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2004-UP-582 - Bedford v. Mercury Finance Company of South Carolina
PER CURIAM: This is an appeal from the grant of summary judgment in favor of the respondent Mercury Finance Company against t

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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Donald C. Bedford, Appellant,

v.

Mercury Finance Company of South Carolina and Travelers Rest Cars-Trucks, LLC, Defendants,

Of Whom Mercury Finance Company of South Carolina is the Respondent.


Appeal From Greenville County
 Larry R. Patterson, Circuit Court Judge


Unpublished Opinion No. 2004-UP-582
Submitted November 1, 2004 – Filed November 17, 2004


AFFIRMED


Michael Stephen Chambers, of Greenville, for Appellant.

A.M. Quattlebaum, Jr. and Peter G. Siachos, both of Greenville, for Respondent.

PER CURIAM:  This is an appeal from the grant of summary judgment in favor of the respondent Mercury Finance Company against the appellant Donald C. Bedford.  We affirm. [1]

Bedford purchased a 1997 Chevrolet pickup truck on September 14, 2000, from the defendant Travelers Rest Cars-Trucks, LLC.  On March 16, 2001, Bedford’s attorney wrote Mercury Finance a letter advising that Bedford “rescinds the transaction” and “will retain possession of the auto [sic] as security for the return of . . . payments” that Bedford had made on the vehicle.  Mercury Finance repossessed the truck on May 4, 2001. 

This action ensued with Bedford’s complaint alleging causes of action for conversion, violation of the Federal Truth-in-Lending Act, violation of the South Carolina Consumer Protection Code, fraud, rescission, violation of the Unfair Trade Practices Act, and violation of the Regulation of Manufacturers, Distributors, and Dealers Act. 

According to Bedford’s brief, “[t]he gravamen of [his] claim is that he was not made aware of the monthly payments required under the transactions” and “[t]his is the direct result of the failure to provide [him] with a copy of the required disclosures.”  This “[f]ailure,” he says, “constitutes a material misrepresentation and inducement by unconscionable conduct, warranting revocation of acceptance.” 

The trial court granted summary judgment to Mercury Finance on all causes of action.  It found that Mercury Finance provided Bedford with all disclosure forms required by the Federal Truth-in-Lending Act, 15 U.S.C.A. §§ 1601 et seq. (1998) [hereinafter, “the Act”]. 

The grant of summary judgment came after Mercury Finance had served Bedford on June 19, 2001, with interrogatories, requests for production of documents, and requests for admissions, and moved on February 4, 2002 to compel Bedford to answer its interrogatories and respond to its requests for production of documents that Bedford had ignored.  The trial court had granted Mercury Finance’s motion to compel, ordering Bedford to answer all outstanding discovery requests within ten days or by March 31, 2002.  Notwithstanding the fact that almost ten months had passed since Mercury Finance had served its discovery upon Bedford, he had waited until April 4, 2002, to respond to Mercury Finance’s requests for admission, missing the court-imposed deadline by four days. 

When reviewing the grant of summary judgment by a trial court, the court of appeals will apply the same standard used by the trial court under Rule 56(c), SCRCP, in considering it.  That is, summary judgment will be held proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.  Baril v. Aiken Reg’l Med. Ctrs., 352 S.C. 271, 279-80, 573 S.E.2d 830, 835 (Ct. App. 2002).  Furthermore, “[w]hen a plaintiff is faced with a defendant’s motion for summary judgment that is supported by evidence, the plaintiff cannot defeat the motion by relying upon the mere allegations of his complaint, but must disclose the facts he intends to rely on by affidavit or other proof.”  Shupe v. Settle, 315 S.C. 510, 516, 445 S.E.2d 651, 655 (Ct. App. 1994).  The facts presented and all reasonable inferences that may be drawn from them must be viewed in the light most favorable to the nonmoving party.  Englert, Inc. v. Netherlands Ins. Co., 315 S.C. 300, 302, 433 S.E.2d 871, 873 (Ct. App. 1993).

Under the Act, the term “material disclosures” means, among other things, “the disclosure, as required by this subchapter [15 U.S.C.A. §§ 1601 et seq. (1998)], of . . . the total of payments, the number of and amount of payments, . . . to repay the indebtedness.”  15 U.S.C.A. § 1602(u) (1998).

We agree with the trial court that no genuine issue of material fact exists regarding whether Bedford was provided with a disclosure form that told him of the amount of the monthly payments that the transaction in question required him to make.  The record contains a document entitled “RETAIL INSTALLMENT CONTRACT—AUTO (including Truth in Lending Disclosures) SOUTH CAROLINA.”  The document includes a box whose heading reads, “TRUTH IN LENDING DISCLOSURES.” Within the box are smaller ones that disclose, among other things, the total of payments, the number of payments, and the amount of payments required to repay the indebtedness. [2]   A signature, that Bedford conceded at his deposition resembled his own and at no time challenged, appears below a statement that reads, “Buyer hereby acknowledges receipt of an exact and completely filled in copy of this contract at the time of its execution.”   

Moreover, Bedford is deemed under Rule 36(a), SCRCP, to have admitted he signed the Retail Installment Contract after he failed to respond timely to Mercury Finance’s requests for admission, particularly the statements “[t]hat [Bedford] signed the Retail Installment Contract” and “[t]hat the Retail Installment Contract . . . contains all the disclosures required by law.”  Even if the trial court’s order compelling discovery is viewed as allowing Bedford an additional ten days to respond to Mercury Finance’s request for admission, Bedford failed to meet that deadline as well. [3]   Under Rule 36(b), SCRCP, the admitted matters were deemed “conclusively established” since Bedford never asked to withdraw or amend his admissions and the trial court never allowed him to do so. [4]

Because we hold the trial court did not err in granting summary judgment to Mercury Finance on the issue of whether it provided Bedford with a proper truth-in-lending document, we need not address the question of whether Bedford lawfully revoked his acceptance of the pickup under the Uniform Commercial Code, S.C. Code Ann. § 36-2-608 (2003).

AFFIRMED.

HEARN, C.J., GOOLSBY and WILLIAMS, JJ. concur


[1]   This case is decided without oral argument pursuant to Rule 215, SCACR.

[2]    The monthly payments were listed as being $358.86.  He admitted during his deposition that he made five or six payments of approximately $360 a month.

[3]   The trial court’s order regarding discovery came in response to a motion by Mercury Finance to compel Bedford to answer its interrogatories and respond to its requests for production of documents.  The trial court gave Bedford “10 days to fully answer all outstanding discovery requests.” 

[4]    The trial court rightly ignored the affidavit Bedford executed in which he swore he “was not provided with a Truth in Lending Disclosure Statement” and he did “not recall signing a Truth in Lending Disclosure Statement.”  A party cannot create a genuine issue of material fact in an effort to survive a motion for summary judgment by submitting an affidavit that contradicts a conclusively-established admitted fact.  See United States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir. 1987) (holding affidavits entered into opposition to a motion for summary judgment in an attempt to establish issues of fact could not refute issues of fact established by default admissions); cf. Scott v. Greenville Housing, 353 S.C. 639, 646, 579 S.E.2d 151, 155 (Ct. App. 2003) (holding that the tenets of Rule 36(a), SCRCP, regard a failure to respond to requests for admission deems the matter contained in the requests as admitted); Hatchell v. Jackson, 290 S.C. 256, 258, 349 S.E.2d 407, 408 (Ct. App. 1986) (holding a failure of a party to respond to another party’s requests for admission had the effect of deeming each matter regarding which the other party sought an admission to be admitted under Rule 36(a), SCRCP).