U.S. Bankv. Meisner

• Decision Date: 10 August 2022
• Docket Number: 2022-UP-237,Appellate Case 2020-000069
• Parties: U.S. Bank, National Association, as trustee for the Holders of The Banc of America Funding Corporation, 2008-FT1 Trust, Mortgage Pass-Through Certificates, Series 2008-FT1, Respondent, v. Rhonda Lewis Meisner a/k/a Rhonda L. Meisner; Bank of America, N.A.; and SCBT, Defendants, Of whom Rhonda Lewis Meisner is the Appellant.
• Court: South Carolina Court of Appeals

U.S. Bank, National Association, as trustee for the Holders of The Banc of America Funding Corporation, 2008-FT1 Trust, Mortgage Pass-Through Certificates, Series 2008-FT1, Respondent, v. Rhonda Lewis Meisner a/k/a Rhonda L. Meisner; Bank of America, N.A.; and SCBT, Defendants, Of whom Rhonda Lewis Meisner is the Appellant.

No. 2022-UP-237

Appellate Case No. 2020-000069

Court of Appeals of South Carolina

August 10, 2022

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 July 27, 2022

Appeal From Richland County Joseph M. Strickland, Master-in-Equity

Rhonda L. Meisner, of Blythewood, pro se.

Jasmine Kelly Gardner, of McGuireWoods LLP, of Charlotte North Carolina, and Magalie Arcure Creech, of Charleston both for Respondent.

PER CURIAM.

In this mortgage foreclosure action, Rhonda L. Meisner (Meisner) challenges the order of the master-in-equity granting summary judgment to U.S. Bank, National Association, as trustee for the Holders of the Banc of America Funding Corporation 2008-FT1 Trust, Mortgage Pass-Through Certificates, Series 2008-FT1 (U.S. Bank). Meisner argues the master erred by: (1) determining it possessed the jurisdiction to rule on summary judgment; (2) finding there were no issues of material fact concerning U.S. Bank's standing to foreclose; and (3) determining U.S. Bank was entitled to attorney's fees. We affirm.

1. Meisner argues that because her appeal of the Order Striking Defendant's Jury Demand and for Mandatory Reference was still pending when U.S. Bank filed its Motion for Summary Judgment on April 15, 2019, the master did not have jurisdiction to consider it. See generally Wilson v. Walker, 340 S.C. 531, 539, 532 S.E.2d 19, 23 (Ct. App. 2000) ("Generally, serving [the] notice of appeal divests the lower court of jurisdiction over the order appealed, except for matters not affected by the appeal."); Jackson v. Speed, 326 S.C. 289, 311, 486 S.E.2d 750, 761 (1997) ("Upon the service of the notice of appeal, the appellate court shall have exclusive jurisdiction over the appeal Nothing in these Rules shall prohibit the lower court . . . from proceeding with matters not affected by the appeal." (citing Rule 205, SCACR)).

However, the South Carolina Supreme Court remitted the case on June 28, 2019- four months before the hearing on the motion took place. Therefore, because the motion was heard after the remittitur, the master had jurisdiction to hear and rule on U.S. Bank's motion for summary judgment consistent with the appellate court ruling. See Martin v. Paradise Cove Marina, Inc., 348 S.C. 379, 384, 559 S.E.2d 348, 351 (Ct. App. 2001) ("A question of subject matter jurisdiction is a question of law for the court."); Parker v. Shecut, 359 S.C. 143, 152, 597 S.E.2d 793, 798-99 (2004) ("When the Supreme Court remits a case to the circuit court, the circuit court 'acquires jurisdiction to enforce the judgment and take any action consistent with the Supreme Court ruling.'" (citing Muller v. Myrtle Beach Golf & Yacht Club, 313 S.C. 412, 414-15, 438 S.E.2d 248, 249-50 (1993))); Moore v. N. Am. Van Lines, 319 S.C. 446, 448, 462 S.E.2d 275, 276 (1995) (holding that despite the issuance of the remittitur and the fact that the case was not expressly "remanded" to the circuit court, the circuit court was still vested with jurisdiction to hear the appellant's motion for restitution).

2. The master properly granted U.S. Bank's motion for summary judgment as there were no genuine issues of material fact concerning U.S. Bank's standing to foreclose

nor Meisner's default on the loan. See Turner v. Milliman, 392 S.C. 116, 121-22, 708 S.E.2d 766, 769 (2011) ("When reviewing a grant of summary judgment, appellate courts apply the same standard applied by the trial court pursuant to Rule 56(c), SCRCP."); Rule 56(c), SCRCP (providing that summary judgment shall be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law"); Lanham v. Blue Cross &Blue Shield of S.C., Inc., 349 S.C. 356, 362, 563 S.E.2d 331, 333 (2002) ("On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below."); Bank of Am., N.A. v. Draper, 405 S.C. 214, 220, 746 S.E.2d 478, 481 (Ct. App. 2013) ("Generally, a party must be a real party in interest to the litigation to have standing." (quoting Hill v. S.C. Dep't of Health & Env't Control, 389 S.C. 1, 22, 698 S.E.2d 612, 623 (2010))); Patton v. Miller, 420 S.C. 471, 479, 804 S.E.2d 252, 256 (2017) ("A real party in interest is 'the party who, by the substantive law, has the right sought to be enforced.'" (quoting Draper, 405 S.C. at 220, 746 S.E.2d at 481)); U.S. Bank Tr. Nat'l Ass'n v. Bell, 385 S.C. 364, 374, 684 S.E.2d 199, 204 (Ct. App. 2009) ("A mortgage and a note are separate securities for the same debt, and a mortgagee who has a note and mortgage to secure a debt has the option to either bring an action on the note or to pursue a foreclosure action.").

"Under Rule 56(c), SCRCP, the party seeking summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact." Peterson v. West 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, U.S. Bank submitted copies of the note and mortgage, copies of the assignment of mortgage and corporate assignment, an affidavit in support of their motion for summary judgment, and a verified statement of account. Accordingly, we find U.S. Bank established that it is a holder of the mortgage and, as a result, met its initial burden of demonstrating standing.

We hold Meisner failed to submit 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) ("[T]he non-moving party must set forth specific facts demonstrating to the court there is a genuine issue for trial."); Hancock v. Mid-South Mgmt. Co., Inc., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009) ("[I]n cases applying the preponderance of the evidence burden of proof, the non-moving party is only required to submit a mere scintilla of...