EX PARTE MOORE

• Decision Date: 13 January 2003
• Docket Number: No. 25578.,25578.
• Citation: 352 S.C. 508,575 S.E.2d 561
• Court: South Carolina Supreme Court
• Parties: Ex parte Louie E. MOORE, formerly doing business as Fairfield Real Estate Company, Inc., Respondent, and Britt Rowe, Purchaser, and Community Federal Savings & Loan Association, Defendants, of whom Britt Rowe is Petitioner, and Community Federal Savings & Loan Association is Respondent. In re Jerry W. Branham, Plaintiff, v. Fairfield Real Estate Company, Inc., Theophilus L. Davis, Peggy K. Branham, Betty Portee, Abraham Khalil, The Bank of Ridgeway, and Community Federal Savings & Loan Association, Defendants.

352 S.C. 508

575 S.E.2d 561

Ex parte Louie E. MOORE, formerly doing business as Fairfield Real Estate Company, Inc., Respondent, and

Britt Rowe, Purchaser, and Community Federal Savings & Loan Association, Defendants, of whom Britt Rowe is Petitioner, and

Community Federal Savings & Loan Association is Respondent.

In re Jerry W. Branham, Plaintiff, v. Fairfield Real Estate Company, Inc., Theophilus L. Davis, Peggy K. Branham, Betty Portee, Abraham Khalil, The Bank of Ridgeway, and Community Federal Savings & Loan Association, Defendants.

No. 25578.

Supreme Court of South Carolina.

Submitted December 6, 2002.

Decided January 13, 2003.

Walter B. Todd, Jr., and J. Derrick Jackson, both of Todd Holloway & Ward, P.C., of Columbia, for Petitioner.

Leonard R. Jordan, Jr., of Berry Quackenbush & Stuart, P.A., of Columbia, for Respondent, Louie E. Moore.

Robert E. Stepp, and Laura W. Robinson, both of Sowell, Gray, Stepp & Laffitte, L.L.C., of Columbia, for Respondent, Community Federal Savings & Loan Association.

PER CURIAM.

This case involves a dispute over the results of a mortgage foreclosure sale. Fairfield Real Estate Company, Inc. (Fairfield), of which respondent Louie E. Moore (Moore) was the president and sole shareholder, executed and delivered several promissory notes to plaintiff Jerry Branham and respondent Community Federal Savings and Loan Association (Community), secured by mortgages on Fairfield's real estate. Fairfield defaulted on these mortgages, and Branham brought the underlying foreclose action.

The foreclosure action was referred to a Special Referee who found that Community's liens had first priority and Branham had second priority. The Special Referee ordered the property sold at public auction and issued an order of foreclosure requiring the successful bidder to post a deposit of five-percent of the successful bid.

At the public auction, Moore was the highest bidder, bidding $96,000 for the property. However, Moore was unable to immediately post the five-percent deposit, and the Special Referee reopened the sale. Petitioner was the highest bidder at the second sale, bidding $84,100. Petitioner was allowed fifteen minutes to post his deposit. Petitioner posted the bond, and the sale was concluded.

Moore filed an Objection to the Confirmation of the Second Foreclosure Sale and a Motion to Confirm the Initial Sale. The Master-in-Equity denied the motions and found that the Special Referee conducting the sale acted appropriately in requiring Moore to post a deposit within minutes of the sale and that, upon Moore's failure to do so, conducting a second sale.

The Court of Appeals reversed, holding that a purchaser at a foreclosure sale has until 5:00 p.m. on the sale day to tender the deposit unless the order of the court and the notice of the sale specifically provide for a different payment time. The Court of Appeals found that the Special Referee impermissibly amended the court order and notice of sale by requiring immediate payment of the deposit and, therefore, the second sale to petitioner should be set aside. Ex parte Moore, 346 S.C. 274, 550 S.E.2d 877 (Ct.App.2001).

We granted certiorari to review ...