, Satish Bhula Bhakta and Bavna Satish Bhakta, Third-Party Defendants. . Heard

Page 128

396 S.E.2d 128

302 S.C. 361

David Wellings BLACKMON, Respondent, v. Ramlal Vallabhbhai PATEL and Rux Mani Ramlal Patel, Appellants, and Third-Party Plaintiffs, v. Jivanbhai Bhulabhai PATEL, Bhula Lallu Bhakta, Luxmi Bhula

Bhakta, Satish Bhula Bhakta and Bavna Satish

Bhakta, Third-Party Defendants.

No. 1545.

Court of Appeals of South Carolina.

Heard Aug. 20, 1990.

Decided Sept. 17, 1990.

Edmund H. Robinson, Charleston, for appellants.

Benjamin Goldberg, Charleston, and Reese I. Joye, North Charleston, for respondents.

LITTLEJOHN, Judge:

This action was brought by David Wellings Blackmon, Plaintiff, (Seller) to secure a judgment on a purchase money note against Defendants Ramlal Vallabhbhai Patel and Rux Mani Ramlal Patel (First Purchasers). Foreclosure of the mortgage securing payment of the debt is not sought herein. The circuit court granted the Seller summary judgment. The First Purchasers appeal. We affirm.

The Seller sold a motel to the First Purchasers taking back a note and purchase-money mortgage. The note contained an acceleration clause which became operative upon default for more than sixty days. It also provided "[p]resentment, protest and notice are hereby waived."

Sometime later without the Seller's knowledge, the First Purchasers conveyed the motel to a third party, Jivanbhai Bhulabhai Patel (Second Purchaser), who assumed the note and mortgage. Thereafter, again without the Seller's knowledge, the Second Purchaser conveyed the motel to Bhula Lallu Bhakta, Luxmi Bhula Bhakta, Satish Bhula Bhakta, and Bavna Satish Bhakta (Third Purchasers) who also assumed the note and mortgage.

The Seller in each instance became aware of subsequent conveyances after the fact. He accepted payments from the Third Purchasers but continually asserted to the First Purchasers that he was looking to them for payment and satisfaction under the terms of the note. All Purchasers failed to pay for a period of ninety (90) days. After demanding payment from the First Purchasers who refused, Sellers commenced this action.

During the pendency of this action, the First Purchasers sought an ex parte order of reference to the master-in-equity for the appointment of a receiver. The circuit court judge, without notice to any parties, added a provision to the order as proposed permitting the master to rule upon any summary judgment motions. The master granted to the Seller summary judgment on the note.

While eight exceptions are enumerated, only three issues are actually pertinent for disposition of the appeal. They are as follows:

1. Must the Seller foreclose his mortgage on the property or may he seek judgment on the note alone?

2. Was the Seller required to give notice of default to the First Purchasers?

3. Was the summary judgment motion properly before the master?

We dispose of the first two issues in summary fashion. The Seller had no duty to pursue foreclosure of his mortgage before suing on the note. A creditor, including mortgagees, has the option of ignoring the security and suing on the note. Edge v. Klutts Resort Realty, Inc., 276 S.C. 389, 278 S.E.2d 783 (1981);...