First Sav. Bank v. McLean, 24073

Decision Date19 May 1993
Docket NumberNo. 24073,24073
Citation444 S.E.2d 513,314 S.C. 361
CourtSouth Carolina Supreme Court
PartiesFIRST SAVINGS BANK, Respondent, v. A.F. McLEAN, Jr., and Mary H. McLean, Defendants, of whom A.F. McLean, Jr. is, Appellant. . Heard

Frederick K. Jones, Florence, for appellant.

E. S. Swearingen, Florence, for respondent.

FINNEY, Justice:

This is an appeal of a mortgage foreclosure action. The matter was referred by consent to a special referee with direct appeal to the Supreme Court. After a hearing in the absence of Appellant, the special referee by order filed October 24, 1991, foreclosed the mortgage and ordered the sale of the property by public auction. 1 Appellant filed a motion to reconsider and requested a new trial on the basis of after-discovered evidence. A hearing was held and a supplemental order was issued November 11, 1991. On November 13, 1991, Appellant filed an appeal of the prior orders. The property was sold pursuant to the October 24, 1991, order at a bid price of $62,000. However, due to a defective notice of sale, the referee issued an order on December 18, 1991, setting a new sales day of January 13, 1992. The property was ultimately sold for $55,010.

Appellant alleges the special referee committed various abuses of discretion. First, Appellant contends the referee erred in refusing to continue the foreclosure hearing to allow Appellant to testify and present evidence. We disagree. A motion for continuance is within the sound discretion of the trial court and the ruling will not be reversed without a clear showing of abuse. South Carolina Department of Social Services v. Broome, 307 S.C. 48, 413 S.E.2d 835 (1992).

The record reveals that Appellant was properly notified of the foreclosure hearing, but did not attend because he was away on a business trip. The referee did not abuse his discretion in declining to grant a continuance so that Appellant could personally testify. Appellant's decision not to attend the hearing was a matter of priority and thus, we find no abuse of discretion.

Appellant next asserts that the special referee abused his discretion by failing to grant all the relief he sought in his motion to reconsider. Appellant fails to provide arguments or supporting authority for his assertion. Thus, he is deemed to have abandoned this issue. Matthews v. City of Greenwood, 305 S.C. 267, 407 S.E.2d 668 (Ct.App.1991). Mere allegations of error are not sufficient to demonstrate an abuse of discretion. On appeal, the burden of showing abuse of discretion is on the party challenging the trial court's ruling. State ex rel. McLeod v. Wilson, 279 S.C. 562, 310 S.E.2d 818 (Ct.App.1983). Even if Appellant had properly preserved this issue, we find no abuse of discretion in the denial of the relief sought.

Appellant contends the special referee should have granted a new trial based on after-discovered evidence. We disagree.

Appellant claims that during the course of testimony at the foreclosure hearing, he discovered for the first time that respondent was denying that appellant had provided property insurance coverage. The record refutes this claim, showing that Appellant was aware of a dispute months prior to the hearing. Therefore, we find there is no after-discovered evidence here.

Next, Appellant claims that the special referee erred in foreclosing the mortgage without a proper accounting. We disagree.

Appellant contends that respondent could not account for escrow payments made prior to assignment of the mortgage to First Savings Bank. However, Appellant did not provide evidence of any discrepancy in the payment records. The special referee expressly found and the record contains documentary evidence supporting that respondent fully accounted for the payments made by Appellant. Appellant has not met his burden of showing both error and prejudice. Cumbie v. Cumbie, 245 S.C. 107, 139 S.E.2d 477 (1964).

Appellant argues that the order of reference became null and void before the final order was issued, thus, the referee lacked jurisdiction to issue the amended order dated December 18, 1991. We disagree.

The order of reference provided that the final order shall be filed within sixty (60) days of the order or it would become null and void. The October order was timely filed. The subsequent orders were issued either in response to Appellant's motion to reconsider or pursuant to the referee's exercise of his...

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