Ex parte Moore

• Decision Date: 04 June 2001
• Docket Number: No. 3352.,3352.
• Citation: 346 S.C. 274,550 S.E.2d 877
• Court: South Carolina Court of Appeals
• Parties: Ex parte: Louie E. MOORE, formerly doing business as Fairfield Real Estate Company, Inc., Appellant, and Britt Rowe, Purchaser, and Community Federal Savings & Loan Association, Respondents. In re: Jerry W. Branham, Plaintiff, 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.

346 S.C. 274

550 S.E.2d 877

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

Britt Rowe, Purchaser, and Community Federal Savings & Loan Association, Respondents.

In re: Jerry W. Branham, Plaintiff,

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. 3352.

Court of Appeals of South Carolina.

Heard May 8, 2001.

Decided June 4, 2001.

Rehearing Denied August 17, 2001.

Leonard R. Jordan, Jr., of Berry, Quackenbush & Stuart, of Columbia, for appellant.

Robert E. Stepp and Laura W. Robinson, both of Sowell, Gray, Stepp & Laffitte, of Columbia; and R. Westmoreland Clarkson, of Winnsboro, for respondent Community Federal Savings & Loan Association.

Walter B. Todd, Jr., and J. Derrick Jackson, both of Todd, Holloway & Ward, of Columbia, for respondent Britt Rowe.

ANDERSON, Judge:

This appeal involves a special referee's conduct at a mortgage foreclosure sale. Louie E. Moore ("Moore") was the highest bidder at the foreclosure sale of certain real estate owned by Fairfield Real Estate Company, Inc. ("Fairfield"), at which time Moore was the president and sole shareholder of Fairfield. The referee then announced Moore was required to tender his earnest money to the court within fifteen minutes of the closing of the first sale. After Moore could not tender his deposit within the allotted time limit, the referee re-auctioned the property. Moore objected to the second sale and moved to confirm the first sale. Moore's objections were denied. Moore appeals. We reverse.

FACTS/PROCEDURAL BACKGROUND

Certain property owned by Fairfield¹ was foreclosed on by one of Fairfield's mortgagors, Jerry W. Branham.² By order filed December 18, 1998, the special referee ordered the subject property³ to be sold at public sale, with no deficiency judgment requested. The referee stated in the fourth paragraph in his judgment order that the sale was:

A. FOR CASH: The Special Referee will require a deposit of 5% on the amount of the bid (in cash or equivalent), same to be applied on the purchase price only upon compliance with the bid, but in the case of non-compliance within 30 days, same to be forfeited and applied to the costs and the first mortgage lien.

The Amended Notice of Sale filed January 27, 1999, reiterated the "terms of sale" which were, in part:

A. FOR CASH. The Special Referee will require a deposit of five (5%) per cent of the amount bid (in cash or equivalent), the same to be applied on the purchase price upon compliance with the bid, but in case of noncompliance within 30 days after the date of the sale, same to be forfeited and applied to costs and the first mortgage lien.

The referee conducted the foreclosure sale on March 1, 1999. Moore, formerly doing business as Fairfield, Britt Rowe ("Rowe"), and other bidders attended the sale. Moore offered the highest bid of $96,000 for the subject 33.03 acre tract, which was approximately $11,000 more than Rowe's second place bid. Upon Moore's being declared the highest bidder, the special referee ordered Moore to produce his 5% deposit of $4,800 within five minutes.⁴ When Moore proffered he could not secure his funding immediately, the special referee allowed Moore fifteen minutes to secure the deposit.

Moore was unable to secure financing within this fifteen minute allowance. Moore testified in a subsequent hearing that he was unable to reach his financier, Craig McMaster, a member of the board of trustees for Community Federal Savings & Loan Association ("Community"). Thereafter, the referee reopened the bidding without Moore's participation, whereupon Rowe offered the highest bid of $84,000. Rowe posted a cashier's check worth 5% of his bid with the court within fifteen minutes of the close of the second bidding. At approximately 4:30-4:45 p.m. on the day of the sale, Moore posted 5% of his bid from the first sale with the Fairfield County Clerk of Court.

On March 11, 1999, Moore filed an objection to the confirmation of the second sale of the property and moved to confirm the initial foreclosure sale. A hearing before the referee was held March 25, 1999, in which Moore's motions were denied by order filed April 22, 1999. Moore moved to alter or amend the special referee's order on May 3, 1999.

At the hearing, the referee waived recitation of the facts, stating they were not in dispute and that he knew all the relevant facts from participating in the prior case proceedings. Also, the referee admitted he treated Moore differently than other bidders on the property because:

[Moore is] the one that's had five years to make his payments. He's the one that has not made his payments. He's the reason we [were] selling the property.

Additional relevant exchanges with the court are repeated below:

Moore's Counsel: Well, again, I don't think that [who the bidder was is] an issue that matters. And again, I have a feeling that the Court is taking the position that because the bidder happen [sic] to be the owner of the property[,] he should be treated more strictly and severely than a bidder who is not.

The Court: Let me tell you what the facts are clearly in this case, Mr. Jordan. Mr. Moore failed to pay three debts of written notes. Mr. Moore sold contracts of sale of real estate for the subject property that was subject to two mortgages to innocent third parties. In addition to that, Mr. Moore sold those contracts and received money from them without selling the underlying land or obtain [sic] a release from those mortgages. All of that's in the records[,] and in my opinion[,] because of that this court has some judgment and discretion as to what time period it's going to allow that person, as known through these proceedings not outside of anything that took place in this case, as to what I'm going to allow him to come up with the money, what time period to come up with the money. Does that sound unreasonable to you?

Moore's Counsel: Your Honor ... it sounds like to me you're treating him differently because he is the owner and because he is a defaulting borrower.

The Court: No, sir.

. . . .

The Court: My concern, I'm not going to keep beating a dead horse[,] but ... and this don't need to be on the record. To me[,] the whole issue is and I think throughout this circuit, as a referee, right or wrong, you typically exercise some discretion in, within the requirements of the deed, making that deposit. And I think normally[,] it's everything from when you walk back to the attorney's office or you do like Mr. Moore was, how long is it going to take you to have the money. I can get it here by such and such. If Mr. Moore had had an attorney that would stand as a member of the Bar and indicate to me that he had the money and he would have it in my office at 5:00 o'clock[,] I don't think we would have been here. But what you, Mr. Jordan, are asking me to accept is that here's a man that all along had the full amount, whatever he was going to bid, had that money available. Does it not make sense that he would have gone and made arrangements to catch up those two mortgages if he would have had the money available to him? I mean, why, if he had $98,000.00 he could have brought things current months ago. And I know I'm getting beyond what we're hearing today[,] but isn't that just common sense.

Moore's Counsel: That's what I'm saying. It appears to be some $140,000 worth of ....

The Court: That's the principal too. No, sir, he could have brought them current.

Moore's Counsel: Well, what I'm saying is that if he bought the property back at $96,000.00[,] he has therefore saved what amounts to maybe $45,000, $50,000.

The Court: By beating his credit.

Moore's Counsel: Well, okay, here we go again, Your Honor. This the whole point. I think you're treating Mr. Moore differently because he, in fact, seems to be a guy who beats his credit.

The Court: I'm treating him differently because he had absolutely no credit worthiness based on the debts in this case.

. . . .

The Court: The Court's not trying to protect anybody. The only thing I'm trying to ensure is that somebody ... the purpose of a bid is that you're going to come up with the rest of your money. If you don't[,] then it's some detriment to you. And again, in that Hudson case,⁵ if such a person can resell the property being at a profit or finds that he's made a profitable purchase[,] then he makes his check good and complies with his bid, otherwise he does nothing and there's not [sic] redress to him. And that's talking about a personal check or certified check, but isn't that really what the issue is? Let's assume Mr. Moore had not come up with the money, he would be out absolutely nothing.

Moore's Counsel: Oh, certainly. In other counties[,] he might be doing jail time, Judge. I suspect the way you feel about him[,] he probably would be.

The Court: Don't tempt me. I'd rather stay silent on that.

(emphasis added).

Additionally, Alan W. Pullen, president of Community, who attended the foreclosure sale, testified he was surprised at the referee's time limit requirement applied after Moore's successful bid. He averred he had never witnessed an immediate compliance requirement and that the standard practice in many counties require the deposit paid at the end of the day of the sale. Pullen stated the normal practice in Fairfield County is to allow successful bidders to tender their deposits by 5:00 p.m. the same day of the sale.

On March 31, 1999, Rowe tendered the balance of his bid price on the property to the Clerk of Court for Fairfield County. The special referee confirmed the second sale by order filed April 22, 1999, and orally denied reconsideration of this order on September 29, 1999. On October 6, 1999, Moore filed his notice of appeal. Thereafter, on October 18, 1999, Moore petitioned the South Carolina Court of Appeals for a...