TD Bank v. Lalla ( 2016 )


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  • 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
    TD Bank, N.A., Successor by merger to Carolina First
    Bank, N.A., Respondent,
    v.
    Sunil V. Lalla and Sharon W. Lalla, Appellants.
    Appellate Case No. 2015-000295
    Appeal From Georgetown County
    Joe M. Crosby, Master-in-Equity
    Unpublished Opinion No. 2016-UP-350
    Submitted March 1, 2016 – Filed July 6, 2016
    Withdrawn, Substituted and Refiled August 24, 2016
    AFFIRMED
    S. Jahue Moore and John Calvin Bradley, Jr., both of
    Moore Taylor Law Firm, P.A., of West Columbia, for
    Appellants.
    Thomas Wm. McGee, III, Allen Mattison Bogan, and
    Tara C. Sullivan, all of Nelson Mullins Riley &
    Scarborough, LLP, of Columbia, for Respondent.
    PER CURIAM: Dr. Sunil V. Lalla and Sharon W. Lalla appeal the master-in-
    equity's order and judgment of foreclosure and sale, arguing the master (1) erred in
    considering issues in the motion to alter or amend judgment that were not brought
    before the master, (2) erred in granting sale and foreclosure of the property, (3)
    erred in admitting testimony and evidence, (4) erred in finding the property in
    question was not the Lallas' primary residence, (5) improperly considered the
    absence of the Lallas in its order, and (6) erred in pronouncing judgment TD Bank,
    N.A. did not seek. We affirm pursuant to Rule 220(b), SCACR, and the following
    authorities:
    1. Issues 1 and 5 are not preserved. See Degenhart v. Knights of Columbus, 
    309 S.C. 114
    , 118, 
    420 S.E.2d 495
    , 497 (1992) ("An issue on which the [master] never
    ruled and which was not raised in post-trial motions is not properly before this
    [c]ourt.").
    2. As to issue 2, we find T.D. Bank, N.A. established the existence of the debt and
    Sunil's default on that debt. See U.S. Bank Trust Nat. Ass'n v. Bell, 
    385 S.C. 364
    ,
    374-75, 
    684 S.E.2d 199
    , 205 (Ct. App. 2009) ("Generally, the party seeking
    foreclosure has the burden of establishing the existence of the debt and the
    mortgagor's default on that debt."); id. at 375, 684 S.E.2d at 205 ("Once the debt
    and default have been established, the mortgagor has the burden of establishing a
    defense to foreclosure such as lack of consideration, payment, or accord and
    satisfaction."). Additionally, we find the master did not abuse his discretion in
    admitting the copy of the note. See Historic Charleston Holdings, LLC v. Mallon,
    
    381 S.C. 417
    , 434, 
    673 S.E.2d 448
    , 457 (2009) ("The admission of evidence is a
    matter left to the discretion of the [master] and will not be disturbed on appeal
    absent an abuse of discretion."); 
    id.
     ("An abuse of discretion occurs when the
    ruling is based on an error of law or a factual conclusion without evidentiary
    support.").
    3. We find the master did not abuse his discretion in admitting evidence of Sunil's
    loan payment history and testimony from T.D. Bank N.A.'s employee. See
    Historic Charleston Holdings, 381 S.C. at 434, 673 S.E.2d at 457 ("The admission
    of evidence is a matter left to the discretion of the [master] and will not be
    disturbed on appeal absent an abuse of discretion." ); Rawlinson Rd. Homeowners
    Ass'n, Inc. v. Jackson, 
    395 S.C. 25
    , 36, 
    716 S.E.2d 337
    , 344 (Ct. App. 2011)
    ("Generally, the admission or exclusion of testimony is a matter within the
    [master's] sound discretion and will not be disturbed on appeal absent an abuse of
    that discretion."); id. at 37, 716 S.E.2d at 344 ("An abuse of discretion occurs when
    the [master's] decision is unsupported by the evidence or controlled by an error of
    law.").
    4. As to issue 4, we find the Lallas did not raise the issue of TARP funds to the
    master. See Degenhart v. Knights of Columbus, 
    309 S.C. 114
    , 118, 
    420 S.E.2d 495
    , 497 (1992) ("An issue on which the [master] never ruled and which was not
    raised in post-trial motions is not properly before this [c]ourt."). As to whether the
    master erred in finding the mortgaged property was not the Lallas' primary
    residence, we note that Sunil stated in his affidavit that the mortgaged property is a
    second residence.
    5. As to issue 6, we find the issue regarding the deficiency judgment against
    Sharon moot. See Byrd v. Irmo High School, 
    321 S.C. 426
    , 431, 
    468 S.E.2d 861
    ,
    864 (1996) ("This [c]ourt will not pass on moot and academic questions or make
    an adjudication where there remains no actual controversy."); 
    id.
     ("Mootness has
    been defined as follows: 'A case becomes moot when judgment, if rendered, will
    have no practical legal effect upon existing controversy. This is true when some
    event occurs making it impossible for [the] reviewing [c]ourt to grant effectual
    relief.'" (quoting Mathis v. S.C. State Highway Dep't, 
    260 S.C. 344
    , 346, 
    195 S.E.2d 713
    , 715 (1973))). Additionally, we find T.D. Bank, N.A. in its complaint,
    reserved its right to a deficiency judgment and it asserted that right at the
    foreclosure hearing; thus, the master did not err in finding T.D. Bank, N.A. was
    entitled to a deficiency judgment. See Perpetual Bldg. & Loan Ass'n of Anderson
    v. Braun, 
    270 S.C. 338
    , 343, 
    242 S.E.2d 407
    , 409 (1978) (finding a deficiency
    judgment may be denied only when the right to a deficiency judgment has been
    expressly waived); Bartles v. Livingston, 
    282 S.C. 448
    , 461, 
    319 S.E.2d 707
    , 715
    (Ct. App. 1984) ("Absent grounds to set aside the decree of foreclosure, there is no
    discretion to cut off the right to a deficiency after sale where (1) the complaint in
    the foreclosure action asks for personal judgment, (2) the amount of the debt is
    fixed in the foreclosure decree, and (3) the sale is insufficient to satisfy the entire
    debt. At most, the court may, as it did in this case, defer the granting of personal
    judgment until a deficiency actually results from the sale.").
    AFFIRMED.1
    LOCKEMY, C.J., and WILLIAMS and MCDONALD, JJ., concur.
    1
    We decide this case without oral argument pursuant to Rule 215, SCACR.
    

Document Info

Docket Number: 2016-UP-350

Filed Date: 8/24/2016

Precedential Status: Non-Precedential

Modified Date: 10/22/2024