Wells Fargo Home Mortg. v. Salas
| Decision Date | 29 March 2006 |
| Docket Number | 2006-UP-177 |
| Parties | Wells Fargo Home Mortgage, Respondent, v. Eric C. Salas, South Carolina Worker's Compensation Uninsured Employers Fund, Gannett Pacific Corporation, The Greenville News-Piedmont Company, and South Carolina Department of Revenue, Defendants, of whom Eric C. Salas is, Appellant. |
| Court | Court of Appeals of South Carolina |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Heard February 7, 2006
Appeal From Greenville County Charles B. Simmons, Jr., Master In Equity
Randall S. Hiller, of Greenville, for Appellant.
Peter D. Korn, of Columbia, for Respondent.
In this foreclosure action, Eric Salas appeals the master's order denying his motion to set aside the default judgment entered against him and his motion to set aside the judicial sale of his Greenville County property. We affirm.
On February 20, 2004, Wells Fargo Home Mortgage, Inc. (Wells Fargo) initiated a foreclosure action against Salas. Salas failed to make payments to Wells Fargo on a note secured by a mortgage covering Salas's property in Greenville County (the Property). Copies of the summons, complaint, and lis pendens were left with Salas's step-son, Joe Wigerman, at the Property address. At the time, Wigerman was eleven or twelve years old.
On April 12, 2004, Wells Fargo filed an affidavit of default against Salas. After a hearing, the master issued an order granting Wells Fargo's action to foreclose the mortgage and directing the sale of the Property at a public auction. The order required that at the time of the sale the master obtain from the bidder a deposit of five percent of the amount of the bid. The order also provided that if the bidder failed to comply with the terms of the sale within twenty days after the date of sale, the five percent deposit would be forfeited and applied to Salas's debt to Wells Fargo.
At the judicial sale, the Property was sold to Family Home Solutions, LLC (Family Home). Although the order required full compliance by September 21, 2004, Family Home did not fully comply until September 23, 2004-more than twenty days after the date of sale, but only two days after the set date for compliance. Salas moved to set aside the default judgment and the sale of the Property. The master denied both motions. Salas appealed.
The grant or denial of relief from a final judgment pursuant to Rule 60(b), SCRCP, is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Thompson v. Hammond, 299 S.C. 116, 119 382 S.E.2d 900, 902-03 (1989). An abuse of discretion occurs when the court's order is controlled by an error of law or unsupported by the evidence. Id. An action to set aside a judicial property sale is equitable in nature. Spillers v. Clay, 233 S.C. 99, 102, 103 S.E.2d 759 760 (1958); Fed. Nat'l Mortgage Ass'n v Brooks, 304 S.C. 506, 512, 405 S.E.2d 604, 607 (Ct. App. 1991). In an equitable action, the appellate court may review the evidence to determine the facts in accordance with its own view of the preponderance evidence. Hayne Fed. Credit Union v. Bailey, 327 S.C. 242, 248, 489 S.E.2d 472, 475 (1997).
Salas argues the master committed reversible error in denying his motions to set aside the default judgment and the judicial sale of the Property. We disagree.
Salas asserts the master erred in denying his motion to set aside the default judgment because service upon his step-son was improper. We disagree.
Rule 4(d), SCRCP, provides service upon an individual must be made by delivering a copy of the summons and complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein....” The plaintiff carries the burden of showing that the trial court has personal jurisdiction over the defendant. Jensen v. Doe, 292 S.C. 592, 594, 358 S.E.2d 148, 148 (Ct. App. 1987). If the plaintiff complies with the South Carolina Rules of Civil Procedure, however, proper service is presumed. Fassett v. Evans, 364 S.C. 42, 47, 610 S.E.2d 841, 843 (Ct. App. 2005). Accordingly, an officer's return of process creates a legal presumption of proper service that cannot be impeached by the mere denial of service by the defendant. Id.
Service was proper in this case. After Wells Fargo filed an affidavit of service attesting to proper service upon a person of suitable age and discretion, the burden then shifted to Salas to show his step-son, Wigerman, was not a person of suitable age and discretion. Salas introduced no evidence demonstrating Wigerman was not a person of suitable age and discretion. Salas did not proffer Wigerman's testimony; he merely denied personally receiving the summons and complaint. As Fassett makes clear, an officer's return of process creates a presumption of proper service that cannot be rebutted by Salas's mere denial of service by Wells Fargo. Accordingly, the master did not abuse his discretion in denying Salas's motion to set aside the default judgment for improper service.
Salas next argues the judicial sale should be vacated or set aside because the successful bidder at the sale did not timely comply with the bid as required by the master's order of foreclosure. We disagree.
The terms of sale, as set forth in the order of foreclosure and notice of sale, provide that the successful bidder must comply with the terms of the bid within twenty days of the close of the bidding process. The terms of sale also provide that if the successful bidder does not comply within the twenty day period, the bidder's deposit will be forfeited and applied first to costs and then to Salas's debt. In this case, it is undisputed that the successful bidder, Family Home, was two days late in paying the balance of its bid to the master. The issue is whether this irregularity required the master to set aside the judicial sale of the Property.
The terms of judicial sales are set by court order, Rule 71 SCRCP, and statute. S.C. Code Ann. §§ 15-39-10 to -900 (2005); Ex parte Moore v. Fairfield Real Estate Co., 352 S.C. 508, 510, 575 S.E.2d 561, 562 (2003); Ex parte Keller v. Hutto, 185 S.C. 283, 292-93, 194 S.E.2d 15, 18 (1937). Bidders at judicial sales are charged with notice of the terms of sale and the selling officer has no authority to vary the terms set forth in the order of sale. Hudson v. Inman, 179 S.C. 399, 404, 184 S.E.2d 102, 104 (1936). Moreover, although selling officers may not alter the terms of the court order, they are given wide discretion in the manner in which they conduct judicial sales.” Ex parte Moore, 352 S.C. at 510-11, 575 S.E.2d at 562. Nevertheless, while case law makes clear that the selling officer acts in a ministerial capacity as the arm of the court” and in no way acts in a judicial capacity, ” Fed. Nat'l Mortgage Ass'n v. Brooks, 304 S.C. 506, 510, 405 S.E.2d 604, 606 (Ct. App. 1991), in practice, the line between the selling and judicial functions has been blurred because the master may now serve in both...
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