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2007-UP-272 - Mortgage Electronic Registration Systems, Inc. v. Suite
THE STATE 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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Mortgage Electronic Registration Systems, Inc., Respondent,

v.

Todd M. Suite and Suzanne Wells, Appellants.


Appeal From Calhoun County
Diane S. Goodstein, Circuit Court Judge


Unpublished Opinion No. 2007-UP-272
Submitted May 1, 2007 – Filed June 5, 2007


AFFIRMED


Frederick K. Jones, of Greer, for Appellants.

Gary H. Johnson, of Columbia, for Respondent.

PER CURIAM:    Todd M. Suite and Amy Suzanne Wells appeal the circuit court’s order finding they waived their objection that Mortgage Electronic Registration Systems, Inc. (“MERS”) is not a real party in interest and granting summary judgment in favor of MERS on all of their counterclaims.  We affirm.[1]

FACTS

On April 25, 2001 Suite and Wells executed a note promising to pay the principal sum of $181,600.00 to CTX Mortgage Company (“CTX”) at an annual interest rate of 7.25%.  The same day, a mortgage was granted naming MERS as nominee for CTX.  The mortgage was recorded with the Calhoun County Clerk of Court on May 4, 2001.  Although Suite affirms his execution of the mortgage document, there is a factual dispute as to whether Wells’ signature is authentic.

Beginning in December 2002, Suite and Wells stopped making payments on the mortgage.  In May 2003, MERS filed a summons and complaint seeking foreclosure on the related property.

In a pre-answer motion and in their answer, Suite and Wells alleged MERS was not a real party in interest in the case.  Suite and Wells also filed a counterclaim to MERS foreclosure action.  They alleged: (1) forgery relating to Wells’ signature on the mortgage document; (2) breach of contract; (3) breach of contract accompanied by a fraudulent act; (4) violation of the Unfair Trade Practices Act; and (5) violation of the Real Estate Settlement Procedures Act (RESPA).  MERS entered its reply to the counterclaims and the actions were joined. 

On May 19, 2005, MERS filed and served a motion for summary judgment, arguing the record was devoid of any evidence to support Suite and Wells’ causes of action.  After holding two separate hearings on the matter, the circuit court granted MERS summary judgment on all of Suite and Well’s counterclaims and referred the foreclosure action to the master-in-equity.  Noting the action had been pending for nearly two and half years, with multiple depositions taken and numerous discovery documents exchanged, the circuit judge found the issue relating to MERS’ standing had never been properly brought before the court and had therefore been waived.

DISCUSSION

A.  Real Party in Interest

Suite and Wells claim that MERS is not a real party in interest and that they did not waive their objection to this issue.  We disagree.

Putting the waiver issue aside, it is obvious that MERS has standing in the case sub judice.  Quite simply, MERS is listed in the mortgage as the nominee of the mortgage holder.  Furthermore, Suite and Wells have asserted and prosecuted claims against the company and represented to the court that the claims were compulsory.  Even if we were to find the circuit court incorrectly decided Suite and Wells waived the matter, there has been no reversible error, as MERS is clearly an interested party.

B.  Summary Judgment as to Suite and Wells’ Counterclaims

Suite and Wells claim the circuit court erred in granting summary judgment for MERS in regard to their numerous counterclaims.  We disagree.

When reviewing the grant of summary judgment, an appellate court applies the same standard that governs the trial court under Rule 56, SCRCP: “summary judgment is 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.” Pittman v. Grand Strand Entm’t, Inc., 363 S.C. 531, 536, 611 S.E.2d 922, 925 (2005); B & B Liquors, Inc. v. O’ Neil, 361 S.C. 267, 603 S.E.2d 629 (Ct. App. 2004). In determining whether any triable issue of fact exists, the evidence and all inferences that can reasonably be drawn therefrom must be viewed in the light most favorable to the nonmoving party.  Medical Univ. of South Carolina v. Arnaud, 360 S.C. 615, 602 S.E.2d 747 (2004).  If triable issues exist, those issues must go to the jury.  Mulherin-Howell v. Cobb, 362 S.C. 588, 608 S.E.2d 587 (Ct. App. 2005).

The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact.  McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 597 S.E.2d 181 (Ct. App. 2004).  Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent’s case, the opponent to the motion can not simply rest on mere allegations or denials contained in the pleadings, but must come forward with specific facts showing there is a genuine issue for trial.  SSI Med. Servs., Inc. v. Cox, 301 S.C. 493, 392 S.E.2d 789 (1990). 

1.  Forgery

Suite and Wells raised the issue of the alleged forgery as a compulsory counterclaim seeking affirmative relief, not simply as a defense to the foreclosure action.  The circuit court ruled there was no such cause of action recognized in South Carolina, and that even in the event such an action was recognized, the counterclaim would not survive summary judgment, as there was no evidence as to who forged the signature or regarding damages. 

The circuit court was correct that there is no such cause of action in this state.  Additionally, Suite and Wells offered no evidence as to the source of the alleged forgery, but simply alleged that MERS was the culprit.  Thus, the circuit judge properly granted MERS’ motion for summary judgment as to Suite and Wells’ counterclaim for the alleged forgery.

2.  Breach of Contract

Included in Suite and Wells’ counterclaims was a cause of action for breach of contract, more specifically, they allege MERS breached their contract through improper escrow payments.

Suite and Wells admitted they made no payments on the note after December 2002.  The lower court ruled the evidence established they were in arrears on the loan prior to the occurrence of any allegedly improper escrow payments.  The court found that under the note, timely payments were a condition precedent to any obligation regarding escrow payments.  A condition precedent, “unless excused, must exist or occur before a duty of immediate performance arises.”  Worley v. Yarborough Ford, Inc., 317 S.C. 206, 210, 452 S.E.2d 622, 624 (Ct. App. 1994).  As there was no evidence that any escrow issues occurred before Suite and Wells went into arrears on the note, summary judgment on the breach of contract counterclaim was proper.

3. Breach of Contract Accompanied by a Fraudulent Act

In order to state a claim for breach of contract accompanied by a fraudulent act, a plaintiff must plead facts establishing three elements: (1) a breach of contract; (2) fraudulent intent relating to the breaching of the contract and not merely to its making; and (3) a fraudulent act accompanying the breach.  Harper v. Ethridge, 290 S.C. 112, 348 S.E.2d 374 (1986).

Suite and Wells failed to put forth evidence to support a cause of action for breach of contract against MERS.  Moreover, the record is devoid of any evidence that MERS acted with any fraudulent intent relating to any alleged breach.  When asked whether he believed MERS committed fraud on him, Suite responded, “I don’t—I wouldn’t say fraud per se.  I think that, like I said earlier, there was a lot of confusion . . . .”  Clearly, the circuit court properly granted summary judgment as to the counterclaim for breach of contract accompanied by a fraudulent act.

4.  Unfair Trade Practices Act 

The South Carolina Unfair Trade Practices Act provides: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”  S.C. Code Ann. § 39-5-20(a) (1985).  “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by § 39-5-20 may bring an action individually . . . to recover actual damages.”  S.C. Code Ann. § 39-5-140 (1985).  An unfair trade practice has been defined as a practice that is “offensive to public policy or which is immoral, unethical, or oppressive.”  Wogan v. Kunze, 366 S.C. 583, 606, 623 S.E.2d 107, 120 (Ct. App. 2005) (citing deBondt v. Carlton Motorcars, Inc., 342 S.C. 254, 269, 536 S.E.2d 399, 407 (Ct. App. 2000)).

To be actionable under the act, the unfair or deceptive act or practice must have an impact upon the public interest and have the potential for repetition.  Haley Nursery Co. v. Forrest, 298 S.C. 520, 381 S.E.2d 906 (1989); Burbach v. Investors Management Corp. Intern., 326 S.C. 492, 484 S.E.2d 119 (Ct. App. 1997).  “The potential for repetition may be shown in two ways: 1) by showing the same kind of actions occurred in the past, thus making it likely they will continue to occur absent deterrence, or 2) by showing the company’s procedures create a potential for repetition of the unfair and deceptive acts.”  Crary v. Djebelli, 329 S.C. 385, 388, 496 S.E.2d 21, 23 (1998) (citing Daisy Outdoor Advertising v. Abbott, 322 S.C. 489, 473 S.E.2d 47 (1996)).

Suite and Wells contend the mortgage amount was increased on two separate occasions and thus constitutes a violation of the UTPA.  Even if we were to assume the mortgage was increased as they allege and in manner offensive to public policy, immoral, unethical, or oppressive, Suite and Wells failed to produce any evidence that MERS engaged in similar acts in past or that the company’s procedures created a potential for repetition.  Thus, summary judgment in regard to the Unfair Trade Practices Act counterclaim was proper.[2]  Suite and Wells’ unauthorized practice of law allegation, which is incorporated into their UTPA argument, was never presented before the circuit court and is not preserved for review.

5.  RESPA  

In their counterclaims, Suite and Wells alleged MERS failed to meet RESPA’s requirements as to timely notice of changes in the holder of their mortgage.  However, it is undisputed the note at issue was originally held by CTX and is now held by Bank of America, and Suite admits he received notice of the note’s change of ownership from CTX to Bank of America on June 25, 2001, a timeframe within RESPA’s guidelines.  Thus, there was no evidence to create a triable issue of fact regarding Suite and Wells’ claim that MERS violated RESPA, and the circuit court did not erred in its grant of summary judgment on the matter.

CONCLUSION

Accordingly, the circuit court’s decision is

AFFIRMED.

ANDERSON, HUFF, and BEATTY, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] The exact act or acts Suite and Wells contend were violations of the UTPA is not entirely clear.  Before the circuit court, their argument centered around RESPA and the alleged forgery.  However, the appeal brief seems to focus only on the alleged increase in the mortgage amount and unauthorized practice of law.  Regardless, Suite and Wells have failed to show any evidence as to the likelihood for repetition.