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2011-UP-144 - PHH Mortgage Corp v. Ross

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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

PHH Mortgage Corporation, Respondent,

v.

Harold E. Ross, II, Lysa J. Ross, Devon Forest Homeowners Association-Buxton, Inc., Defendants,

of whom Harold E. Ross, II, and Lysa J. Ross are the Appellants.


Appeal From Berkeley County
Robert E. Watson, Master-in-Equity


Unpublished Opinion No.  2011-UP-144
Submitted April 1, 2011 – Filed April 11, 2011


AFFIRMED


David K. Haller, of Charleston, for Appellants.

John Judson Hearn, of Columbia, for Respondent.

PER CURIAM:  After Harold E. Ross, II, and Lysa J. Ross (collectively the Rosses) failed to pay their mortgage loan, their lender initiated foreclosure proceedings.  The master-in-equity entered an order of default against the Rosses.  They appeal, arguing the master erred in refusing to consider their motion (1) pursuant to Rule 59(e), SCRCP, when the lender failed to present evidence of service; and (2) pursuant to Rule 60, SCRCP, despite evidence the lender engaged in fraudulent conduct.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities: 

1.  As to the master's consideration of the Rosses' motion pursuant to Rule 59(e) and evidence of service:  Rule 210(h), SCACR ("[An] appellate court will not consider any fact which does not appear in the Record on Appeal."); Dixon v. Dixon, 362 S.C. 388, 399, 608 S.E.2d 849, 854 (2005) (holding an issue raised for the first time in a post-trial motion such as one pursuant to Rule 59(e), SCRCP, is not preserved for appellate review); Doe v. S.B.M., 327 S.C. 352, 356-57, 488 S.E.2d 878, 881 (Ct. App. 1997) (citing State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (1993)) (requiring a party to object at his first opportunity to preserve an issue for appellate review); Bonaparte v. Floyd, 291 S.C. 427, 444, 354 S.E.2d 40, 50 (Ct. App. 1987) (placing upon the appellant the burden of providing a record on appeal sufficient for review). 

2.  As to the master's consideration of the Rosses' motion pursuant to Rule 60 and evidence of fraudulent conduct:  Rule 60(b)(3), SCRCP (permitting a party to move the trial court for relief from a final judgment on the basis of "fraud, misrepresentation, or other misconduct of an adverse party"); Chewning v. Ford Motor Co., 354 S.C. 72, 78, 579 S.E.2d 605, 608 (2003) ("Generally speaking, only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated will constitute fraud on the court.  Less egregious misconduct, such as nondisclosure to the court of facts allegedly pertinent to the matter before it, will not ordinarily rise to the level of fraud on the court."); Hillman v. Pinion, 347 S.C. 253, 255, 554 S.E.2d 427, 429 (Ct. App. 2001) ("Motions for relief under Rule 60(b) are within the trial court's discretion, and this court will not reverse the trial court absent an abuse of discretion."). 

AFFIRMED. 

WILLIAMS, GEATHERS, and LOCKEMY, JJ., concur.


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