The Bank of New York Mellon v. Lanier
Decision Date | 07 August 2019 |
Docket Number | 2019-UP-284 |
Court | South Carolina Court of Appeals |
Parties | The Bank of New York Mellon, f/k/a The Bank of New York as successor-in-interest to JPMorgan Chase Bank, N.A. as successor in interest by merger to Bank One, N.A. as Trustee for Structured Asset Mortgage Investments Inc., Mortgage Pass-Through Certificates, Series 2002-AR4, Respondent, v. Cathy C. Lanier; Branch Banking and Trust Company, Regions Bank, Defendants, Of Whom Cathy C. Lanier is the Appellant. Appellate Case No. 2017-000874 |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Submitted June 3, 2019
Appeal From Lexington County James O. Spence, Master-in-Equity
S Jahue Moore and John Calvin Bradley, Jr., both of Moore Taylor Law Firm, P.A., of West Columbia, for Appellant.
Benjamin Rush Smith, III and Nicholas Andrew Charles, both of Nelson Mullins Riley & Scarborough, LLP, of Columbia, for Respondent.
In this mortgage foreclosure action, Appellant Cathy C. Lanier challenges the order of the master-in-equity granting summary judgment to the Bank of New York Mellon ("Bank") on the issue of standing. Lanier argues the master erred in excluding her expert's affidavit, finding there were no genuine issues of material fact concerning Bank's standing to foreclose, and granting summary judgment when discovery was incomplete. We affirm pursuant to Rule 220(b) SCACR, and the following authorities:
1. The master properly excluded Lanier's expert's affidavit. See State v. Douglas, 411 S.C. 307, 316, 768 S.E.2d 232, 237 (Ct. App. 2014) (); Judy v. Judy, 384 S.C. 634, 641, 682 S.E.2d 836, 839 (Ct. App. 2009) (). On appeal, Lanier does not challenge the master's finding that the documents relied upon by Lanier's expert and attached to his affidavit were not authenticated, and Lanier only offers a conclusory parenthetical to dispute the finding that the documents constituted hearsay. See Biales v. Young, 315 S.C 166, 168, 432 S.E.2d 482, 484 (1993) (); Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001) (). Because these issues were abandoned, the master's finding that the documents were inadmissible is the law of the case. See Atl. Coast Builders and Contractors, LLC v. Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012) (). Accordingly, the master did not err in excluding the documents or the affidavit to the extent it directly referenced inadmissible information from the documents. See Rule 56(e), SCRCP ; Hall v. Fedor, 349 S.C. 169, 175, 561 S.E.2d 654, 657 (Ct. App. 2002) (); Rule 703, SCRE ("If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence."); Allegro, Inc. v. Scully, 400 S.C. 33, 46-47, 733 S.E.2d 114, 122 (Ct. App. 2012) .
Additionally, we find the master properly excluded the expert affidavit on the ground that it contained improper legal conclusions, as the affidavit mainly provided reasons why summary judgment should be granted in favor of Lanier as a matter of law. See Rule 702, SCRE ("If . . . specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."); Dawkins v. Fields, 354 S.C. 58, 66, 580 S.E.2d 433, 437 (2003) (); id. at at 66-67, 580 S.E.2d at 437 () .
2. The master properly granted Bank's motion for summary judgment on standing, as there were no genuine issues of material fact concerning Bank's standing to foreclose. See Turner v. Milliman, 392 S.C. 116, 121-22, 708 S.E.2d 766, 769 (2011) (); Rule 56(c), SCRCP ( ); Lanham v. Blue Cross & Blue Shield of S.C., Inc., 349 S.C. 356, 362, 563 S.E.2d 331, 333 (2002) (); see also Powell ex rel. Kelley v. Bank of Am., 379 S.C. 437, 444, 665 S.E.2d 237, 241 (Ct. App. 2008) ; Bank of Am., N.A. v. Draper, 405 S.C. 214, 220, 746 S.E.2d 478, 481 (Ct. App. 2013) ; Patton v. Miller, 420 S.C. 471, 479, 804 S.E.2d 252, 256 (2017) ; Deep Keel, LLC v. Atl. Private Equity Grp., LLC, 413 S.C. 58, 67 n.7, 773 S.E.2d 607, 612 n.7 (Ct. App. 2015) ; S.C. Code Ann. § 36-3-102(a) (Supp. 2018) (); S.C. Code Ann. § 36-3-301 (Supp. 2018) (); S.C. Code Ann. § 36-1-201(20) (2003)[1] ("a person who is in possession of a document of title or an instrument or a certificated investment security drawn, issued, or indorsed to him or to his order or to bearer or in blank") that a holder is ; Draper, 405 S.C. at 221, 746 S.E.2d at 481 ("Under South Carolina law one finds the general proposition that the plaintiff in a foreclosure suit should be the real, beneficial owner of the mortgage debt." (quoting In re Woodberry, 383 B.R. 373, 379 (Bankr. D.S.C. 2008)); U.S. Bank Tr. Nat'l Ass'n v. Bell, 385 S.C. 364, 374, 684 S.E.2d 199, 204 (Ct. App. 2009) ().
As the party moving for summary judgment, the initial burden was on Bank to prove standing. See Peterson v. W. Am. Ins. Co., 336 S.C. 89, 94, 518 S.E.2d 608, 610 (Ct. App. 1999) (). In support of its motion for summary judgment, Bank submitted copies of the original note and mortgage, copies of allonges[2] to the note and assignments[3] of the mortgage, and the affidavit of Joseph G. Devine, Jr., an authorized signer with JPMorgan Chase ("Chase"). Devine indicated that Chase was the mortgage servicer and attorney-in-fact[4] for Bank and that Chase was in possession of the original note, mortgage, and allonges. Accordingly, we find Bank established that it is a holder of the note and mortgage and, as a result, met its initial burden of demonstrating standing.
Because Bank met its initial burden, Lanier was required to submit at least a scintilla of evidence to withstand summary judgment. See Fowler v. Hunter, 380 S.C. 121, 125, 668 S.E.2d 803, 805 (Ct. App. 2008) (); Hancock v. Mid-South Mgmt. Co., Inc., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009) (...
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