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2012-UP-195 - Citimortgage v. Freeman

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


Citimortgage, Inc. as Successor by merger to ABN AMRO Mortgage Group, Inc., Respondent,

v.

David Jathniel Freeman, Appellant.


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


Unpublished Opinion No.  2012-UP-195
Heard March 1, 2012 – Filed March 21, 2012 


AFFIRMED


Glenn Walters, of Orangeburg, for Appellant.

Thad H. Westbrook, Michael J. Anzelmo, and James H. Burns, all of Columbia, for Respondent.

PER CURIAM:  Appellant David Freeman appeals from an order of the master-in-equity denying his motion to set aside a foreclosure sale and ordering him to post bond of $380,000.  Freeman argues (1) the foreclosure sale should be set aside because the published notice of sale failed to comply with the statutory requirements and because Respondent CitiMortgage, Inc.  never personally served him with the amended notice of sale and (2) the amount of bond ordered by the trial court was unconstitutionally excessive.  We affirm.

1.  We find no error in the master's decision to uphold the foreclosure sale.  See Wells Fargo Bank, NA v. Turner, 378 S.C. 147, 150, 662 S.E.2d 424, 425 (Ct. App. 2008) (although the determination of whether a judicial sale should be set aside is a matter left to the sound discretion of the trial court, we review equitable matters de novo); Ex parte Moore, 352 S.C. 508, 510, 575 S.E.2d 561, 562 (2003) ("The terms and conditions of a judicial sale are controlled by court order . . . and statute."); S.C. Code Ann. §§ 15-39-650, 660 (2005) (providing notice of a judicial sale must be publicly advertised in some gazette "three weeks immediately previous to the sale day"); S.C. Code Ann. § 15-29-30 (2005) ("When the statute requires a notice to be published . . . for three weeks or twenty-one days the publication of such notice in three successive weeks shall be sufficient if at least sixteen days shall have expired after the date of the first publication and on or before the date fixed for the doing of the thing of which notice is given."); In re Madison, 438 B.R. 866, 868 (Bankr. D.S.C. 2010) (applying South Carolina law and upholding a foreclosure sale held on August 2 when notice of the sale was published on July 17, 23, and 30); Rule 5(a), SCRCP (providing personal service is not required when a party is in default); Bartles v. Livingston, 282 S.C. 448, 454, 319 S.E.2d 707, 711 (Ct. App. 1984) (upholding the validity of a foreclosure sale where the defaulting defendant had actual notice of the foreclosure proceedings and constructive notice of the judicial sale through publication in accordance with the statutory requirements).

2.  As to whether the amount of bond ordered was unconstitutionally excessive, we find the issue unpreserved for our review.  See Bickerstaff v. Prevost, 380 S.C. 521, 525-26, 670 S.E.2d 660, 662 (Ct. App. 2009) (finding constitutional arguments are no exception to the rules of preservation, and if not raised to the trial court, are deemed waived on appeal).  Even if the issue was properly preserved, we find no error.  See United Dominion Realty Trust, Inc. v. Wal-Mart Stores, Inc., 307 S.C. 102, 108, 413 S.E.2d 866, 870 (Ct. App. 1992) (holding the amount of an appeal bond is a matter committed to the sound discretion of the trial court).

AFFIRMED.

PIEPER, KONDUROS, and GEATHERS, JJ., concur.